State of Louisiana v. Dannie Lee Lafleur

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1383

STATE OF LOUISIANA

VERSUS

DANNIE LEE LAFLEUR

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 88688-FB
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

CONVICTION AND SENTENCE
VACATED IN PART.

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Dannie Lee LaFleur

Dannie Lee LaFleur
CBC U/L Cell #13
Louisiana State Penetintiary
Angola, LA 70712
In Proper Person

Trent Brignac
District Attorney
Gregory J. Vidrine
Assistant District Attorney
Thirteenth Judicial District
P. O. Drawer 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

PETERS, J.

A jury convicted the defendant, Dannie Lee Lafleur, of first degree murder,

a violation of La.R.S. 14:30, and armed robbery, a violation of La.R.S. 14:64.

Thereafter, the trial court sentenced the defendant to serve life in prison without

benefit of parole, probation, or suspension of sentence on the first degree murder

conviction;1 and to serve twenty-five years in prison, without the benefit of parole,

probation, or suspension of sentence on the armed robbery conviction. The trial

court ordered that the sentences run consecutively. In his appeal, the defendant

asserts in his sole assignment of error that his convictions and sentences constitute

double jeopardy.

The State of Louisiana (state) charged the defendant with the two offenses

by grand jury indictment. The indictment reads in pertinent part:

DANNIE LEE LAFLEUR committed the offenses(s) of:

Count #1: First Degree Murder La.R.S. 14:30

Count #2: Armed Robbery La.R.S. 14:64

in the Parish of Evangeline in that:

Count #1: Dannie Lafleur, on or about May 6, 2011, committed the
offense of First Degree Murder by the killing of Tuc Thanh Do[.]

Count #2: Dannie Lafleur, on or about May 6, 2011, committed
Armed Robbery of Tat Nail, by use of force or intimidation while
armed with a dangerous weapon, to wit: a firearm[.]

Tuc Thanh Do, together with his wife, Thao Thi Thanh Le, owned Tat Nail Salon

in Evangeline Parish. On May 6, 2011, the defendant shot and killed Tuc Thanh

Do during the commission of an armed robbery of the couple’s business

establishment.

1
The State of Louisiana had previously announced that it was not seeking the death
penalty in the prosecution of the first degree murder charge.

Louisiana Revised Statutes 14:30 provides that there are a number factual

scenarios which will constitute first degree murder. Although the grand jury

indictment does not specify which section of the statute applies to this particular

prosecution, the facts presented make it clear that the state brought the charge

pursuant to La.R.S. 14:30(A)(1), which provides in pertinent part that “[f]irst

degree murder is the killing of a human being . . . [w]hen the offender has the

specific intent to kill or to inflict great bodily harm and is engaged in the

perpetration or attempted perpetration of . . . armed robbery[.]”

Thus, despite the silence of the grand jury indictment, the defendant was

charged with the first degree murder of Tuc Thanh Do based on armed robbery as

the underlying felony. In fact, that theory of prosecution was made clear to the

jury in the state’s closing argument:

Normally I would take that jury sheet and I would go through each
and every element of these crimes but what I just or what the State has
just told you there’s no question that an armed robbery was
committed. Money was taken from Mr. Do, from the nail shop in his
control by the use of force or armed with a weapon. The Judge is
gonna tell you that armed with a weapon, a gun is a weapon . It fits.
This is beyond reasonable doubt that this was committed. First
Degree Murder requires the killing of a human being. Mr. Do was
killed. The offender has specific intent to kill. Again the Judge will
instruct you when you have a gun and you point it at somebody from
less than three feet that’s specific intent to kill and engaged in an
armed robbery. Well the armed robbery has been discussed.

A person cannot twice be placed in jeopardy for the same offense. U.S.

