State of Louisiana v. Lisa M. Brown

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-910

STATE OF LOUISIANA

VERSUS

LISA M. BROWN

**********

APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 89,783
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

REVERSED AND REMANDED.

James Edward Beal
Louisiana Appellate Project
P. O. Box 307
Jonesboro, LA 71251-0307
Telephone: (318) 259-2391
COUNSEL FOR:
Defendant/Appellant - Lisa M. Brown

J. Reed Walters
District Attorney - 28th Judicial District Court
Walter Evans Dorroh, Jr.
Assistant District Attorney - 28th Judicial District Court
P. O. Box 1940
Jena, LA 71342
Telephone: (318) 992-8282
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

A jury convicted Defendant, Lisa M. Brown, of possession of cocaine.

She appeals that conviction and asserts two assignments of error. She contends the

trial court erroneously advised her that her sentence was not subject to diminution for

good behavior pursuant to La.R.S. 15:571.3, and it erroneously refused to give a

nullifying instruction to the jury on the charge of possession of drug paraphernalia.

Because we find that the trial court erred in failing to give the requested instruction

and the error was not harmless, we vacate Defendant’s conviction and sentence and

remand this case to the trial court. Thus, Defendant’s first assignment of error is

rendered moot.

I.

ISSUES

We must decide whether the trial court erroneously refused to give a

nullifying instruction to the jury on the charge of possession of drug paraphernalia.

II.

FACTS AND PROCEDURAL HISTORY

Police stopped a vehicle in which Defendant was a passenger. During

the stop, police observed a small Maverick cigarette box and a chrome cylinder-

shaped object outside the driver’s door. Police suspected the chrome object was used

to smoke crack cocaine. Additionally, a spoon containing cocaine residue was found

during a search of the backseat where Defendant was sitting. Clear cellophane

wrapped in aluminum foil was found in the pocket of another passenger.

The spoon, two metal tubes, and the piece of aluminum foil containing

pieces of plastic all contained white residue that tested positive for cocaine.

Defendant admitted she smoked crack cocaine earlier in the day and that the

paraphernalia and/or the crack pipe belonged to her.

Defendant was charged by bill of information with possession of

cocaine, in violation of La.R.S. 40:964. Defendant entered a plea of not guilty. A

jury found Defendant guilty as charged. Defendant was subsequently sentenced to

five years at hard labor, three of which were suspended. She was ordered placed on

five years active supervised probation upon her release from incarceration. She was

also ordered to pay a fine of $1,000 and costs of the proceedings. A motion to

reconsider sentence was denied. A motion for appeal was filed and subsequently

granted.

III.

LAW AND DISCUSSION

Trial Court’s Failure to give Nullifying Instruction

Defendant contends the trial court erroneously refused to give a

nullifying instruction to the jury on the charge of possession of drug paraphernalia.

Before the trial court gave its final jury instructions, defense counsel objected to the

instructions because the trial court failed to include the responsive verdict of

possession of drug paraphernalia. The trial court then stated the following:

[T]his is a situation where I think that it would present
additional exposure for Ms. Brown, as to having an
additional responsive verdict for possession of drug
paraphernalia in this jury instructions.[sic] Quite honestly,
which would not be under a normal possession of drug
paraphernalia, I mean, possession of cocaine. I do believe
that according to the law and according to my notes that
are contained in the Civil Law Treatise, I do believe there
is a notice requirement provided and that such a notice has
to be more so than just talking about it in the middle of
trial. I believe there has to be some type of pleading or
some type of pretrial proceeding that has - that notice is
provided specifically. Therefore, that is the reason why I
did not include it as a responsive verdict in the case
2

specific instructions contained in this - in the proposed jury
instructions. And that’s the reason for my ruling. . . .

Defendant cites the statute governing special jury charges and contends

that had the trial court instructed the jury on the elements of possession of drug

paraphernalia, the verdict may have been different. We agree.

