State of Louisiana v. Scot Martin Kidd

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA 22-227

STATE OF LOUISIANA

VERSUS

SCOT MARTIN KIDD

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 1495-21
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

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Court composed of Billy Howard Ezell, Jonathan W. Perry, and Gary J. Ortego,
Judges.

AFFIRMED; AND REMANDED FOR CORRECTION OF
SENTENCING MINUTES.

Bruce Gerard Whittaker
Capitol Defense Project
829 Baronne Street
New Orleans, LA 70113
(504) 595-8965
COUNSEL FOR DEFENDANT/APPELLANT:
Scot Martin Kidd

Stephen C. Dwight
Fourteenth JDC District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

David S. Pipes
Fourteenth JDC Assistant D.A.
901 Lakeshore Drive
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Scot Martin Kidd
Louisiana State Prison
MPWY/Wal-3
Angola, La 70712

ORTEGO, Judge.

Defendant, Scot Martin Kidd, appeals his conviction of two counts of first-

degree murder, in violation of La. R.S. 14:30.

FACTS AND PROCEDURAL HISTORY

On January 7, 2021, a Calcasieu Parish Grand Jury indicted Defendant, Scot

Martin Kidd, on two counts of first-degree murder, in violation of La.R.S. 14:30.

Then the State filed a “Notice of non-Capital Election” on March 2, 2021, advising

that the State would not seek capital punishment, in these indictments.

Defendant sought to suppress a pretrial statement he made to police, alleging

a Miranda violation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 602 (1996). The

State filed a motion to have the statement ruled admissible. The trial court heard the

motions on October 14, 2021, and denied Defendant’s motion, while granting the

State’s motion.

On October 18 and 19, 2021, the parties selected the trial jury, which began

hearing evidence on October 20, 2021. On October 22, 2021, upon completion of

the trial, and deliberation by the jury, Defendant was found guilty as charged on both

counts of first-degree murder. Defendant subsequently filed a motion for new trial,

which the trial court heard and denied on December 15, 2021. On December 15,

2021, the trial court sentenced Defendant to two life terms, to be served

consecutively.

Defendant now seeks review, assigning five errors through counsel and six

errors pro se, with most of the Defendant’s pro se assignments mirroring the counsel-

filed assignments.

For the following reasons, we affirm Defendant’s convictions and sentences.

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ERRORS PATENT

In accordance with Louisiana Code of Criminal Procedure art. 920, all appeals

are reviewed for errors patent on the face of the record. After reviewing the record,

we conclude that there are no errors patent. However, this court finds that the

minutes of the trial court’s sentencing requires correction, as the court minutes do

not reflect that Defendant’s life sentences, as imposed by the trial court, at hard labor,

were imposed without the benefit of parole, probation, or suspension of sentence, as

indicated in the sentencing transcript. When there is a conflict between the minutes

and the transcript, the transcript prevails. State v. Wommack, 00-137 (La.App. 3 Cir.

6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

Accordingly, we remand this case to the trial court, and order the trial court to correct

the sentencing minutes to reflect that the trial court imposed the Defendant’s

sentences to be served at hard labor, without the benefit of parole, probation, or

suspension of sentence.

ANALYSIS

ASSIGNMENT OF ERROR NUMBER 1 & PRO SE ASSIGNMENT

NUMBER 1:

In his first assignment of error, Defendant argues that the trial court erred by

denying his pre-trial motion to suppress. In said motion Defendant argued that police

improperly continued to question him after he requested assistance of counsel, thus

violating the prophylactic rules of Miranda, and Edwards v. Arizona, 451 U.S. 477,

101 S.Ct. 1880 (1981). See also State v. Payne, 01-3196 (La. 12/4/02), 833 So.2d

927. Specifically, Defendant argues that during his questioning by police, that his

statement, “I’m going to have to get an attorney,” was a clear and unambiguous

invocation of his right to counsel. The record further shows that Defendant, later in

his statement made the declaration, “Dude, I’m done. I want to get an attorney, man”

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which was immediately recognized by police as an invocation of Defendant’s right

to counsel, and after which the police ceased the interrogation of Defendant on that

date.