Const. amend. V; La.Const. art. I, § 15. The defendant argues, and the state

acknowledges, that it is well-settled that convictions for both a felony murder and

the underlying felony violate double jeopardy protections. See State v. Marshall,

81-3115, 94-461 (La. 9/5/95), 660 So.2d 819.2

2
In Marshall, the supreme court found that the defendant’s conviction of attempted first
degree murder during an armed robbery and the armed robbery itself violated the constitutional
prohibition against double jeopardy.
2

Nonetheless, the state asserts on appeal that the defendant’s convictions do

not violate the constitutional double jeopardy protection because it could have

separately charged the defendant with the armed robbery of the victim’s wife and

that “convictions for felony murder and a felony arising out of the same occurrence

are not invalidated when another felony could have served as a predicate offense in

the underlying felony murder conviction.” In support of this argument, the state

directs us to Neville v. Butler, 867 F.2d 886 (5th Cir. 1989), a case which arose

from a Louisiana prosecution. While we do not disagree with the holding in

Neville, we do not find that it supports the state’s position in this case.

The defendant in Neville had been charged with one count of armed robbery

of Joyce Bourg and Helen Capitano, and one count of attempted first degree

murder of Ms. Capitano. The offenses occurred when he entered a Terrebonne

Parish bar owned by Ms. Bourg, where Ms. Capitano worked as a barmaid, and

robbed the two women at gunpoint. Ms. Bourg gave the defendant money from

the cash register and her purse, but when Ms. Capitano reached for her own purse,

the defendant shot her in the leg and ran out of the bar. He pled guilty to both

charges, was sentenced, and began serving his time. The matter came before the

Louisiana courts again when the defendant filed an application for post-conviction

relief asserting that his convictions violated his constitutional rights on double

jeopardy principles.

After exhausting his state court remedies, the defendant sought relief in

federal court. The federal district court denied him relief, but the Fifth Circuit

granted him relief. In addressing the merits of the double jeopardy claim, the court

stated:

Respondents assert that the appropriate test for determining
whether petitioner has been subject to double jeopardy is that
3

enunciated in Blockburger v. United States, 284 U.S. 299 (1932). In
Blockburger, the Court held that “[t]he applicable rule is that where
the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof
of a fact which the other does not”. Id. at 304. Here respondents
asserted that, since conviction for attempted first degree murder
requires proof of elements and facts different from that required to
convict for armed robbery, petitioner has not been placed in double
jeopardy.

When one of the offenses involved is felony murder, however, a
different rule is applied. In Harris v. Oklahoma, 433 U.S. 682 (1977)
(per curiam), the Court held that one cannot be convicted of both
felony murder and the underlying felony, reasoning that “[w]hen, as
here, conviction of a greater crime, murder, cannot be had without
conviction of the lesser crime, robbery with firearms, the Double
Jeopardy Clause bars prosecution for the lesser crime after conviction
of the greater one”. Id. at 682. Moreover, the converse is true:
conviction of a lesser-included offense bars subsequent conviction of
the greater offense. Brown v. Ohio, 432 U.S. 161, 168-69 (1977).
This follows because a lesser or greater-included offense is, for
double jeopardy purposes, the “same offense”. Id. at 168.

Three years after Harris, the Court in Illinois v. Vitale, 447 U.S.
410 (1980), elaborated on its holding in Harris, stating that “for
purposes of the Double Jeopardy Clause, we did not consider the
crime generally described as felony murder as a separate offense
distinct from its various elements. Rather, we treated a killing in the
course of a robbery as itself a separate statutory offense, and the
robbery as a species of lesser-included offense”. Id. at 420.

The rule clearly emerging from Harris and its progeny is that
the double jeopardy clause bars prosecution for both felony murder
and the underlying felony.

Id. at 888-89 (alterations in original).

