State v. Martin

92 So. 3d 1027, 11 La.App. 1 Cir. 1843, 2012 WL 1548949, 2012 La. App. LEXIS 732
CourtLouisiana Court of Appeal
DecidedMay 2, 2012
DocketNo. 2011 KA 1843
StatusPublished
Cited by5 cases

This text of 92 So. 3d 1027 (State v. Martin) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Martin, 92 So. 3d 1027, 11 La.App. 1 Cir. 1843, 2012 WL 1548949, 2012 La. App. LEXIS 732 (La. Ct. App. 2012).

Opinion

WELCH, J.

|2The defendant, John H. Martin, was charged by bill of information with armed robbery (count one), a violation of La. R.S. 14:64; armed robbery, use of firearm, additional penalty (count two), a violation of La. R.S. 14:64.3; aggravated burglary (count three), a violation of La. R.S. 14:60; and attempted first degree murder (count four), a -violation of La. R.S. 14:30 and La. R.S. 14:27. The defendant pled not guilty on all four counts. The trial court granted the defendant’s oral motion to quash count three (aggravated burglary) on the grounds of double jeopardy.1

After a trial by jury, the defendant was found guilty as charged on counts one and two, and found guilty of the responsive offense of attempted second degree murder on count four, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. On count one, the trial court sentenced the defendant to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, the trial court imposed the additional penalty of five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence (to be served consecutively to the sentence imposed on count one). On count four, the trial court sentenced the defendant to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence (to run concurrently with the sentences imposed on counts one and two).2 The ^defendant now appeals, arguing that the prosecution for both attempted first degree murder and armed robbery, the underlying felony, violates the double jeopardy prohibition under federal and state constitutions. For the following reasons, we affirm the convictions on all counts. On counts one and two, we affirm the sentences, and on count four, we vacate the sentence and remand for resen-tencing.

STATEMENT OF FACTS

During the early morning hours of June 6, 2006, armed with guns, the defendant and at least one other perpetrator forcibly entered a trailer home in Gonzales, Louisiana, threatened to kill the occupants if they made any sudden moves, and demanded money and drugs at gunpoint.3 [1030]*1030One of the occupants, Samuel Charles, was told to get out of bed and lie face down on the floor and was asked where money was located in the home. Charles complied with the perpetrators’ demands and gave them his wallet, while his girlfriend, Lane-tra Alexander, and two of her children remained in the bed. One of the perpetrators instructed the other to kill Charles, but when the other perpetrator pulled the trigger in compliance, the gun jammed. The perpetrators then fled from the scene.

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant submits that he was charged with both attempted first degree murder, under the theory that he attempted to kill someone while committing armed robbery, and with armed robbery. Thus, he posits that the armed robbery of the attempted murder victim in this case was the underlying felony, which formed the basis for attempted first degree murder. The defendant argues that this subjects him to double jeopardy in violation of state and |4federal double jeopardy prohibitions as the acts constituting armed robbery were required to convict him of each crime, thereby exposing him to punishment twice for the same acts. Noting that the attempted second degree murder conviction is the less severely punishable offense, the defendant concludes that it should be reversed and that the sentence imposed thereon should be vacated. As noted in its response brief, the State agrees with the defendant’s assertions. We note that the State’s brief incorrectly indicates that the defendant was found guilty as charged on count four (attempted first degree murder) when, as previously noted, the record indicates that the defendant was actually found guilty of the responsive offense of attempted second degree murder.

The Double Jeopardy Clauses of the United States and Louisiana constitutions not only prohibit successive trials for the same offense but also protect against multiple punishments for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15; La.C.Cr.P. art. 591; State v. Murray, 2000-1258 (La.9/18/01), 799 So.2d 453, 454-55 (per curiam). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Green, 96-0256 (La.App. 1st Cir.12/10/96), 687 So.2d 109, 112. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held 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 an additional fact which the other does not. The broader “same evidence” test dictates that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. This test depends on the proof necessary for a conviction, not all the evidence that is actually presented at trial. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

|fiAs previously noted, in this case before the trial began, the defendant made an oral motion to quash count three, aggravated burglary, on the grounds of double jeopardy. The defendant specifically argued that aggravated burglary and armed robbery have the same elements and that [1031]*1031therefore, the lesser of the two offenses, aggravated burglary, should be quashed under the double jeopardy prohibition. The trial court granted the motion to quash the aggravated burglary charge. That ruling is not contested on appeal. Nonetheless, the defendant now argues that the attempted second degree murder and armed robbery convictions present another double jeopardy claim.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). The gravamen of attempted second degree murder is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. La. R.S. 14:27 and 14:30.1; See State v. Jarman, 445 So.2d 1184, 1189 (La.1984); State v. Barnett, 96-2050 (La.App. 1st Cir.9/23/97), 700 So.2d 1005, 1009. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Bishop, 2001-2548 (La.1/14/03), 835 So.2d 434, 437.

As noted by the defendant and the State on appeal, the State in its opening and closing arguments indicated that the attempted first degree murder charge was based on the underlying felony of armed robbery. A conviction for both attempted felony murder and the underlying felony is improper. State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990); State v. Stewart, 400 So.2d 633, 635 n. 4 (La.1981).

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Bluebook (online)
92 So. 3d 1027, 11 La.App. 1 Cir. 1843, 2012 WL 1548949, 2012 La. App. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martin-lactapp-2012.