State v. Washington

522 So. 2d 628, 1988 La. App. LEXIS 786
CourtLouisiana Court of Appeal
DecidedMarch 10, 1988
DocketNo. KA-7184
StatusPublished
Cited by9 cases

This text of 522 So. 2d 628 (State v. Washington) 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. Washington, 522 So. 2d 628, 1988 La. App. LEXIS 786 (La. Ct. App. 1988).

Opinions

GULOTTA, Chief Judge.

Elton Washington and Thaddeus Bentley appeal from their convictions on two counts of armed robbery, violations of LSA-R.S. 14:64. We affirm.

FACTS

Around midnight on July 9, 1983, Sharon Escarra and Peter Babin were walking in the French Quarter when two men robbed them at gunpoint of jewelry, a purse, and a wallet. The men fled in a car, but were stopped two blocks away for a traffic violation. Both victims identified Washington and Bentley on the scene as the perpetrators. Pistols and stolen property were confiscated.

On February 25, 1985, each defendant was found guilty as charged of two counts of armed robbery. Washington was sentenced to fifteen years at hard labor on each count, both sentences to run consecutively; and Bentley was sentenced to serve two consecutive ten year sentences. Appealing, Washington only requests review of the record for errors patent, while Bentley has raised three assignments of error concerning jury instructions, voir dire, and the State’s rebuttal argument.

ERRORS PATENT

Upon reviewing the record for errors patent, we find that the minute entries do not indicate whether defendants were present during voir dire, the rendition of judgment, and sentencing. Nevertheless, the transcript of the voir dire examination indicates that the two defendants were “introduced” to the prospective jurors who were then questioned collectively whether they knew defendants. Similarly, the transcript of trial indicates that both defend[630]*630ants were identified in court and were found guilty and sentenced on the same day. Under these circumstances, because the transcripts establish that both defendants were present at these stages of trial, the silence of the minute entries on this point is harmless. See State v. Dillon, 511 So.2d 850 (La.App. 4th Cir.1987).

We further note that the trial judge failed to order that defendants’ sentences be served without benefit of parole, probation, or suspension of sentence. This error is favorable to the defendants, however, and cannot be corrected on appeal where neither the defense nor the State seeks a review of the sentences. See State v. Fraser, 484 So.2d 122 (La.1986).

JURY INSTRUCTIONS

In his first assignment of error, Bentley contends that the judge gave the jury a confusing and repetitious charge on the definition of “reasonable doubt” that misled the jury to convict him under a lesser standard of proof. According to Bentley, the charge failed to state that reasonable doubt could arise from a lack of evidence. Further, the defendant complains that the trial judge erred by limiting the jurors in his charge to the facts before them, and failed to inform them that they could “go outside the evidence” to give him the benefit of every reasonable doubt arising from the evidence or lack thereof as set forth in LSA-C.Cr.P. Art. 804. He further argues that the use of the phrase “moral certainty” in the charge misled the jurors instead of allowing them to decide the meaning of the self-explanatory concept of “reasonable doubt” in their own minds. We disagree.

Concerning “reasonable doubt”, LSA-C. Cr.P. art. 804 provides in pertinent part:

“A. In all cases the court shall charge the jury that:
(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The court may, but is not required to define “the presumption of innocence” or “reasonable doubt” or give any other or further charge upon the same than that contained in this article.”

Formerly, in State v. Mack, 403 So.2d 8 (La. 1981), the Supreme Court required that the exact words of LSA-C.Cr.P. 804 be included in jury charges. In State v. Rault, 445 So.2d 1203 (La.1984), cert. denied Rault v. Louisiana, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984), Mack was overruled, and the Supreme Court held that a charge substantially complied with LSA-C.Cr.P. art. 804 where it instructed the jury that a reasonable doubt would arise if, after considering both proven and unproven facts, the jury found “the evidence unsatisfactory upon any single point”.

In the instant case, the following charge on reasonable doubt was given to the jury:

“If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendants’ guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal. Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the defendants. This doubt must be a reasonable one, that is, one founded upon a real, tangible, substantial basis, and not upon mere caprice, fancy, or conjecture. It must be such a doubt as would give rise to a grave uncertainty raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certainty of the defendants’ guilt. If, after giving a fair and impartial consideration to all of the facts in the case, you find the evidence [631]*631unsatisfactory upon any single point indispensably necessary to constitute the defendants’ guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.
“The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. It is incumbent upon the State to prove the offense charged, or legally included in the indictment to your satisfaction and beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious doubt for which you could give good reason.”

Although the charge does not specifically instruct the jury to consider both “proven and unproven” facts or the “lack of evidence”, as in Rault, the charge in the instant case advised the jurors that a reasonable doubt justifying a verdict of not guilty would arise if they considered “all of the facts of the case” and found unsatisfactory evidence upon any single point that was indispensably necessary to constitute guilt. Consequently, we conclude that the charge substantially complies with LSA-C. Cr.P. art. 804.

We further reject Bentley’s argument that the use of the phrase “moral certainty” in defining reasonable doubt confused the jury.

In State v. McDaniel, 410 So.2d 754 (La. 1982), the Supreme Court was confronted with a jury charge defining reasonable doubt as “... a doubt that would give rise to great uncertainty in your minds by reason of the unsatisfactory character of the evidence ...

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State v. Washington
522 So. 2d 628 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
522 So. 2d 628, 1988 La. App. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-lactapp-1988.