Ramond Eames was charged by bill of information for having:
The verdict of the jury was "guilty of attempted participation in a riot which results in death." The jury had been instructed that one of seven responsive verdicts was "guilty of attempted participation in a riot."
In a motion for arrest of judgment, the defendant argued that the verdict was not responsive, or was otherwise so defective that it would not form the basis of a valid judgment. C.Cr.P. 859.
Act 176 of 1969 is a lengthy act which defines several offenses. Some of the act appears at R.S. 14:329.1 through 329.7. The first three sections of the act are as follows:
Section 4 concerns the command by police to disperse. Section 5 concerns the "wrongful use of property." Section 6 concerns interference with use of educational property and process. Section 7 concerns the proclamation of a state of emergency. Section 8 is the penalty clause:
The jury was instructed that it could render one of seven verdicts, as follows:
The verdict of the jury was not divided as to counts, nor was the jury instructed to find a verdict on both the counts in the bill of information. Count one of the bill of information was simply a charge that defendant incited a riot which resulted in deaths of two people. The second count, as noted above, accuses the defendant of having "participated in the aforementioned riot," but is qualified by the detailed "more specifically" clause. "More specifically," the defendant is charged with having endeavored to procure others to create and participate in a disturbance by acting together, and urging and procuring them to take over the city by blocking the street, thereby creating a confrontation and attacking the authorities, causing a public disturbance.
That portion of Act 176 of 1969 dealing with riots was carried over into the revised statutes as follows: Section 2 of Act 176 became 14:329.1; Section 3, 14:329.2; Section 8, 14:329.7. These sections probably condemn two separate offenses, as relevant here. R.S. 14:329.2 defines "inciting to riot." The penalty provision punishes not only one "guilty of inciting to riot," but one who "participates in a riot." It is highly likely that the legislature intended to punish two separate offenses (as here relevant); one inciting to riot; the other, participating in a riot. If only one offense was intended, it was the one defined: inciting to riot.
Charged here is an offense on January 10, 1972; the bill of information was filed December 7, 1973. Therefore, Act 528 of 1975, repealing articles 491 and 492 of the Code of Criminal Procedure, relating to duplicity, and amending C.Cr.P. 493 to permit the joinder of offenses in separate counts is not applicable. At all times relevant to this case then, a bill could charge only one offense, but the same offense could be charged in different ways in several counts. C.Cr.P. 493, before the amendment by Act 528 of 1975.
In spite of the fact that the second count of the indictment announces that defendant is accused of participating in a riot, the detailed specifications charge him only with willfully endeavoring to procure others to do the acts described. Inciting to riot is defined, as noted above, as the "endeavor by any person to incite or procure any other person to create or participate in a riot." The question, then, is whether there can be an attempt to incite a riot.
An attempt is an inchoate offense. The crime of attempt is designed to punish certain activity which was not completed— incipient criminal activity. It depends for its existence on a "specific intent to commit a crime." R.S. 14:27. If the definition of another crime includes the attempt to do something, the attempt statute, R.S. 14:27, cannot be employed, for then a defendant would be charged with an attempt to attempt to do an illegal act. The reporter's comment to R.S. 14:27 makes this clear:
See also 28 La.L.Rev. 543, 544 (1968), footnote 115:
9 La.L.Rev. 413 was a case note on State ex rel. Clarence Duhon v. General Manager, Louisiana State Penitentiary, No. 39,091, July 20, 1948, in which this court approved without discussion the release on a writ of habeas corpus of one who had been convicted of attempted conspiracy without having filed a motion in arrest of judgment or having taken an appeal.
Since the bill could charge only one offense, and particularized the offense of inciting to riot, and since inciting to riot, as defined in the statute, is an inchoate offense, the verdict returned was not responsive, as there can be no attempt to incite, and inciting to riot was the only crime charged.
The conviction and sentence are reversed, and the defendant is discharged.
DENNIS, J., concurs in the decree and assigns reasons.
SUMMERS and MARCUS, JJ., dissent.
SANDERS, C. J., dissents and assigns reasons.
DENNIS, Justice, with whom TATE and CALOGERO, JJ., join, assigns additional concurring reasons:
In addition to the reasons given in the majority opinion, the defendant's conviction and sentence must be reversed because he was denied the rights to a fair and impartial jury guaranteed by the federal and state constitutions.
