State of Louisiana v. Christopher J. Wells , 209 So. 3d 709 ( 2015 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #063
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 8th day of December, 2015, are as follows:
PER CURIAMS:
2014-K -1701 STATE OF LOUISIANA v. CHRISTOPHER J. WELLS (Parish of Orleans)
(Second Degree Murder)
Accordingly, the ruling of the court of appeal is reversed and
the matter is remanded for consideration of defendant’s remaining
assignments of error.
REVERSED AND REMANDED.
12/08/15
SUPREME COURT OF LOUISIANA
NO. 2014-K-1701
STATE OF LOUISIANA
VERSUS
CHRISTOPHER J. WELLS
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
PER CURIAM:
Defendant Christopher J. Wells shot and killed Brandon McCue on
May 4, 2008. Defendant shot the victim four times at close range in front of
eyewitnesses in the parking area of the trailer park on Chef Menteur
Highway where McCue lived. Defendant was charged with second degree
murder. He admitted he shot the victim but claimed he did so in self-defense.
At trial, the state‘s witnesses testified defendant came to the parking
area to purchase marijuana from the victim but drove away when the victim
told him he had none to sell. Defendant then returned after a short time and
began goading the victim, who had a handgun but never brandished it or
threatened defendant with it. The victim exited his vehicle and defendant
returned to his own, retrieved a handgun, and shot the victim. Defendant also
testified he came to the parking area hoping to purchase marijuana from the
victim. He said they argued when the victim claimed he had none to sell.
According to defendant, the victim then pointed a handgun at him and
instructed him to leave. Defendant returned to his own vehicle, retrieved a
handgun, and shot the victim because he saw him ―messing with the slide‖
of his weapon.
The jury found defendant guilty of manslaughter and the trial court
sentenced him to serve 25 years imprisonment at hard labor. Defendant
appealed contending, among other claims, that the jury was incorrectly
instructed as to what constitutes justifiable homicide, which is governed by
La.R.S. 14:20 and at the time of this homicide provided:
A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably
believes that he is in imminent danger of losing his life or receiving
great bodily harm and that the killing is necessary to save himself
from that danger.
(2) When committed for the purpose of preventing a violent or
forcible felony involving danger to life or of great bodily harm by one
who reasonably believes that such an offense is about to be committed
and that such action is necessary for its prevention. The circumstances
must be sufficient to excite the fear of a reasonable person that there
would be serious danger to his own life or person if he attempted to
prevent the felony without the killing.
(3) When committed against a person whom one reasonably
believes to be likely to use any unlawful force against a person present
in a dwelling or a place of business, or when committed against a
person whom one reasonably believes is attempting to use any
unlawful force against a person present in a motor vehicle as defined
in R.S. 32:1(40), while committing or attempting to commit a
burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling,
a place of business, or a motor vehicle as defined in R.S. 32:1(40),
against a person who is attempting to make an unlawful entry into the
dwelling, place of business, or motor vehicle, or who has made an
unlawful entry into the dwelling, place of business, or motor vehicle,
and the person committing the homicide reasonably believes that the
use of deadly force is necessary to prevent the entry or to compel the
intruder to leave the premises or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the
person committing the homicide is engaged, at the time of the
homicide, in the acquisition of, the distribution of, or possession of,
with intent to distribute a controlled dangerous substance in violation
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of the provisions of the Uniform Controlled Dangerous Substances
Law.
B. For the purposes of this Section, there shall be a presumption
that a person lawfully inside a dwelling, place of business, or motor
vehicle held a reasonable belief that the use of deadly force was
necessary to prevent unlawful entry thereto, or to compel an unlawful
intruder to leave the premises or motor vehicle, if both of the
following occur:
(1) The person against whom deadly force was used was in the
process of unlawfully and forcibly entering or had unlawfully and
forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to
believe that an unlawful and forcible entry was occurring or had
occurred.
C. A person who is not engaged in unlawful activity and who is
in a place where he or she has a right to be shall have no duty to
retreat before using deadly force as provided for in this Section, and
may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the
possibility of retreat as a factor in determining whether or not the
person who used deadly force had a reasonable belief that deadly
force was reasonable and apparently necessary to prevent a violent or
forcible felony involving life or great bodily harm or to prevent the
unlawful entry.