Thus, in the context of the entire statement given to the police, it is clear that

Defendant’s first reference to an attorney was not a request to end the interview and

consult with counsel, but rather, as testified to by Detective Casey LaFargue, at the

hearing on the Motion to Suppress, that this first statement was Defendant

verbalizing his thought process about actions he would need to take in the future.

In denying Defendant’s motion to suppress, the trial court ruled that

Defendant did not make an unambiguous request for counsel.

The Louisiana Supreme Court has ruled and explained:

Miranda v Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
requires that a suspect subject to custodial interrogation has the right to
consult with an attorney and to have counsel present during
questioning, and that the police must explain this right to the suspect
before questioning begins. Id., 384 U.S. at 469-473, 86 S.Ct. at 1625-
1627. When an accused has “expressed his desire to deal with the
police only through counsel, [he] is not subject to further interrogation
by the authorities until counsel has been made available to him unless
the accused himself initiates further communication, exchanges, or
conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-
485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). In the present case,
while demonstrating some confusion regarding his rights, Defendant
nonetheless clearly and unambiguously invoked his right to counsel at
which point the detective should have ceased further inquiry.

State v. Lagos, 18-1724, p. 1 (La. 1/28/19), 262 So.3d 277, 278 (per curiam)

(alteration in original).

Additionally, as this court has observed, Miranda is not triggered by every

reference to defense counsel:

In State v. Kelly, 95-1663, p. 6 (La.App. 3 Cir. 5/8/96), 677 So.2d
495, 499, the Defendant stated, “After all this here, do I still get a
lawyer.” This court found that the statement was not a request for the
immediate presence of an attorney. In Davis v. United States, 512 U.S.
452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court held
that an equivocal or ambiguous statement, such as “maybe I should talk

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to a lawyer,” was insufficient to constitute an invocation of the right to
counsel. In State v. Boudreaux, 597 So.2d 1235 (La.App. 3 Cir.), writ
denied, 609 So.2d 223 (La.1992), the state argued the Defendant said,
“Since you are trying to stick it all on me, I might as well get an
attorney.” Defense counsel argued the Defendant stated, “I might have
to get an attorney.” This court concluded that based on these comments
there was no indication that the Defendant requested the immediate
presence of an attorney or that he desired the interview to cease. In
Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002), the United States
Fifth Circuit Court of Appeals, sitting en banc, analyzed several cases
dealing with the issue of what is required for an unequivocal invocation
of the right to counsel; it concluded that Soffar did not unambiguously
invoke his right to counsel when he asked “whether he should get an
attorney; how he could get one; and how long it would take to have an
attorney appointed.”

State v. Poullard, 03-940, pp. 7-8 (La.App. 3 Cir. 12/31/03), 863 So.2d 702, 710-11,

writ denied, 04-908 (La. 3/18/05), 896 So.2d 995.

Comparing the remarks listed in Poullard to the phrase at issue herein, “I’m

going to have to get an attorney”, we find same was not a clear and unambiguous

invocation of his right to counsel, unlike his later declaration, “Dude, I’m done. I

want to get an attorney, man.” Therefore, we find that his first statement implies

future action, while his second statement denotes Defendant’s immediate action or

a desire for immediate action.

For these reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2 & PRO SE ASSIGNMENT OF

ERROR NUMBER 2:

In his second assignment of error, Defendant argues the trial court erred by

failing to charge the jury with the law of self-defense, pursuant to La.Code Crim.P.

art. 802, as that facet of law was applicable to the case. However, and as the State

argues, Louisiana Code of Criminal Procedure art. 801(C) precludes Defendant from

raising this issue, as he did not object to the jury instructions at trial.

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Louisiana Code of Criminal Procedure art. 801(C) states, in pertinent part:

A party may not assign as error the giving or failure to give a jury
charge or any portion thereof unless an objection thereto is made
before the jury retires or within such time as the court may
reasonably cure the alleged error. The nature of the objection and
grounds therefor shall be stated at the time of objection.