This criminal appeal raises the question of whether a black defendant, charged with inciting to riot during a Black Muslim street demonstration, was denied his rights to individual dignity and equal protection of the laws guaranteed by the Louisiana Constitution when the prosecuting attorney admittedly used the State's peremptory challenges to remove blacks from the petit jury because he believed the fact of their race indicated they were likely to be partial due to their susceptibility of intimidation by radical elements of the black community.
This prosecution is one of the Baton Rouge "Black Muslim cases," as denominated in defendant's brief and in popular parlance. See, State v. Bell, 315 So.2d 307 (La.1975), 346 So.2d 1090 (La.1977); State v. Williams, 354 So.2d 562 (La.1978). The cases arose from a riot which erupted January 10, 1972 on a public street in Baton Rouge when police officers attempted to remove parked cars and disperse Black Muslim demonstrators blocking the thoroughfare. Five men were killed—two white deputy sheriffs and three of the black demonstrators; one white television reporter was severely beaten sometime before the riot and remains unconscious to this date.
Defendant, Ramond Eames, was one of the black persons at the scene of the violent public disorder. He was arrested and charged by bill of information with inciting or participating in a riot in which the death of a person had occurred. La.R.S. 14:329.1-329.8. After a trial by a twelve-person jury on February 19-24, 1974, the defendant was convicted of attempting to participate in a riot in which the death of a person had occurred and sentenced to serve nine years in prison at hard labor. Although the trial occurred over two years after the riot, racial tension was still present in the community, as evinced by the responses of many veniremen during voir dire and the prosecutor's attempts to remove blacks from the jury.
After the trial the defendant filed a motion in arrest of judgment and a motion for a new trial based on his timely objections to the State's exclusion of black persons from the petit jury by use of its peremptory challenges, and on the ground that, considering all circumstances, the ends of justice would be served by a new trial.
During the voir dire the State used a disproportionate number of its peremptory
In support of defendant's contention that he had been denied due process and equal protection of the laws under the United States Constitution and the Louisiana Constitutions of 1921 and 1974, the defendant attempted to show that systematic exclusion of black jurors had been practiced by the prosecuting attorney for several years. The only evidence offered by the defendant was the testimony of a court reporter who had kept partial records of the race of jurors peremptorily challenged in one division of the district court for three years. During the hearing and argument on the motions, however, the prosecuting attorney candidly admitted that he had not wanted blacks on the jury in the instant case and indicated that he had excluded them because he believed that any black juror would have been susceptible to intimidation by black radicals in the community.
At the conclusion of the hearing on the motion, the trial judge overruled the motion, finding that the defendant had failed to prove systematic exclusion of blacks from petit juries by the State over a period of time, and commenting that the trial court was barred from otherwise inquiring into the prosecutor's peremptory challenges by the decision of the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The defendant assigned this ruling as error and contends that the prosecuting attorney committed acts of racial discrimination prohibited by both state and federal constitutions when he used all of the State's peremptory challenges to remove blacks from the jury.
Under this showing, in my opinion the defendant is entitled to a new trial under La.C.Cr.P. art. 851(5):
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My opinion is based upon the peculiar combination of factual and legal circumstances of this case, which show: (a) The prosecuting attorney admitted that jurors were peremptorily challenged because of race; (b) If the case had been tried after the effective date of the 1974 Louisiana Constitution, the prosecutor's admission would have established a clear denial of equal protection of laws under the state constitution; (c) The prosecutor's admission does establish a probable denial of equal protection of laws under the Fourteenth Amendment; (d) Although the case was tried on February 19-24, 1974, the hearing on the motion for a new trial was not held until January 19 and March 22, 1977, well after the effective date of the 1974 Louisiana Constitution; (e) In cases such as the present case, in which racial tensions were high, the removal of all but one member of defendant's race from the jury is inconsistent with the guarantee of a fair and impartial trial which both the prosecution and the court are sworn to uphold.