In addressing this claim, the court of appeal reproduced the pertinent jury
instructions as follows:
Justifiable homicide. A homicide is justifiable, one, when committed
in self-defense by one who reasonably believes that he is in imminent
danger of losing his life or receiving great bodily harm, and that the
killing is necessary to save himself from that danger; two, when
committed for the purpose of preventing a violent or forcible felony
involving danger to life or of great bodily harm by one who
reasonably believes that such an offense is about to be committed, and
that such action is necessary for its prevention.
The circumstances must be sufficient to excite fear of a reasonable
person that there would be serious danger to his own life or person if
he attempted to prevent the felony without the killing.
Three, a person who is not engaged in unlawful activity and who is in
a place where he or she has a right to be shall have no duty to retreat
before using deadly force as provided for in this section, and may
stand his or her ground and meet force with force.
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Four, no finder of fact shall be permitted to consider the possibility of
retreat as a factor in determining whether or not the person who used
deadly force was reasonable and apparently reasonable to prevent a
violent or forcible felony involving life or great bodily harm to
prevent the unlawful—the lawful entry.
Burden of proof, justification defense. If you find that the defendant
has raised the defense that his conduct was justified, the State must
prove that the defendant's conduct was not justified. Remember, the
State bears the burden of proving the guilt of the defendant beyond a
reasonable doubt.
Self-defense. A homicide is justifiable if committed in self-defense by
one who reasonably believes that he is in imminent danger of losing
his life or receiving great bodily harm, and that the killing was
necessary to save himself from that danger. The danger need not have
been real, as long as the defendant reasonably believed that he was in
actual danger.
Some factors that you should consider in determining whether the
defendant had a reasonable belief that the killing was necessary,
number one, the possibility of avoiding the necessity of taking human
life by retreat; number two, the excitement and confusion of the
occasion; number three, the possibility of avoiding of preventing the
danger to himself by using force less than killing; and four, that the
defendant's knowledge of his assailant's dangerous character.
Thus, if you find, number one, that the defendant killed in self-
defense; and two, that the defendant believed that he was in danger of
losing his life or receiving great bodily harm; and three, that the
defendant believed the killing was necessary to save himself from the
danger; and four, that the defendant's beliefs were reasonable in light
of the circumstances, then you must find the defendant not guilty.
Burden of proof, self-defense. A defendant who raises the defense that
he acted in self-defense does not have the burden of proof on that
issue. The State must prove beyond a reasonable doubt that the
homicide was not committed in self-defense.
Aggressor doctrine. A person who is the aggressor or who brings on a
difficulty cannot claim the right of self-defense, unless he withdraws
from the conflict in good faith and in such a manner that his adversary
knows, or should know, that he desires to withdraw and discontinue
the conflict.
In determining whether or not the defendant was the aggressor, you
must consider the nature of the confrontation and whether the victim's
actions were a reasonable response.
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Thus, if you find that the defendant was the aggressor or that he
brought on the difficulty, you must reject his claim of self-defense
unless you find, number one, that he withdrew from the conflict and
two, that his withdrawal was in good faith; and three, that he withdrew
in a manner that put his adversary on notice that he wished to
withdraw and discontinue the conflict.
State v. Wells, 11-0744, pp. 19-20 (La. App. 4 Cir. 7/11/14), 156 So. 3d 150,
162-63 (emphasis and italics omitted).
The court of appeal noted that La.R.S. 14:20 was amended by 2006
La. Acts 141 to add Section D above, which prohibits the finder of fact from
considering the possibility of retreat as a factor in determining whether the
use of deadly force was reasonable and necessary. The court of appeal found
the instructions were internally contradictory and confusing because ―[o]n
the one hand, the trial judge instructs the jury that they are specifically
prohibited from considering the possibility of retreat as a factor in
determining whether or not the person who used deadly force was
reasonable and the actions apparently reasonable to prevent a violent or
forcible felony, . . . [but] on the other hand, not much later she counters that
instruction with the instruction that the jurors may consider the possibility of
avoiding the necessity of taking human life by retreat when evaluating the
reasonableness of the defendant's beliefs at the time of the killing . . . .‖
Wells, 11-0744, pp. 21-22, 156 So. 3d at 164. Citing this Court‘s
determination in State v. Wilkins, 13-2539, p. 1 (La. 1/15/14), 131 So. 3d
839, 839-40, that the effect of the 2006 amendment was to supplant
―Louisiana's long-standing jurisprudential rule that a person has no absolute
duty to retreat from a life-threatening situation, but that the possibility of
retreat is a factor in determining whether the use of deadly force in response
was justified under all of the circumstances of the lethal encounter,‖ the
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court of appeal found the trial court erred in instructing jurors—in a
homicide committed after the 2006 amendment—that they could consider
the possibility of retreat as a factor in determining whether the use of deadly
force was reasonable:
Thus, in light of the clarity of the Legislature‘s adoption of
Article 20 D and now in light of Wilkins as well as the unanimity
among the Mahler panel members as to the scope of the prohibition
set forth in the article, we discern no basis to deviate from their
expression of the import and application of Article 20 D in a killing
which occurred after its effective date. Thus, the trial court‘s jury
instructions comport neither with the directive of Article 20 D or
controlling precedent.