Defendant argues there is an exception to the rule of Louisiana Code of Civil

Procedure art. 801(C), pursuant to State v. Williamson, 389 So.2d 1328 (La.1980),

in which a trial court incorrectly instructed a jury regarding the elements of first and

second degree murder. That court observed that the error went to “the very definition

of the crime of which Defendant was in fact convicted.” Id. at 1331. Defendant

contends that his situation is analogous, as a self-defense claim in a homicide case

requires the State to prove that a Defendant did not act in self-defense. Defendant

argues that without a proper instruction, the jury was not informed of this

requirement.

Regarding Williamson, and this issue, the State raises three points. First, it

maintains that the instruction here did not misrepresent the definitions of the crimes

at issue. The State notes that a self-defense instruction may not have even been

available to Defendant, as the “person who . . . brings on a difficulty” cannot claim

self-defense as a defense, pursuant to La.R.S. 14:21. This latter point was not

explored during trial, likely due to the lack of a request for a self-defense instruction

by Defendant.

The State’s second point is that in Williamson, that court acted because the

record before it provided sufficient grounds for the court to conduct a full analysis,

whereas the record in the present case is not sufficient for a proper analysis of the

assignment of error. The record simply is not clear as to why trial counsel neither

requested a self-defense instruction, nor objected to the instructions as given.

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Shortly before trial, Defendant filed a notice that he would assert only a defense of

voluntary intoxication, and not as to self-defense. Also, in defense counsel’s

opening, he suggested the State would not be able to prove the elements of the crime,

and it was only later when Defendant took the stand that Defendant first testified

that he acted in self-defense. In his closing, defense counsel very briefly referred to

self-defense but, as already noted, took no action to request that self-defense

instruction be given as part of the jury instructions. In its closing, the State alluded

to Defendant’s several competing defense theories, including Defendant’s denials to

police that he was even at the scene of the crime. The State argued that some of

defense counsel’s examinations of State witnesses appeared to question whether

Defendant was even present at the victims’ residence. Defendant’s mixed defense

theories at trial suggest that Defendant may have “surprised” or “ambushed” his own

trial counsel by giving testimony that may have presented a self-defense scenario.

We find that the lack of clarity on this point, along with Defendant’s mixed defense

theories, renders the record insufficient to invoke and carry the Williamson

exception.

In its final point under this assignment of error, the State notes that subsequent

jurisprudence has called Williamson into question or has at least limited its reach.

The State cites another supreme court case:

In State v. Williamson, 389 So.2d 1328 (La.1980), we allowed
review of an erroneous jury instruction despite the Defendant’s failure
to object at trial. We express no opinion on whether this court will
again grant review under the unique facts of Williamson, but leave that
as an open question. However, Williamson should not be construed as
authorizing appellate review of every alleged constitutional violation
and erroneous jury instruction urged first on appeal without timely
objection at occurrence. This court has not created or recognized a
plain error rule of general application.

State v. Thomas, 427 So.2d 428, 435 (La.1982); See also State v. Hongo, 96-2060

(La. 12/2/97), 706 So.2d 419.

6

We agree and find that in light of Defendant’s failure to request a self-defense

instruction, or object to the jury instructions as given by the trial court, that this

assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3 & PRO SE ASSIGNMENT OF

ERROR NUMBER 3:

In his third assignment of error, Defendant argues his trial counsel was

ineffective for failing to request that the jury be instructed regarding self-defense.

As the parties correctly observe, ineffective assistance of counsel claims are

governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), which

sets forth a two-step test: (1) counsel’s performance must be shown to have been

deficient, and (2) said deficient performance must have prejudiced the defense. See

also State v. Washington, 491 So.2d 1337 (La.1986).