Louisiana Code of Criminal Procedure Article 807, entitled “Special

Written Charges,” provides:

The state and the defendant shall have the right
before argument to submit to the court special written
charges for the jury. Such charges may be received by the
court in its discretion after argument has begun. The party
submitting the charges shall furnish a copy of the charges
to the other party when the charges are submitted to the
court.

A requested special charge shall be given by the
court if it does not require qualification, limitation, or
explanation, and if it is wholly correct and pertinent. It
need not be given if it is included in the general charge or
in another special charge to be given.

State v. Simmons, 01-293, pp. 4-5 (La. 5/14/02), 817 So.2d 16, 19-20

explained the significance of Article 807:

By its own terms, this article requires written
submission of requested “special charges.” . . . Special
charges are to be distinguished from general charges, that
category under which lesser and included grades of the
charged offense, i.e., responsive verdicts pursuant to
La.C.Cr.P. art. 815, fall. See Ralph Slovenko, Control
Over the Jury Verdict in Louisiana Criminal Law, 20 La.
L.Rev. 657, 663-67 (1960) (distinguishing special charges
from general charges and explaining, under the heading of
“general charges,” that the trial judge “must charge the law
as to the lesser included offense which the jury can return
a verdict”). This court recognized this distinction in State
v. Wilson, 315 So.2d 646, 649 (La.1975), as follows:

The trial judge is required to charge the jury
as to the law that is “. . . applicable to the
case.” La.Code Crim.P. art. 802 (1966). This
includes all other offenses of which the
accused may be convicted by responsive
verdict. Id. art. 803. In addition to the
3

charges that the trial judge must give in every
case, article 807 allows the state and the
defendant to submit requested special
charges.

Because responsive verdicts that are required by
La.C.Cr.P. arts. 803 and 815 are not special charges, they
are not required to be requested in writing pursuant to
La.C.Cr.P. art. 807.

Louisiana Code of Criminal Procedure Article 814(50.1) provides the

following responsive verdicts for Ms. Brown’s charged offense, possession of

cocaine:

Guilty.

Guilty of attempted possession of cocaine.

Guilty of possession of drug paraphernalia.

Not guilty.

The possession of drug paraphernalia verdict is
responsive only if there is evidence of drug paraphernalia,
as defined in R.S. 40:1031, in the charged offense of
possession of cocaine.1

Louisiana Revised Statutes 40:1021 defines drug paraphernalia as

follows:

(1) All equipment, products, and materials of any
kind which are used, intended for use, or designed for use
in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of the
Uniform Controlled Dangerous Substances Law, as
scheduled in R.S. 40:964.

1
Louisiana Revised Statutes 14:1031 reads as follows: “It is the purpose of this Part to
establish a permit system to allow animal control facilities to acquire and administer sodium
pentobarbital for the humane euthanasia of sick, homeless, and abandoned animals.” Article
814(50.1) contains a typographical error. We assume the legislature meant to reference La.R.S.
40:1021, which defines the term drug paraphernalia.

4

....

(3) Kits used, intended for use, or designed for use
in manufacturing, compounding, converting, producing,
processing, or preparing controlled substances.

....

(10) Containers and other objects used, intended for
use, or designed for use in storing or concealing controlled
substances.

....

(12) Objects used, intended for use, or designed for
use in ingesting, inhaling, or otherwise introducing
marijuana, cocaine, hashish, or hashish oil into the human
body, such as:

(a) Metal, wooden, acrylic, glass, stone, plastic, or
ceramic pipes with or without screens, permanent screens,
hashish heads, or punctured metal bowls.

(b) Water pipes.

....

(f) Miniature cocaine spoons, and cocaine vials.

“When a count in an indictment sets out an offense which includes other

offenses of which the accused could be found guilty under the provisions of Article

814 or 815, the court shall charge the jury as to the law applicable to each offense.”