Although La.C.Cr.P. art. 858 provides that neither the appellate nor supervisory jurisdiction of this Court may be invoked to review the granting or the refusal to grant a new trial, except for error of law, an abuse of the trial judge's discretion in determining whether the ends of justice would be served by granting a new trial presents a question of law. State v. Randolph, 275 So.2d 174 (La.1973). Of course,
The trial judge's reliance upon Swain v. Alabama as precedent for his refusal to inquire into the issue raised by the State's acknowledged use of peremptory challenges to remove black citizens from the jury calls for a thorough reexamination of that case. In the Swain case, the defendant, a nineteen-year-old Negro charged with the rape of a seventeen-year-old white girl, was convicted by an all-white jury in Talladega County, Alabama, and sentenced to death. Although the county's population was twenty-six percent black, and ten to fifteen percent of the jury venires was black, no Negro had actually served on a petit jury for fifteen years. The absence of blacks from trial juries was attributable to the operation of the Alabama struck jury system, a variant of the peremptory challenge system, in which veniremen remaining after excuses, exemptions, removals for cause are "struck"—the defense striking two and the prosecutor striking one alternatively until only twelve jurors are left. In the Swain case there were eight blacks on the venire; two were exempt, and the prosecution struck the rest. Swain contended that he had been denied equal protection of the laws by racially discriminatory selection of the jury venire and the petit jury. Swain argued that discrimination was accomplished by use of the State's peremptory strikes in the particular case to remove all black veniremen; and by use of the peremptory strike system through the years in a scheme to exclude all blacks.
The Supreme Court rejected Swain's contentions and affirmed the judgment of conviction. As I read the opinion of the Court, although it is subject to differing interpretations, the decision was based on several interrelated reasons. The underlying rationale appears to be that the equal protection clause of the Fourteenth Amendment does not prohibit a state prosecutor from peremptorily challenging a venireman because of his race if the fact of his race in that particular case would lead in good faith to the conclusion that the juror is likely to be partial. In order to protect the efficacy of the peremptory challenge, and to prevent the disruption of trials by defendants' continual charges of prosecutorial abuse, the Court created a presumption that in any particular case the prosecutor has invoked the state's peremptories because of good faith trial-related considerations. The Court stated that the presumption is not destroyed by the mere fact that in the case at hand all blacks were removed from the jury. Perhaps the defendant by proof of a state's systematic striking over a period of time of blacks in the selection of petit juries, or by eliciting an admission from the prosecutor that discrimination accounted for his rejection of blacks, may raise a prima facie case under the Fourteenth Amendment.
The Court refused to apply the rule developed in a long line of cases involving racial exclusion from jury venires, e. g., Norris v. Alabama;
The Swain decision has also been criticized for its questionable historical analysis of the nature and purpose of the peremptory challenge, from which the Court inferred that the prosecutor's use of the challenge should be given the same protection as it receives in the defendant's hands.
Since the Swain decision, defendants have objected frequently to prosecutors' removal of blacks from trial juries by peremptory challenges, but the Supreme Court's "systematic exclusion" test, according
Although this Court in the past has followed Swain, recent opinions have expressed concern over the continuing claims of racial exclusion in the selection of East Baton Rouge Parish juries.
Since the state's peremptory challenge is not a federally protected right,
The answer to the first question is clear. Article I, § 3 of the 1974 Louisiana Constitution absolutely prohibits state action which discriminates against a person because of race or religion.
This Court is required by its duty to support the constitution of this State to adopt evidentiary rules which will promote the enforcement of the individual liberties guaranteed by the constitution.
A presumption should exist during the selection of a jury that individual peremptory challenges by the prosecution are being properly used. Once it becomes evident, however, that the prosecution has used a disproportionate number of challenges against members of one race, or has eliminated a disproportionate number of members of a certain race, considering the proportionate number of that race included within the venire after excuses, exemptions and removals for cause, in my opinion, a prima facie case of discrimination because of race has been established, and the burden of proof should shift to the prosecutor to show that his challenges were not exercised on the basis of race. The State may sustain its burden by offering evidence that its reasons for individual challenges were not because of race. Although the reasons need not be sufficient to ground a challenge for cause, they should appear to have been applied consistently to similarly situated jurors of other groups, and they should be reasonably relevant to the particular trial or to non-racial characteristics. If the trial court determines that the jury has been improperly selected, it should discharge the jury and select a new one according to constitutional procedures.
Applying these rules to the record in this case, it is clear that the defendant made a prima facie showing that the prosecutor had exercised peremptory challenges against black jurors because of their race. The trial court, therefore, erred in deciding that the prosecutor was not required to respond to the defendant's allegation, and in denying defendant's motions without a rebuttal showing by the prosecutor that the challenges were each predicated on nonracial grounds.
