Philip Knight was indicted for two counts of aggravated rape (La.R.S. 14:42) and two counts of aggravated crime against nature (La.R.S. 14:89.1). The two victims were sisters, aged five and seven years. The charges for the crime against the seven year old were dismissed. The appellant was tried for the aggravated rape and the aggravated crime against nature upon the five year old before a 12-person jury on May 19 and 20, 1987. The jury returned a verdict of guilty to aggravated crime against nature and not guilty to aggravated rape. On August 6, 1987, the appellant was sentenced to ten years' imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. We affirm the conviction and sentence and set aside the district attorney's November 19, 1987 dismissal of the indictment.
The defendant, in brief, urges this Court to review the record for error patent. Our review discloses two issues:
(1) When the trial judge instructed the jury to render one of five possible verdicts for the charge of aggravated crime against nature and the jury returned a signed verdict of "guilty," which did not specify guilty to which offense, did the verdict fail to clearly convey the intention of the jury as required by La.C.Cr.P. art. 810, and
(2) Did the district attorney's dismissal of the charge of aggravated crime against nature following the defendant's conviction and sentence for that crime serve to dismiss
Barbara and Robert Hunter had four children, among them the victims Rojean and Rosalin, ages five and seven, respectively. The couple separated, and the children stayed with their mother. When Mrs. Hunter was hospitalized for a stroke and a heart attack on April 1, 1985, the children went to live with their father. At that time, the couple had been separated for three years but had not divorced, and custody was informally decided between them. Mrs. Hunter testified that when her children went to live with their father, Philip Knight and Cheryl Johnson, Mr. Hunter's girlfriend, were staying there. When Mrs. Hunter was discharged from the hospital at the end of April 1985, her children returned to live with her. Shortly thereafter, Mr. Hunter allegedly broke into Mrs. Hunter's house at 5 a.m. and took the keys and the two victims, Rojean and Rosalin. The girls returned to live with their mother in December, and on December 17 and 18, Mrs. Hunter took Rojean to Charity Hospital because Rojean had a sore throat, fever, and vaginal discharge. The diagnosis of the doctors at Charity was strep throat and gonorrhea. The police were contacted, and both Rosalin and Rojean identified Philip Knight in separately conducted photographic lineups as one of the men who had molested them. Rosalin Hunter was unable to testify due to psychological problems, and Knight was tried for one count of aggravated rape (case No. 86-545) and one count of aggravated crime against nature (case No. 86-544) as to Rojean Hunter only. On May 20, 1987, the jury rendered a verdict of "guilty" in case No. 86-544 without specifying whether it found defendant guilty as charged or guilty of a lesser included offense. The jury found him "not guilty" of aggravated rape in case No. 86-545. After Knight was convicted and sentenced, the district attorney nolle prossed the indictment which led to Knight's prosecution, conviction, and sentence for aggravated crime against nature.
La.C.Cr.P. art. 920 provides: "The following matters and no others shall be considered on appeal: (1) An error designated in the assignment of errors; and (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." Our jurisprudence, in interpreting La.C.Cr. P. art. 920, has repeatedly stated that
State v. Flowers, 509 So.2d 588, 593 (La. App. 5th Cir.1987), citing State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Brooks, 496 So.2d 1208 (La.App. 5th Cir. 1986). Additionally, La.C.Cr.P. art. 810 states:
La.C.Cr.P. art. 813 states:
We are further aided by Louisiana jurisprudence which tells us that when a verdict is ambiguous, the intent of the jury can be determined by reference to the pleadings,
The record shows that, after the trial judge received the two separate verdicts of the jury pertaining to the charges of aggravated rape and aggravated crime against nature and after the clerk announced the verdicts, Mr. Farmer, the defense counsel, asked that the jury be polled. Our review of the transcript reveals the following colloquy:
We do take note that the instructions by the trial court did not ever list the single word "guilty" as a possible verdict representing the degree of the offense found on the indictment, namely, aggravated crime against nature. We also note that the trial judge did instruct the jury that the foreperson must write the verdict on the back of the list of responsive verdicts, sign the verdict, and deliver it to the trial judge in open court, reiterating that a separate verdict was required for each indictment.
From our review of the record in its entirety, we find that the verdict (per se), as signed by the foreperson on the back of the list of responsive verdicts given to the jury, was not a responsive one. However, the colloquy by the trial court in its polling of the jury clearly shows that each juror was asked by the court whether he/she found the defendant "guilty as charged," and each juror clarified the verdict for the court. We repeat, but for this clarification, the verdict would not have been a responsive verdict. When viewed together, the verdict and the jury poll clearly convey the intention of the jury. Therefore, under La.C.Cr.P. art. 810 and Louisiana jurisprudence, we find the record shows that the jury's verdict clearly conveyed their intention, namely, to find this defendant guilty of aggravated crime against nature as charged.
La.C.Cr.P. art. 691 provides:
Further, La.C.Cr.P. art. 692 provides, "After conviction, the district attorney is authorized to dismiss an indictment or count thereof only: (1) When a new trial has been granted. (2) When a motion in arrest of judgment has been sustained."
The record shows the bill of information for case No. 86-544 charged Knight with "aggravated crime against nature with one Rosalin Hunter, age 7, by oral copulation," and "aggravated crime against nature with one Rojean Hunter, age 5, by oral copulation." The notation on the lower right-hand side of the bill of information as well as the minute entry indicate that the district attorney dismissed both counts of the indictment on November 19, 1987, not just the count as to Rosalin Hunter that was not prosecuted. This dismissal took place after the defendant was sentenced on August 6, 1987. Nothing in the record indicates that the trial judge gave the district attorney permission to dismiss the indictment, although the minutes reflect that the entire indictment was dismissed. In State v. Hoyal, 516 So.2d 146, 149 (La.App. 5th Cir.1987), this Court addressed the issue of a prosecutor's authority to nolle prosse an indictment after the defendant was convicted and before sentencing by stating:
Noting specifically that the record does not reflect that the trial judge gave the district attorney permission to dismiss the indictment, statutory law and this Court's policy as stated in State v. Hoyal, supra, cause us to find the district attorney had no authority whatsoever to dismiss the indictment once the conviction had taken place.
For the reasons assigned, the conviction and sentence are affirmed, and the dismissal by the district attorney, executed on November 19, 1987, is hereby set aside.
CONVICTION AFFIRMED AND DISMISSAL SET ASIDE.