State of Louisiana v. Walter R. Cox, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0774

STATE OF LOUISIANA

VERSUS

WALTER R. COX, SR.

************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 8925-05
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

ON REMAND FROM THE LOUISIANA SUPREME COURT

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks and Jimmie
C. Peters, Judges.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH
INSTRUCTIONS.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, LA 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Walter R. Cox, Sr.

Walter R. Cox, Sr.
Camp D. Hawk 3/R
Angola, LA 70712
PRO SE

PETERS, J.

This matter is again before us, this time on remand from the supreme court.

When we first considered his appeal, the defendant, Walter Cox, Sr., had been

convicted of manslaughter, a violation of La.R.S. 14:31(A)(2)(a); aggravated

obstruction of a highway of commerce, a violation of La.R.S. 14:96; and aggravated

criminal damage to property, a violation of La.R.S. 14:55. This court affirmed the

defendant’s conviction and sentence for aggravated criminal damage to property, but

vacated the defendant’s other two convictions and entered a judgment of conviction

of negligent homicide, a violation of La.R.S. 14:32. State v. Cox, 07-774 (La.App.

3 Cir. 1/30/08), 974 So.2d 891. Additionally, we remanded the matter to the trial

court for compliance with the notification requirements of La.Code Crim.P. art.

930.8. Id.

The State of Louisiana (state) filed an application for supervisory writs with

the supreme court questioning this court’s interpretation of La.R.S. 14:96. The

supreme court granted the writ application, State v. Cox, 08-492 (La. 10/3/08), 992

So.2d 996, reversed the ruling of this court, reinstated the jury verdict and sentences

imposed by the trial court, and remanded the matter to this court for consideration of

the issues not addressed in our original opinion. State v. Cox, 08-492 (La. 1/21/09),

____ So.2d ____. We now comply with the supreme court’s directive.

Double Jeopardy Issue

The state based its manslaughter prosecution on La.R.S. 14:31(A)(2)(a) which

provides that manslaughter, as it applies in this case, is:

(2) A homicide committed, without any intent to cause death or
great bodily harm.

(a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30.1, or of
any intentional misdemeanor directly affecting the person;

The underlying felony in this prosecution is aggravated obstruction of a highway.

Thus, in order to convict the defendant of manslaughter, the state was required to

prove beyond a reasonable doubt every element of aggravated obstruction of a

highway and that the defendant committed a homicide while engaged in the

perpetration of that felony. In one of the assignments of error this court did not

initially address, the defendant asserted that his conviction of both manslaughter and

aggravated obstruction of a highway, violate the constitutional principle that bars

double jeopardy.1 We agree.

The defendant concedes that he did not raise this issue at the trial level, but

correctly observes that double jeopardy may be raised at any time. La.Code Crim.P.

art. 594; State v. Walker, 00-1028 (La.App. 3 Cir. 1/31/01), 778 So.2d 1192; writ

denied, 01-546 (La. 2/1/02), 808 So.2d 336. The double jeopardy aspects of

manslaughter were discussed by this court in State v. Pierce, 01-94, pp. 28-29

(La.App. 3 Cir. 10/31/01), 799 So.2d 732, 749-50, writ denied, 01-3312 (La.

1/10/03), 834 So.2d 427:

In this case, the Defendant was charged and convicted of one
count of third offense DWI, two counts of manslaughter, and one count
of first degree vehicular negligent injuring. The manslaughter charges
must be supported by the commission of a felony or an attempt to
commit a felony. The Defendant was specifically charged with
manslaughter based upon the “perpetration or the attempted perpetration
of a felony grade DWI offense in violation of R.S. 14:98.” In
connection with felony DWI, the legislature specifically stated that “on
a conviction of a third offense” the offender shall be imprisoned with or
without hard labor. La.R.S. 14:98. Once convicted of manslaughter, the
Defendant was punished for the felony which he was perpetrating at the
time of the death of the victims, i.e. DWI, and cannot be punished a
second time for the same offense. A similar double jeopardy analysis

1
In his assignment of error, the defendant also brings his conviction for aggravated criminal
damage to property into the argument. However, this court previously held that the defendant’s
argument as to the conviction for aggravated criminal damage to property had no merit “because the
state based its manslaughter conviction on the underlying charge of aggravated obstruction of a
highway.” Cox, 974 So.2d at 903-04.

2

has been considered in Louisiana’s felony-murder doctrine. When proof
of the commission of a felony is an essential element of second-degree
murder, double jeopardy precludes the conviction and punishment of the
defendant for both crimes. State ex rel. Wikberg v. Henderson, 292
So.2d 505 (La.1974). Thus, by extension of the same principal [sic], the
“felony-manslaughter” conviction in this case cannot be had without
proof of all of the elements of the felony DWI. When the two offenses
are the “same” under either the Blockburger test or the “same evidence”
test, separate prosecution of each is jeopardy barred. Therefore, we are
compelled to find the Defendant’s right against double jeopardy was
violated by the convictions and resulting sentences for third offense
DWI and two counts of manslaughter. To remedy a violation of double
jeopardy, this court must vacate the conviction and sentence of the less
severely punishable offense and affirm the conviction and sentence of
the more severely punishable offense. State v. Doughty, 379 So.2d 1088
(La.1980); State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990).