Accordingly, we find that the jury instructions which directed
or authorized the jurors to consider the possibility of the defendant‘s
retreat in determining whether the killing was necessary were not
merely confusing but also legally erroneous.
Wells, 11-0744, p. 23-24, 156 So. 3d at 165 (footnote omitted).
Correctly recognizing that ―harmless-error analysis applies to
instructional errors so long as the error at issue does not categorically
‗vitiat[e] all the jury‘s findings‘‖, Hedgpeth v. Pulido, 555 U.S. 57, 61, 129
S. Ct. 530, 532, 172 L. Ed. 2d 388 (2008) (citing Neder v. United States, 527
U.S. 1, 11, 119 S. Ct. 1827, 1834, 144 L. Ed. 2d 35 (1999) and quoting
Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d
182 (1993)), the court of appeal found it could not declare beyond a
reasonable doubt that the error in providing conflicting instructions on the
duty to retreat was harmless. Specifically, the court of appeal found, in light
of the prosecutor‘s repeated references to the possibility of retreat, that any
confusion experienced by jurors as a result of the conflicting instructions
was likely resolved in favor of believing the possibility of retreat was a
consideration in determining whether the use of deadly force was
reasonable. See Wells, 11-0744, p. 31, 156 So. 3d at 169. Based on factual
6
discrepancies in the testimony regarding whether the victim brandished his
handgun or not, the court of appeal found if the jury had not been instructed,
contrary to La.R.S. 14:20(D), that they could consider the possibility
defendant could retreat rather than use deadly force, then they might have
found defendant acted reasonably in shooting the victim. See Wells, 11-
0744, p. 32, 156 So. 3d at 169-70.
One member of the panel (Landrieu, J.) dissented on the basis that
defendant was engaged in the unlawful act of attempting to buy marijuana
when he shot the victim, and the 2006 amendment to La.R.S. 14:20 clearly
distinguishes between persons who are engaged in lawful and unlawful
activities. The dissent noted that the legislature in La.R.S. 14:20(C) declared
that a person who is not engaged in an unlawful activity and who is in a
place where he or she has a right to be has no duty to retreat before using
deadly force. Likewise, in the closely related provision of La.R.S. 14:20(D),
the legislature prohibited a finder of fact from considering the possibility of
retreat as a factor in determining whether the person who used deadly force
in accordance with Section C acted reasonably. See Wells, 11-0744, p. 1-2,
156 So. 3d at 170 (Landrieu, J., dissenting) (―Because these individuals do
not have a duty to retreat, it makes sense that the legislature also included in
the 2006 amendment a provision prohibiting a jury and/or judge from
considering the possibility of retreat as a factor in determining whether the
use of deadly force by such an individual was reasonable and therefore
justifiable as self-defense.‖). Thus, the dissent would find in the present
case, in which defendant admitted he was engaged in an unlawful act, that
La.R.S. 14:20(D) did not prohibit jurors from considering whether defendant
could have retreated in determining whether he acted reasonably in resorting
7
to deadly force, and therefore the trial court did not err in instructing the
jury.
We granted the state‘s application to review the correctness of the
ruling of the court of appeal. Finding the court of appeal erred for the
reasons that follow, we reverse and remand for consideration of defendant‘s
remaining assignments of error.
The 2006 amendment originated as H.B. 89, which, according to its
digest, proposed amending La.R.S. 14:19 (pertaining to use of force or
violence in defense) and La.R.S. 14:20 (pertaining to justifiable homicide) to
make three changes to the law. First, the bill would establish ―a presumption
that a person lawfully inside a dwelling, place of business, or motor vehicle
held a reasonable belief that the use of force or violence or deadly force was
necessary to prevent unlawful entry thereto, or to compel an unlawful
intruder to leave the premises or motor vehicle‖, when two conditions are
met:
(1) The person against whom the force or violence was used was in
the process of unlawfully and forcibly entering or had unlawfully and
forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to
believe that an unlawful and forcible entry was occurring or had
occurred.
