Louisiana Supreme Court Announces Conviction of Lesser Included Offense Subsequently Vacated as Unconstitutional Constitutes Implied Acquittal of Higher Charge; Double Jeopardy Bars Retrial on Higher Charge
by Jacob Barrett
In a case of first impression, the Supreme Court of Louisiana held double jeopardy bars the reinstatement and retrial of a defendant on a higher charge when he has been lawfully convicted of a lesser included offense, even though the conviction was later vacated, and further held that a defendant’s conviction of a lesser included offense operates as an implied acquittal of the higher charge.
Ronald Gasser was indicted for second-degree murder in the shooting death of Joseph McKnight in a road rage incident. After a jury trial, Gasser was convicted by a ten to two verdict of the lessor included offense of manslaughter and acquitted of the second-degree murder. He was sentenced to 30 years’ “imprisonment at hard labor.”
The conviction was initially upheld on appeal. Gasser filed for review to the Louisiana Supreme Court, and while the review was pending, the U.S. Supreme Court decided Ramos v. Louisiana, 140 S. Ct. 1390 (2020), holding non-unanimous jury verdicts are unconstitutional. The Louisiana Supreme Court granted Gasser’s application for review and remanded the case back to the appeals court for further proceedings based on Ramos.
Thereafter, the appeals court found Gasser was entitled to a new trial on his non-unanimous verdict and remanded the case back to the trial court.
At trial, the State filed notice of its intent to retry Gasser on the second-degree murder count. He responded by filing a motion to squash, arguing “double jeopardy and the right to appeal barred the State from reinstituting a prosecution on the higher, second-degree murder charge.”
The trial court agreed with Gasser reasoning, “when the jury came with the ten to two verdict to convict [Gasser] of manslaughter, it was a legal verdict and also a legal acquittal of the second degree charge.” The State appealed the trial court’s decision. The appeals court affirmed, and the State filed for review with the Louisiana Supreme Court.
The Court began its analysis by observing that it has never addressed the issue presented in this case, viz., “the effect of a lawful verdict convicting a defendant of a lesser included offense that is later set aside as unconstitutional.”
It stated that the Double Jeopardy Clauses of both the federal and state Constitutions protect against three categories of abuse: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Johnson, 667 So. 2d 510 (La. 1996). This case implicates the second category.
The Court examined the state statutory framework of double jeopardy and identified two legal principles that govern the present case. First, double jeopardy “exists in a second trial only when the charge in that trial is … [i]dentical with or different in grade of the same offense for which defendant was in jeopardy in the first trial….” La. C.Cr.P. art. 596. Second, a guilty verdict “is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial.” La. C.Cr.P. art. 598. The Court noted that Louisiana’s position that a conviction of a lesser included offense constitutes acquittal of the offense charged and thus the defendant can only ever be retried for the offense the defendant was convicted is the minority position among the states. State v. Harville, 130 So. 348 (1930); La. C.Cr.P. art. 598, Off. Rev. Cmt. (a).
Applying the foregoing legal principles to the current case, the Court concluded that Gasser’s conviction on the lesser included offense constituted an acquittal of the offense of second-degree murder.
The Court then addressed the State’s argument that the jury’s non-unanimous verdict was a nullity with no legal effect and thus double jeopardy doesn’t apply. After discussing several state and federal lines of cases on double jeopardy, the Court gleaned the general rule applicable to present issue: “the Fifth Amendment prohibition against double jeopardy attaches to a verdict of acquittal, even one that is clearly erroneous.” See Ball v. United States, 163 U.S. 662 (1896); Green v. United States, 355 U.S. 184 (1957); Fong Foo v. United States, 369 U.S. 141 (1962); State v. Hurst, 367 So. 2d 1180 (La. 1979). Furthermore, the Court explained that “an acquittal may be express or ‘implied by conviction of a lesser included offense when a jury is given a full opportunity to convict a defendant on the greater charge.’” State v. Sloan, 747 S. 2d 101 (La. App. 1999); Ohio v. Johnson, 467 U.S. 493 (1984).
In applying the foregoing to the present case, the Court stated: “only one conclusion can be drawn. Defendant’s conviction of the lesser included offense of manslaughter was an implied acquittal of the second degree murder charge and the State may not retry defendant for the second degree murder.”
Thus, the Court concluded: “although defendant’s verdict was later vacated as unconstitutional, because the verdict was valid at the time it was rendered, double jeopardy attached and defendant cannot be retried for the originally charged offense of second degree murder. The trial court properly granted defendant’s motion to quash.”
Accordingly, the Court affirmed. See: State v. Gasser, 346 So. 3d 249 (La. 2022).
Editor’s note: The Court discusses at length numerous state and federal cases dealing with double jeopardy principles, so anyone interested in the Double Jeopardy Clause of either the U.S. or Louisiana Constitution is encouraged to read the full opinion.
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