La.Code Crim.P. art. 803. “Failure of the trial judge to fully charge the permissible

verdicts then applicable to the charge in the indictment requires a reversal of the

conviction.” State v. Ferguson, 358 So.2d 1214, 1221 (La.1978). Nevertheless, the

mandatory nature of Article 803 is tempered by La.Code Crim.P. art. 814(C), which

provides that:

Upon motion of the state or the defendant, or on its own
motion, the court shall exclude a responsive verdict listed
in Paragraph A if, after all the evidence has been
submitted, the evidence, viewed in a light most favorable
to the state, is not sufficient reasonably to permit a finding
of guilty of the responsive offense.
5

Thus, if no evidence reasonably supporting a verdict exists, that verdict may be

excluded as a possible responsive verdict.

Clearly, this case involves evidence of drug paraphernalia2. Thus, the

trial court erred in failing to give the requested jury instruction because it was a

general charge, not a special charge. We decline to review such an error under a

harmless error analysis.

In Simmons, 817 So.2d 16, the defendant was charged with unauthorized

entry of an inhabited dwelling, but found guilty of attempted unauthorized entry of

an inhabited dwelling. At trial, the defendant requested the trial court instruct the

jury that criminal trespass was a responsive verdict. The trial court refused.

The supreme court found criminal trespass was a lesser and included

offense and failure to include the requested instruction on criminal trespass was not

harmless error because there was a reasonable probability that the error affected the

outcome of the trial. The supreme court then noted:

Given the fact that the jury, after requesting further
instruction, returned a verdict of the only lesser included
offense offered, it is entirely possible that the jury would
have returned a verdict for the lesser misdemeanor offense
of criminal trespass if that charge had been given. This
difference is significant since defendant would have
escaped sentencing as a multiple offender under La. R.S.
15:529.1 if the jury had convicted him of criminal trespass,
a misdemeanor.

Id. at 21. The supreme court then reversed the defendant’s conviction and sentence

for attempted unauthorized entry of an inhabited dwelling.

In State v. Johnson, 01-06 (La. 5/31/02), 823 So.2d 917, the defendant

was tried and convicted of battery on a police officer while in the custody of a

correctional facility. During recess following jury selection, the trial court rejected

2
We note that in the State’s opening statement, counsel described at least two items classified
as “drug paraphernalia” that were found in the car—a crack pipe and a metal spoon.

6

a joint proposal that it charge jurors with respect to the responsive verdicts of simple

battery of a police officer outside of a correctional facility and simple battery. At the

close of evidence, defense counsel renewed his request, which the trial court again

rejected. In accord with its view that the charged crime had no lesser included

offenses, the trial court instructed jurors that the only two responsive verdicts in the

case were guilty as charged and not guilty. After brief deliberation, jurors found the

defendant guilty as charged.

The supreme court noted:

[T]hough the jury’s plenary power of compromise does not
altogether preclude harmless-error analysis when a trial
court has erred with respect to charging lesser and included
offenses, it does place that analysis beyond a purely
quantitative measure of the evidence presented at trial.
Harmless-error analysis may apply in a case in which a trial
judge inadvertently omits one or more responsive verdicts
or lesser included offenses but includes others in its jury
charge and the jury rejects a compromise by returning a
verdict of guilty as charged. . . .

However, in Louisiana, a trial judge has no authority
to decide unilaterally that an instruction on lesser and
included offenses is not necessary because overwhelming
evidence exists to convict the defendant on the crime
charged and reasonable jurors therefore could not
rationally acquit on the greater offense but could convict
on a lesser offense. The court has limited authority to
exclude those statutory responsive verdicts provided for
specific offenses by La.C.Cr.P. art. 814(A) only when
those verdicts are not supported by the evidence in a
particular case. La.C.Cr.P. art. 814(C); cf. [State v.] Porter,
93-1106 at 9, [(La. 7/5/94),] 639 So.2d [1137] at 1142
(option of striking particular statutory responsive verdicts
is “not designed to give trial courts and prosecutors the
option to strike a lesser offense as a responsive verdict in
order to prevent the jury from returning a compromise
verdict . . . supported by the evidence, even if the evidence
also supports a verdict of the charged offense.”). Nor may
a reviewing court sanction a similar result, when a trial
court as in the present case erroneously concludes that the
charged crime has no lesser included offenses, by applying
a test of harmless error keyed to the weight of the evidence
supporting the charged offense. As we underscored in
Porter, Louisiana’s system of responsive verdicts
7

presupposes a jury’s authority to compromise its verdict
even in the face of overwhelming evidence of the charged
crime.