The California Supreme Court, in its recent decision in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), reached a similar conclusion for different reasons. Rejecting Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) as precedent in interpreting the California constitution's guarantee of trial by an impartial jury drawn from a representative cross-section of the community, the Court held that peremptory challenges to remove prospective jurors on the sole ground of "group bias" violates the constitutional safeguard. Finding that the prosecutor's peremptory challenges of all prospective black jurors established a prima facie showing that the challenges were exercised against black jurors on the basis of "group bias" alone, and that the prosecutor had offered no rebuttal, the California court reversed the defendants' convictions.
Crucial to the California Supreme Court's decision in Wheeler is its conclusion that under the California constitution a party is entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits. Accordingly, the Court reasoned that if the essential quality of representativeness were to be preserved, prospective jurors could be subjected to challenges for cause and peremptory challenges on grounds of "specific bias," but that it could not "countenance the decimation of the surviving jurors by peremptory challenges on the ground of group bias alone." 148 Cal.Rptr. 903, 583 P.2d 762. The Court explained the difference between "group bias" and "specific bias" as follows:
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Moreover, even if the prohibition of discrimination against persons because of race contained in the 1974 Louisiana Constitution were to be disregarded, the same result should nevertheless be reached in the instant case under the Swain interpretation of the Fourteenth Amendment. As I read Swain, an admission by the prosecutor that he employed peremptory challenges to exclude blacks regardless of trial considerations in the particular case will suffice to raise a prima facie case under the Fourteenth Amendment. This is a logical construction of Swain because the Swain barrier allowing only indirect proof of racial discrimination by evidence of systematic exclusion is justifiable only as a means of protecting the state's use of peremptories and of preventing trial disruption. In the rare case in which the prosecutor admits to racial exclusion of jurors without legitimate trial-related grounds there is no reason for the defendant to seek a hearing to inquire further into the prosecutor's motives. Conclusive proof of denial of equal protection is established by the prosecutor's unrecanted admission.
In the instant case the prosecuting attorney did not deny that blacks were excluded from the petit jury. He attempted to justify this action without evidence by arguing that it was necessary to exclude blacks in order to obtain a fair and impartial jury free from outside pressure. However, our review of the transcript of the voir dire reflects that he made no attempt whatsoever to determine whether potential black jurors might be susceptible to intimidation. Although careful voir dire examination and individualized peremptory challenges of persons who seemed easily susceptible to intimidation may have been justified, in the absence of convincing proof I am unwilling to believe that the blanket exclusion of all black persons was necessary as a reasonable precaution against the danger with which the prosecutor was concerned. It does not appear likely that all prospective black jurors would have been either subjected or susceptible to intimidation. Furthermore, an all-white jury could also threaten the goal of a fair and impartial trial. If radical elements were active in the community, it is possible that a substantial number of prospective white jurors would have been easy targets for intimidation as well. Also, in an atmosphere of racial strife, such as that which surrounded this trial, there is a significant possibility that any white juror who replaced a challenged black venireman would harbor some degree of hostility toward the black defendant. For these reasons I conclude that the prosecuting attorney's use of peremptory challenges in an attempt to exclude all black persons from the jury cannot be justified even under the Swain rule as a good faith effort to remove persons from the jury who are likely to be partial.
Although I join in the majority opinion, I think this Court also should address itself to the serious violations of both the federal and the state constitutions manifested in the exclusion of black citizens from the jury by the State's peremptory challenges—not only because Ramond Eames, a black man probably was denied an impartial jury in his trial for a crime involving the killing of two white police officers in an atmosphere of racial strife, but also because other prosecuting attorneys perhaps still labor under
SANDERS, Chief Justice (dissenting).
The majority correctly recognizes that the Legislature proscribed two separate and distinct crimes in LSA-R.S. 14:329.1 and 14:329.2: participating in a riot and inciting to riot. The majority, however, holds that attempted inciting to riot is an unresponsive verdict. This conclusion is inconsequential as the jury returned a verdict of attempted participation in a riot.
Further, in my opinion, attempted participation in a riot is a responsive verdict. Louisiana Code of Criminal Procedure Article 814 does not contain the responsive verdicts for a charge of participating in a riot. Its Official Revision Comment (b) states:
Article 815 states that for offenses not provided for in Article 814, guilty, guilty of a lesser and included grade of the offense, and not guilty are responsive verdicts.
An attempt is a separate but lesser grade of the intended crime. LSA-R.S. 14:27C provides:
Clearly, therefore, attempted participation in a riot is a responsive verdict to participation in a riot.
For the reasons assigned, I respectfully dissent.
See also, Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 6-10 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 17-18 (1975).