The State argues that the facts of this case record does not warrant reversal for

ineffective counsel, and states in its brief:

As noted by the Defendant, a claim of ineffective assistance of
counsel is generally more appropriately raised in an application
for post -conviction relief, as the application allows for the
opportunity for a full evidentiary hearing to explore the various
issues raised by the application. State v. Christien, 09-890 (La.
App. 3d [sic] Cir. 02/03/10); 29 So. 3d 696. Such should be the
result here.

As observed in the previous assignment of error, the record is unclear

regarding both the defense’s trial strategy and theory of the case. A review of this

record reflects Defendant’s several competing defense theories, including his denial

to police that Defendant was even at the scene of the crime, shows there is at least

the possibility that Defendant’s testimony of self-defense surprised even his own

trial counsel. As such, in a situation as this, it appears from the record that the

defense counsel’s performance was not deficient pursuant to Strickland.

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The pro se brief reveals another layer of complexity, as it refers to trial

counsel’s assertion at the hearing on the motion for new trial, that Defendant perhaps

should have entered a plea of not guilty and not guilty by reason of insanity due to

Defendant’s alleged prior brain injury and post-traumatic stress disorder. Also,

defense counsel suggested his trial preparation may have been affected by

circumstances that stemmed from hurricane damage to his office and residence.

Sorting out these competing, and possible conflicting defense theories or

strategies will necessitate information regarding communications between

Defendant and his trial counsel. Since attorney and client communications are

necessarily outside this record, we find that this issue should properly be relegated

to the post-conviction relief process, wherein the parties will be able to further

develop the record. State v. Miller, 99-192 (La. 9/6/00), 776 So.2d 396, cert. denied,

531 U.S. 1194, 121 S. Ct. 1196 (2001).

For these reasons, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4 & PRO SE ASSIGNMENT OF

ERROR NUMBER 4:

In his fourth assignment of error, Defendant argues the trial court erred by

denying his motion for new trial. He contends that evidence regarding jewelry, that

allegedly belonged to the victims, was not disclosed by the State, “thus lulling [him]

into a misapprehension about the strength of the State’s case”. Defendant made a

similar contention in his motion for new trial, and Defendant also makes this

argument in his pro se brief.

By law, a trial court’s ruling on a motion for new trial is reviewed for abuse

of discretion. State v. King, 15-1283 (La. 9/18/17), 232 So.3d 1207. The brief of

the attorney and the pro se brief properly state a key standard for discovery

violations, and as to the issue of whether the alleged violations lulled Defendant into

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a false impression of the strength of the State’s case, is the case of State v. Davis,

399 So.2d 1168 (La.1981).

The defense attorney’s and Defendant’s pro se briefs allege that evidence

regarding some items of jewelry was not provided in discovery, with the pro se brief

also raising the matter of the testimony related to a quantity of cash. These potential

discovery issues came to light when Defendant took the stand to testify in his own

defense. When the State cross-examined Defendant, it asked a single question about

cash that the male victim may have had in a front pocket. Defendant denied taking

any money, and the State asked why no money was found in the victim’s pocket,

and the defense counsel failed to object to this line of questioning by the State.

Later, the State questioned Defendant as to whether he stole jewelry that

belonged to the female victim. At that point, defense counsel objected, arguing the

specific items of jewelry at issue had not been identified during the State’s case-in-

chief. The parties and the court then engaged in a bench conference that was focused

entirely on the jewelry. Ultimately, the trial court allowed questioning to continue,

reasoning that Defendant was subject to full cross-examination, as he had chosen to

take the witness stand.

After Defendant rested, defense counsel renewed his objection to questioning

regarding the jewelry. The court reiterated “that by taking the stand [Defendant]

opened himself up to be questioned about whether he stole jewelry or not.”

On rebuttal, and pursuant to Defendant’s testimony, the subject of the cash

and the jewelry arose again. The State called the victims’ son, Dwayne O’Brien,

who testified that a pendant and bracelet at issue had belonged to his mother. Also,

he testified that the night before the victims were found dead, the victims were at

Dwayne’s house, and when the victims left, the male victim had $750 in his pocket.