Following the reasoning in Pierce, the defendant’s assignment of error does

have merit. That being the case, we vacate the conviction and sentence for

aggravated obstruction of a highway of commerce.

Sentencing Issues

The sentences imposed for the three convictions were the maximum

incarceration sentences allowable. La.R.S. 14:31(B), La.R.S. 14:55, La.R.S. 14:96.

Our conclusion that the conviction and sentence imposed for violation of La.R.S.

14:96, aggravated obstruction of a highway of commerce, must be vacated on double

jeopardy grounds renders any consideration of the sentence imposed for that violation

moot. Furthermore, in our initial opinion this court considered the sentence imposed

for the violation of La.R.S. 14:55, aggravated criminal damage to property, and

concluded that the trial court did not abuse its discretion in sentencing the defendant

to fifteen years at hard labor, the maximum incarceration sentence for that offense.

We find nothing in our subsequent review of the record on remand to change that

initial conclusion.

3

All that is left for us to review in considering this assignment of error is the

sentence imposed for violation of La.R.S. 14:31(B), manslaughter. For the reasons

set forth as a result of our initial consideration and rejection of the defendant’s claim

that the sentence imposed for aggravated criminal damage to property is excessive,

we find no abuse of discretion on the part of the trial court in sentencing the

defendant to the maximum sentence for the offense of manslaughter. Thus, we find

no merit in this assignment of error.

Pro Se Assignment of Error

In his pro se assignment of error, the defendant asserts that the trial court erred

when instructing the jury. Specifically, he complains that by reading the

manslaughter charge three separate times, but not re-reading the alternate charges, the

trial court caused confusion for both the jury and the court.

In its initial charge to the jury, the trial court made the following statement with

regard to the definition of manslaughter and how it applied to the prosecution of the

defendant:

MANSLAUGHTER IS THE KILLING OF A HUMAN BEING
WHEN THE DEFENDANT IS ENGAGED IN THE COMMISSION OR
ATTEMPTED COMMISSION OF AGGRAVATED OBSTRUCTION
OF A HIGHWAY OF COMMERCE DIRECTLY AFFECTING THE
PERSON EVEN THOUGH THERE IS NO INTENT TO KILL.

(Emphasis added.)

Neither the state nor the defendant objected to this portion of the instruction.

After retiring to deliberate, the jury sent a note to the trial court requesting to

see certain exhibits and to have the definitions of the offenses placed in writing and

provided to them. The trial court did not provide the jury with written definitions as

4

requested. Instead, the trial court read the definitions to the jury a second time.

Again, neither the state nor the defendant objected.

After the jury again retired to deliberate, the state informed the trial court that

the phrase “DIRECTLY AFFECTING THE PERSON” should not have been included

in its instruction because the language of La.R.S. 14:31(A)(2)(a) made that

requirement applicable only if an intentional misdemeanor was used as the underlying

offense. Here, the underlying offense was a felony. Thus, the state suggested, it was

error for the trial court to include the phrase “DIRECTLY AFFECTING THE

PERSON” in the instruction.

The trial court then interrupted the jury’s deliberations, caused the jury to

return to the court room, and read the jury the statutory definition of manslaughter,

not once, but twice. In reading the statutory definition, the trial court omitted the

reference to La.R.S. 14:30 and La.R.S. 14:30.1. Although the defendant’s trial

counsel raised some concerns about including the statutory language regarding

misdemeanors, suggesting that it would be tantamount to changing the predicate for

the manslaughter charge, no objection was voiced to the subsequent instruction to the

jury.

Without a contemporaneous objection by the defendant as required by La.Code

Crim.P. arts. 801 and 841, this issue was not preserved. State v. Draughn, 05-1825

(La. 1/17/07), 950 So.2d 583, cert. denied, 128 S.Ct. 537 (2007). Furthermore, the

record establishes that the trial court read six charges (including the lesser and

included offenses) in both the original instruction and the first subsequent instruction.

The second subsequent instruction was given for the limited purpose of remedying

5

a specific mistake in the previously stated definition of manslaughter. We find no

merit in this assignment of error.

DISPOSITION

After considering the remaining assignments of error, as instructed by the

supreme court, we now affirm the defendant’s convictions and sentences for both

manslaughter and aggravated criminal damage to property. We vacate the

defendant’s conviction and sentence for aggravated obstruction of a highway of

commerce based on constitutional double jeopardy grounds. We remand the matter

to the trial court with instructions to inform the defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant

within ten days of the rendition of this opinion and to file in the record of the

proceedings written proof that the defendant received the notice.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH
INSTRUCTIONS.

6