In Louisiana, juries are sworn to render a verdict
“according to the law and the evidence.” La.C.Cr.P. art.
790. The jurisprudence has allowed jurors to return a
lesser responsive verdict fully supported by the same
evidence which would also demonstrate, beyond a
reasonable doubt, that the charged crime occurred. In the
present case, the trial court’s decision to foreclose that
opportunity had stark consequences for relator in terms of
his sentencing exposure. It was otherwise clear that he had
struck the deputy sheriff, but the difference between a
misdemeanor and felony conviction, a decision which
properly belonged solely within the prerogative of the jury,
ultimately became the difference between six months in jail
and life imprisonment at hard labor.

Id. at 922-23. The supreme court reversed the defendant’s conviction, vacated his

sentence, and remanded the matter to the trial court for further proceedings.

In State v. Hernandez, 02-340 (La.App. 5 Cir. 7/30/02), 824 So.2d 529,

the defendant was charged with and convicted of unauthorized entry of an inhabited

dwelling. The fifth circuit reversed his conviction and remanded the matter for a new

trial because the defendant requested the trial court instruct the jury that the crime of

criminal trespass was a responsive verdict to the charged offense, and the trial court

refused to do so.

In State v. Allen, 08-326 (La.App. 4 Cir. 12/10/08), 2 So.3d 499, writ

denied, 09-31 (La. 9/25/09), 18 So.3d 81, the defendant was charged with purse

snatching. A jury unanimously found him guilty as charged. The fourth circuit

reversed the defendant’s conviction and sentence for purse snatching and remanded

the matter for a new trial because the trial court refused to give the requested

instruction for the responsive verdict of theft. The court relied on its ruling in State

v. Marts, 98-99 (La.App. 4 Cir. 5/31/00), 765 So.2d 438, when reversing the

defendant’s conviction.

8

In Marts, the defendant was convicted of purse snatching. On appeal,

the defendant argued the trial court’s failure to include theft as a responsive verdict

was reversible error. The fourth circuit found that under the facts presented, the jury

should have been allowed to consider and should have been instructed on the possible

verdict of guilty of theft. The court then stated the following:

Unlike purse snatching, the sentencing range for theft
varies depending on the value of the property taken, and
theft is not a crime of violence that necessitates a more
severe penalty for a multiple offender. Therefore, the trial
court’s error was highly prejudicial, and necessitates that
the matter be remanded for a new trial.

Id. at 445 (footnote omitted).

This court concludes, based on Hernandez, 824 So.2d 529, Allen, 2

So.3d 499, and Marts, 765 So.2d 438, that Defendant’s conviction must be reversed,

her sentence vacated, and the matter remanded to the trial court for further

proceedings. We note that this case is similar to Hernandez, 824 So.2d 529. In both

cases, the defendants were convicted as charged. Additionally, in Allen, 2 So.3d 499,

as in this case, the defendant was convicted as charged, and the verdict was

unanimous. In Marts, 765 So.2d 438, the fourth circuit found the trial court’s failure

to give the requested jury instruction was highly prejudicial. Because first offense

possession of drug paraphernalia is a misdemeanor and the charged offense and the

responsive verdict given are felonies, we find that the trial court’s failure to give the

requested instruction for possession of drug paraphernalia was highly prejudicial to

Defendant. For these reasons, we find that the trial court erred in failing to give the

requested jury instruction. Thus, Defendant’s conviction is reversed, her sentence is

vacated, and the matter is remanded to the trial court for further proceedings.

9

Our reversal of Defendant’s conviction renders moot any discussion of

whether the trial court erroneously advised Defendant that her sentence was not

subject to diminution for good behavior.

IV.

CONCLUSION

The trial court erred in failing to give the requested jury instruction.

Thus, we reverse Defendant’s conviction, vacate her sentence, and remand this action

to the trial court for further proceedings.

REVERSED AND REMANDED.

10