Second, according to the digest, the bill would create a right to stand one‘s
ground by providing that ―a person who is not engaged in unlawful activity
and who is in a place where he or she has a right to be shall have no duty to
retreat before using force, violence, or deadly force and may stand his or her
ground and meet force with force.‖ Third, the bill would provide ―immunity
from criminal prosecution for use of force or justifiable homicide when force
is used pursuant to proposed law.‖ The bill was amended in the House
8
Committee on the Administration of Criminal Justice to replace immunity
from prosecution with provisions prohibiting a finder of fact from
considering the possibility of retreat as a factor in determining whether the
person who used force or violence or deadly force did so reasonably.1
A National Rifle Association spokesperson addressed the House
Committee on April 19, 2006, in support of the bill. In response to
questioning, the spokesperson clarified that, although the proposed
presumption would apply only when a person who is lawfully inside his or
her dwelling, place of business, or motor vehicle, is threatened by an
intruder, a person would be relieved of the duty to retreat under the proposed
law (by the provision that would prohibit a finder of fact from considering
the possibility of retreat) wherever he or she may be threatened, provided the
person threatened is lawfully present there and not engaged in unlawful
1
The original Sections D of La.R.S. 14:19 and 20 proposed in the bill were identical:
A person who uses force or violence as provided for by this Section is
immune from criminal prosecution for the use of force or violence.
The amendments replaced those Sections D with the following:
AMENDMENT NO. 1
On page 2, delete lines 10 through 14 in their entirety and insert in lieu
thereof the following:
―[La.R.S. 14:19] D. No finder of fact shall be permitted to consider the
possibility of retreat as a factor in determining whether or not the person who
used force or violence in defense of his person or property had a reasonable belief
that force or violence was reasonable and apparently necessary to prevent a
forcible offense or to prevent the unlawful entry.‖
AMENDMENT NO. 2
On page 4, delete lines 3 through 8 in their entirety and insert in lieu
thereof the following:
―[La.R.S. 14:20] D. No finder of fact shall be permitted to consider the
possibility of retreat as a factor in determining whether or not the person who
used deadly force had a reasonable belief that deadly force was reasonable and
apparently necessary to prevent a violent or forcible felony involving life or great
bodily harm or to prevent the unlawful entry.‖
9
activity. In response to questioning whether this latter aspect of the law
would be too broad an extension of the traditional ―castle doctrine‖ beyond
the confines of the home that would result in a ―Wild West‖ scenario, both
the spokesperson and the bill‘s sponsor emphasized that the scope of the
proposed law is substantially restricted by the requirement that a person be
engaged in lawful activity and be in a place where he or she has a right to be.
The spokesperson and the bill‘s sponsor each reiterated that, under the
proposed law, the use of force must still be reasonable and apparently
necessary.2 The spokesperson emphasized that a woman who is engaged in
lawful activity and present where she has the right to be, whether inside her
home or on the street, should not have to engage in a different mental
calculation, depending on where she is assaulted, in deciding to defend
herself.
This legislative history lends support to this Court‘s previous
determination in State v. Wilkins, 13-2539, pp. 1-2 (La. 1/15/14), 131 So. 3d
839-40, that:
[T]he effect of the 2006 La. Acts 141, amending La.R.S. 14:20 and
adding subsections C and D to the statute, was two-fold: a person may
choose to defend himself or herself with deadly force under the
circumstances defined in R.S. 14:20(A), without considering whether
retreat or escape is possible, i.e., a person ―may stand his or her
ground and meet force with force‖ (C); and he or she may do so
without fear that, if it came to it, a jury may nevertheless second guess
the decision not to flee from the encounter in assessing whether the
use of deadly force was justified (D). The overall effect of the 2006
amendments was thus to supplant a jurisprudential rule so deeply
entrenched in Louisiana law that some decisions continue to adhere to
it to this day. See, e.g., State v. Vedol, 12-0376, p. 7 (La. App. 5 Cir.
3/13/13), 113 So. 3d 1119, 1124 (―[T]his Court has continued to
2
Thus, a distinction was drawn by the bill‘s sponsor between a situation in which an
attacker ceases the attack, surrenders, and places his gun on the floor (implying a violent
response may no longer be reasonable or necessary) from that in which a person is threatened
with a gun and has to gamble (under pre-amendment law) on whether escape will be judged in
hindsight to have been a viable option.
10
recognize that while there is no unqualified duty to retreat from an
altercation, the possibility of escape is a recognized factor in
determining whether or not a defendant had a reasonable belief that
deadly force was necessary to avoid the danger.‖) (citation omitted).