Dwayne testified that when he saw his father’s dead body the next morning, it was

9

in the same clothes that Dwayne had seen on his father the prior evening, and his

father’s cash was never recovered.

After trial, Defendant filed a motion for new trial. He challenged the

testimony regarding the jewelry, alleging lack of discovery. He included similar

arguments regarding the apparently missing cash. At the hearing on the motion,

Defendant’s counsel argued that the cash, approximately $750, was not mentioned

in discovery. He made a similar allegation regarding the jewelry. The State

responded that it only learned about the cash when Defendant was on the stand at

trial. Further, the State pointed out that details regarding the jewelry were part of

discovery. The record reflects that the State’s third supplemental response to

discovery is on a CD and is included with the record. The police report included

therein includes several references to items of jewelry that Defendant allegedly

attempted to sell or gave to his ex-girlfriend. The report also included information

indicating the jewelry belonged to the female victim.

Regarding the cash, the trial court noted the State’s assertions that it did not

realize that the cash was significant until Defendant testified, and that the State did

provide information regarding the jewelry in discovery. Addressing the cash issue,

the trial court observed: “those are the kind of things that happen in real-time during

trials.” In reference to the jewelry, the trial court noted the State’s point that it

provided all pertinent information in discovery. Additionally, and as already

discussed, the record demonstrates that the State provided all pertinent information

about the jewelry in discovery. Thus, we find that there was no discovery violation

regarding the jewelry.

As for evidence related to the cash, Defendant suggests that it might have been

better for the trial court to grant a recess so that Defendant could assess evidence

that was allegedly new to the Defendant. However, as discussed earlier, Defendant

10

failed to raise a contemporaneous objection when the State first questioned

Defendant about the cash. Courts have viewed the failure to contemporaneously

object to a discovery violation or request a remedy to such a violation as a waiver of

the objection. State v. Bonanno, 373 So.2d 1284 (La.1979); State v. Stracener, 94-

998 (La.App. 3 Cir. 3/1/95), 651 So.2d 463, writ denied, 97-696 (La. 11/7/97), 703

So.2d 1261; Louisiana Code of Criminal Procedure art. 841.

Additionally, we find that since the discovery included all pertinent

information about the jewelry, and Defendant chose to take the stand, it is doubtful

and unknown that his knowledge of the cash-related evidence would have deterred

Defendant from testifying. Further, Defendant admitted to taking other items, such

as firearms from the victims’ residence, when he left after the shootings. Defendant

knew of the firearms and other related evidence, and thus should have known from

the discovery as to the evidence of the jewelry and other related items allegedly taken

from the victims and their residence. Additionally, Defendant and his trial counsel

should have known of the accompanying implications of theft or robbery that could

arise from such evidence when Defendant took the stand at trial. Therefore, we find

that Defendant has failed to demonstrate that he was “lulled” into a misapprehension

of the strength of the State’s case, when he chose to testify; and, thus we find that

the trial court did not abuse its discretion in denial of Defendant’s motion for a new

trial.

For the reasons discussed, these assignments, both attorney-filed and pro se,

lack merit.

ASSIGNMENT OF ERROR NUMBER 5 & PRO SE ASSIGNMENT OF

ERROR NUMBER 5:

In his fifth assignment of error, Defendant claims, in the attorney-filed, and

pro se briefs, that the consecutive sentence of his two mandatory life sentences

11

renders them excessive. Defendant does not contest the underlying mandatory life

terms at hard labor required by La.R.S. 14:30, as Defendant merely made an oral

general objection to the sentences. Defendant’s Motion to Reconsider Sentence

merely stated a general claim of excessiveness, thus Defendant raises this issue that

the consecutive sentence of his two mandatory life sentences renders them excessive

for the first time in this appeal. We therefore conclude that Defendant is precluded

from raising the issue of the consecutive nature of the sentences for the first time on

appeal. Louisiana Code of Criminal Procedure art. 881.1(B); State v. Bourque, 99-

1625, (La.App. 3 Cir. 6/21/00), 762 So.2d 1139, writ denied, 00-2234 (La. 6/1/01);

793 So.2d 181; State v. Escobar Rivera, 11-496, (La.App. 5 Cir. 1/24/12); 90 So.3d

1, writ denied; 12-409 (La. 5/25/12), 90 So.3d 411.