The court in Neville went on to explain that the rule did not apply to all situations:

The rule under consideration, however, does not invalidate
convictions of both felony murder and a felony arising out of the same
occurrence where it is shown that another separate felony could have
served as the predicate offense underlying the felony murder
conviction. For example, in Sekou [v. Blackburn, 796 F.2d 108], we
held that there would be no double jeopardy violation where the
defendant was found guilty of armed robbery at trial and later pleaded
guilty to felony murder “if the state could have proved felony-murder
without also proving armed robbery”. 796 F.2d at 111. Since there
was “absolutely no indication that the state intended to prove only the
4

armed robbery as the basis for a felony-murder conviction”, we held
that there was no double jeopardy violation. Id. It was apparent from
the facts in Sekou that the state could have proved kidnapping as an
alternative underlying felony. Id. at 111, n. 3.

Petitioner argues that, since in his case armed robbery is a
lesser-included offense of attempted first degree felony murder,
conviction of both offenses places him twice in jeopardy for the same
offense. He further argues that there are no other felonies arising
from the holdup at the bar for which he possibly could be convicted
and which independently could support the felony murder conviction
without violating the double jeopardy clause. Respondents argue that
there is no double jeopardy violation since petitioner pled guilty to not
two but three crimes: attempted first degree murder of Capitano,
armed robbery of Capitano and armed robbery of Bourg.
Accordingly, respondents argue, even if petitioner’s conviction of
both armed robbery and attempted murder of Capitano would result in
double punishment for the same offense, the convictions nevertheless
should stand since the armed robbery of Bourg could have served as a
separate predicate offense underlying the felony murder conviction.

Since this case involves a double jeopardy challenge to
convictions after pleading rather than after trial, it is difficult to rule
confidently on the crucial issue of whether one or two armed robbery
offenses were involved. [U.S. v.] Atkins [], 834 F.2d 434 [(5th. Cir.
1987)] (since there was no trial, the court’s task of evaluating
petitioner’s double jeopardy claim was made “more complicated”).
Our task here is the more difficult because the district court declined
to hold an evidentiary hearing before summarily rejecting petitioner’s
claim. Nevertheless, after examining the record and the briefs, and
after hearing oral argument, we are convinced that petitioner’s double
jeopardy claim should be sustained.

An examination of the two counts arising from the holdup at the
bar to which petitioner pled guilty exposes the double jeopardy
problem. Count One charged armed robbery of “one, Joyce Bourg
and Helen Capitano” in violation of La.Rev.Stat.Ann. 14:64 (armed
robbery). On its face, therefore, Count One clearly charged petitioner
with a single offense which fortuitously involved two victims, rather
than two separate armed robberies. State v. Ware, 345 So.2d 33, 35
(La.1977); State v. Foe, 337 So.2d 491, 492 (La.1976); see also
Ladner v. United States, 358 U.S. 169, 178 (1958) (single discharge of
gun which harmed two victims held to be a single offense under
federal assault statute). Furthermore, assuming arguendo that the
facts surrounding the holdup of the bar possibly might support two
armed robbery counts, the state is precluded from prosecuting
petitioner for two armed robberies because it opted in the indictment
to state the charge as it did. Foe, supra, 337 So.2d at 492.

Id. at 889-90 (footnote omitted).
5

In the matter now before us, there is one armed robbery with two victims,

and the state opted in its presentation of the evidence to designate the armed

robbery as the underlying felony offense. Thus, we find that the present case is

analogous to the factual scenario in Neville in that the indictment charged the

defendant with a single offense, robbing the nail-salon owners, Tuc Thanh Do and

Thao Thi Thanh Le. Pursuant to the reasoning in Neville, double jeopardy

occurred in the present case.

In order to remedy the violation of double jeopardy, we vacate the

conviction and sentence of the less severely punishable offense. State v. Doughty,

379 So.2d 1088 (La.1980). Accordingly, the defendant’s conviction and sentence

for armed robbery is vacated.3

DISPOSITION

For the foregoing reasons, we vacate the defendant’s conviction and

sentence for armed robbery based on constitutional double jeopardy.

CONVICTION AND SENTENCE VACATED IN PART.

3
The defendant has not appealed his conviction and sentence for first degree murder;
therefore, we do not address them.
6