This Court also found in Wilkins, 13-2539, p. 2, 131 So. 3d at 840, that
Section D‘s provision that ―[n]o finder of fact shall be permitted to consider
the possibility of retreat as a factor in determining whether or not the person
who used deadly force had a reasonable belief that deadly force was
reasonable and apparently necessary,‖ cannot be detached from Section C,
which permits only those persons ―who [are] not engaged in unlawful
activity and who [are] in a place where [they have] a right to be‖ to stand
their ground (which finding is also consistent with the legislative history
described above). Thus, this Court found that ―[t]o the extent that subsection
D effectuates the right conferred by Subsection C on an individual to ‗stand
his or her ground‘ without weighing the possibility of escape or retreat
before responding with deadly force, an unqualified right that did not exist
previously in Louisiana, the two subsections work in tandem, not separately,
to make a substantive change in the law because they directly impact not
only how trials are conducted, and how juries may be instructed, but also
how individuals may conduct themselves when confronted with situations
that they perceive, reasonably or not, to present an imminent threat to their
own lives.‖ Wilkins, 13-2539, p. 2-3, 131 So. 3d at 840. Thus, the dissent in
the present case suggests the majority erred in considering in isolation rather
than in tandem the prohibition against a jury considering the possibility of
retreat, established in Section D, from the restrictions on the right to stand
one‘s ground, provided in Section C. See Wells, 11-0744, p. 3, 156 So. 3d at
172 (―In essence, the majority finds that subsection D ‗stands alone,‘ such
11
that it is not qualified by subsection C . . . or by any of the preceding
subsections of the statute.‖). In light of the legislative history and Wilkins,
the dissent is correct in that assessment.
Given that several versions of the shooting were presented through the
testimonies of eyewitnesses, it is difficult to conclude that the jury
instruction described above is in error. Various witnesses claimed: defendant
was the aggressor; he was not the aggressor; the victim brandished a
weapon; the victim did not brandish a weapon; defendant briefly left after
attempting unsuccessfully to purchase marijuana; and defendant did not
leave after attempting unsuccessfully to purchase marijuana. The trial court,
obligated by La.C.Cr.P. art. 802(1) to charge the jury on the law applicable
to the case, including ―every phase of the case supported by the evidence
whether or not accepted by [her] as true‖, State v. Marse, 365 So. 2d 1319,
1323 (1978), provided a lengthy instruction that was likely intended to cover
each of these different versions of the incident. The instruction was not
ideal, however, and, as noted by the court of appeal contained apparently
contradictory elements.3 It might have been better tailored to guide the jury
3
The Supreme Court in Killian v. United States, 368 U.S. 231, 82 S. Ct. 302, 7 L. Ed. 2d
256 (1961), in a case involving a defendant charged with making a false statement regarding his
Communist Party affiliation, rejected a defendant‘s claim that the jury instruction defining
affiliation was fatally flawed because of its contradictory and confusing nature:
Petitioner argues that because the first paragraph of the instruction stated
that affiliation ‗means a relationship short of and less than membership in the
Communist Party, but more than that of mere sympathy for the aims and
objectives of the Communist Party,‘ and the third paragraph of the instruction
stated that ‗affiliation . . . means a relationship which is equivalent or equal to that
of membership in all but name,‘ it was contradictory and confusing. We agree that
the third paragraph appears inconsistent with the first. However, it is evident that
the erroneous third paragraph could not have prejudiced petitioner for it, though
inconsistent with the correct first paragraph, exacted a higher standard of proof of
affiliation than the law required.
Petitioner, quite understandably, would require instructions as specific as
mathematical formulas. But such specificity often is impossible. The phrases
‗member of‘ and ‗affiliated with,‘ especially when applied to the relationship
12
in determining what portions of the instruction applied to the different
scenarios presented at trial. Nonetheless, because defendant admitted he shot
the victim while engaged in the unlawful activity of an attempted narcotics
purchase, the court of appeal erred in finding the instruction was erroneous
on the basis that La.R.S. 14:20(D) prohibits jurors from considering the
possibility of retreat in evaluating the reasonableness of defendant‘s violent
response.
As noted above, harmless-error analysis applies to instructional errors
so long as the error at issue does not categorically vitiate all the jury‘s
findings. For example, in Neder v. United States, 527 U.S. 1, 8-10, 119 S. Ct.