Additionally, and as stated by this court previously as to this exact issue,

“Since [the Defendant] has but one life to serve, it is difficult to see that a consecutive

sentence would penalize him excessively.” State v. Dennard, 482 So.2d 1067, 1068

(La.App. 3 Cir. 1986).

Therefore, we find that this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 6:

In Defendant’s final pro se assignment of error, Defendant complains that the

trial court erred by ruling that the parties could not discuss “compromise verdicts”

or jury nullification during jury selection. The record contains the following relevant

colloquy, to-wit:

THE COURT:

By the way, I’m going to go ahead and just going to tell
y’all. I’m going to -- based on the last trial that I had, I’m going
to make I guess a ruling, I guess a preemptive statement I guess
[sic] because that last trial I had I guess turned into something
that was something that kind of went off the rails a little bit and
that’s the first time that I’ve had that happen and I don’t want it
to be repeated, which is that apparently -- and it had to do with a

12

case that involved something that happened a few weeks earlier
apparently with Judge Wyatt in a trial that he had and the Third
Circuit not-for-publication rulings that were made with regard to
responsive verdicts or whatever, but let me just say this. We are
not going to talk about compromise verdicts in jury selection.
Now, you can talk about responsive verdicts, you can talk about,
you know, the responsive verdicts the law allows you to consider.
You could talk about -- because that State v. Porter case that was
discussed, that dealt with a whole set of issues that doesn’t, you
know, -- there’s a difference between the Supreme Court
recognizing practicality on appeal because in that particular case
the trial court took away some responsive verdicts, you know,
and the Supreme Court recognized, look, jurors, even in the face
of overwhelming evidence, can come back with responsive
verdicts and that’s just something that they can do. Everybody
recognizes that jurors -- we don’t control what they do. In that
jury deliberation room, they can do things and we don’t have any
control. That’s their -- that’s what they can do. You know, we
don’t always -- sometimes we scratch our heads and wonder why
they did what they did, but that’s what they can do, but there’s a
difference between understand[ing] that a jury -- that jurors have
a right -- you know, that jurors do things and have a right to do
things when they’re in the jury deliberation room that we have
no control over and instructing them and telling them that this is
the law that they can do things, I mean there’s a big difference is
that [sic] and I think that, you know, looking at the appeal, you
know, looking at something in that context versus telling them -
- giving them instructions because I think telling them that they
have a right to basically ignore the law in jury selection I think is
just inappropriate and I think that’s kind of where that discussion
goes in jury selection and I don’t think it’s appropriate and so
were [sic] are not going to go there.

You can talk all you want about responsive verdicts, but
we’re not going to talk about, you know, basically jury
nullification and how, you know, they have a right -- even if they
think all elements are proven that they have a right to even, you
know, come back with a responsive verdict anyway. I don’t think
that’s appropriate for jury selection purposes and discussions and
so I’m not going to allow that to take place. So, I just want to
make sure everybody realizes that up front, so we don’t even get
there.

MR. CASANAVE:

Is that an order of the Court, Your Honor?

THE COURT:

That is an order of the Court.

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MR. CASANAVE:

I object to the Court’s ruling.

THE COURT:

Let the record so reflect. And I just want to make it clear.
You know, I’m not saying that you can’t -- you know, you can
talk about responsive verdicts, but we’re just not going to talk
about, you know -- there was an argument -- well, I guess I’m
just going to clarify. There’s an argument that the Porter case
stands for that proposition because that’s what was argued, and
the Porter case doesn’t stand for the proposition that you tell the
jurors -- that you can tell jurors that in jury selection. That Porter
case stands for the proposition that the appellate courts recognize
that jurors do that, and they can do that, but not that you tell them
that ahead of time, you know, so -- but anyway, which I think
there’s a big difference in there, but I’ll let your objection be
noted for the record.

Thus, the trial court clarified that it would properly instruct the jury about

responsive verdicts, and that the parties would be able to argue regarding responsive

verdicts during closing arguments. The subject of responsive verdicts was discussed

during jury selection, and therefore, the trial court then properly instructed the jury

regarding responsive verdicts. During deliberations, the jury asked for clarification

of the definitions of first-degree and second-degree murder, and manslaughter, and

in response to same, the parties agreed that the trial court would provide the jury a

copy of the trial court’s instructions.

Further, the trial court in its colloquy referenced the case of State v. Porter,

93-1106, p. 11 (La. 7/5/94), 639 So.2d 1137, 1143-44, which states in pertinent part:

In the determination of whether to exclude the statutorily
authorized responsive verdict, the issue was not whether the trial court
believed the verdict of simple rape was the most accurate
characterization of the conduct under the evidence, but whether the
evidence would have supported the jury’s verdict of simple rape under
the statute defining that offense. If it would, the Defendant under the
legislative scheme had a right to have the jury consider returning the
lesser verdict which is specifically included under Article 814.

14

As the trial court stated, the Porter court mentioned jury nullification in a

footnote, but as the language above shows, the case was focused on statutory

responsive verdicts.

Additionally, in the case of State v. Campbell, 21-437 (La.App. 3 Cir. 7/13/21)

(unpublished opinion) (footnote omitted), this court ruled and stated:

WRIT GRANTED AND MADE PEREMPTORY, IN PART;
WRIT DENIED, IN PART: The defense filed a writ application with
this court seeking supervisory review of the trial court’s July 12, 2021,
ruling limiting the scope of voir dire concerning defense counsel’s
discussion of responsive verdicts. To the extent the district court
prohibited Defendant’s discussion both of lesser included offenses and
of compromise verdicts as set forth under State v. Porter, 639 So.2d
1137 (La.1994), Defendant’s writ application is granted. Defendant is
allowed to discuss with the jury venire the lesser included offenses in
this case as well as the use of those lesser included offenses to reach a
compromise verdict. Defendant is additionally allowed to ask questions
to ascertain the jury venire’s understanding thereof.

To the extent defense counsel, in brief, seeks to extend the scope
of voir dire to include questions regarding the venire’s attitude toward
returning a responsive verdict even though the jurors have found the
charged offense proven beyond a reasonable doubt, Defendant’s writ
application is denied. See State v. Holmes, 06-2988 (La.12/2/08), 5
So.3d 42, cert. denied, 558 U.S. 932, 130 S.Ct. 70 (2009); see also,
State v. Tilley, 99-569 (La. 7/6/00), 767 So.2d 6, cert. denied, 532 U.S.
959, 121 S.Ct. 1488 (2001).

The case is remanded to the trial court for actions consistent with
this ruling.

As this court states in its finding that Campbell’s ruling is supported by both

logic and practicality, as it is not feasible to state a legal requirement that juries must

be instructed that they can ignore the law or the evidence before them. This court

further notes that in State v. Chatman, 43,184, p. 14 (La.App. 2 Cir. 4/30/08), 981

So.2d 260, 271, the second circuit ruled that Defendants do not have a right to a jury

instruction on outright nullification, i.e., “to disregard uncontradicted evidence and

instructions by the trial court.”

Considering the forgoing, this court finds that this assignment lacks merit.

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DECREE

For the foregoing reasons, we affirm the Defendant’s convictions and

sentences. Additionally, we remand this case to the trial court to correct the

sentencing minutes to reflect that the trial court imposed Defendant’s two mandatory

life sentences to be served at hard labor, without the benefit of parole, probation, or

suspension of sentence, with proper notice to Defendant of this correction of the

sentencing minutes, within thirty (30) days from this judgment.

AFFIRMED; AND REMANDED FOR CORRECTION OF
SENTENCING MINUTES.

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