1837, 1833-34, 144 L. Ed. 2d 35 (1999), the Supreme Court determined that
―an instruction that omits an element of the offense does not necessarily
render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence‖, and therefore such error is subject to
harmless-error analysis. Earlier, that court had determined that when a jury
was incorrectly instructed to presume malice in violation of the rule of
Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)
the error is subject to harmless-error analysis. Rose v. Clark, 478 U.S. 570,
581-83, 106 S. Ct. 3101, 3107–09, 92 L. Ed. 2d 460 (1986). Citing Rose v.
Clark, the Supreme Court in Pope v. Illinois, 481 U.S. 497, 503-04, 107
between persons and organizations that conceal their connection, cannot be
defined in absolute terms. The most that is possible, and hence all that can be
expected, is that the trial court shall give the jury a fair statement of the issues—
i.e., whether petitioner was a member of or affiliated with the Communist Party
on the date of his affidavit—give a reasonable definition of the terms and outline
the various criteria, shown in the evidence, which the jury may consider in
determining the ultimate issues. We believe that the instructions in this case,
which are consistent with all the judicial precedents under § 9(h), adequately met
those tests.
Killian, 368 U.S. at 257-58, 82 S.Ct. at 317.
13
S. Ct. 1918, 1922-23, 95 L. Ed. 2d 439 (1987), found that the error in
instructing a jury to use a state community standard in considering whether
magazines were utterly without redeeming social value (and therefore
obscene) was subject to harmless-error analysis. If harmless-error analysis
applies in those instances, then a fortiori it applies here.
Under the harmless-error test of Chapman v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the question is whether it appears
―beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.‖ Chapman, 386 U.S. at 24, 87 S.Ct. at 828; see also
State v. Gibson, 391 So. 2d 421, 426-27 (La. 1980). In Sullivan v. Louisiana,
508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the Supreme Court
clarified that the inquiry ―is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the
error.‖ Id., 508 U.S. at 279, 113 S. Ct. at 2081; see also State v. Code, 627
So. 2d 1373, 1384 (La. 1993).
In the present case, although the jury instruction had room for
improvement and there was some potential for confusion, the confusion was
to defendant‘s benefit. Notably, he, as a person who admitted he was
engaged in an attempted narcotics transaction, received the benefit of an
instruction informing the jury they could not consider the possibility of
retreat as a factor in determining whether he had a reasonable belief that
deadly force was reasonable and apparently necessary, in accordance with
La.R.S. 14:20(D), although he was not entitled to that instruction by
operation of La.R.S. 14:20(C) because he was engaged in unlawful activity.
Cf. United States v. Pinson, 542 F.3d 822, 832-33 (10th Cir. 2008) (―Even if
14
the instruction were erroneous, however, Mr. Pinson‘s claim still must fail.
Even if the instructions did delve into his subjective intent to carry out the
threat, this was an added burden placed on the government. It required the
government to prove an additional element, namely, Mr. Pinson's actual
intention when he made the threats. An incorrect instruction that is
beneficial to the defendant is generally not considered prejudicial.‖) (citing
Killian v. United States, 368 U.S. 231, 82 S. Ct. 302, 7 L. Ed. 2d 256 (1961));
United States v. White, 972 F.2d 590, 596 (5th Cir. 1992) (―The fact that the
district court gave the lesser included instruction on Count 1 does not change
our opinion. The defendants were not entitled to that instruction. The
defendants therefore got a more generous instruction than they were entitled
to on the first Count of the indictment. That did not require the trial court to
grant them an overly generous instruction on Count 2. Admittedly, the
inconsistency in instructing on the lesser included verdict on Count One and
declining that instruction on Count 2 created some confusion. But if that
confusion had any effect on the verdict it was beneficial to the defendants.‖);
Coleman v. United States, 367 F.2d 388, 388 (9th Cir. 1966) (―Similarly, his
cautionary instruction concerning testimony of an accomplice was proper,
for the jury might have considered the government's witness Hunter, who
wrote the holdup note, a participant in the crime. But even if abstract, the
instruction was beneficial rather than harmful to defendants.‖). Thus, we
agree with the dissent‘s determination that the verdict of guilty of
manslaughter was surely not attributable to the disputed portion of the jury
instruction and the jury charge as a whole was not prejudicial to defendant.
See Wells, 11-0744, pp. 10-11, 156 So. 3d at 175-76 (Landrieu, J.,
dissenting).
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Accordingly, the ruling of the court of appeal is reversed and the
matter is remanded for consideration of defendant‘s remaining assignments
of error.
REVERSED AND REMANDED
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