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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 17th day of March, 2009, are as follows:

BY JOHNSON, J.:

2007-K -1804

STATE OF LOUISIANA v. JAKE DESOTO (Parish of Avoyelles) (Negligent Homicide) Retired Judge recused. Moon Landrieu sitting ad hoc for Knoll, J.,

Accordingly, this Court reverses the decision of the Third Circuit on rehearing, reinstates the jury's conviction for negligent homicide and the concomitant sentence previously imposed by the trial court in accordance with this opinion, and remands to the trial court for consideration of the sentencing error of failure to impose the probation supervision fee mandated by La.C.Cr.P. art.895.1(C). REVERSED AND REMANDED. LANDRIEU, J., dissents with reasons.

03/17/09 SUPREME COURT OF LOUISIANA No. 07-K-1804 STATE OF LOUISIANA v. JAKE DESOTO On Writ of Certiorari to the Court of Appeal, Third Circuit Parish of Avoyelles
JOHNSON, Justice1 Jake Desoto (Desoto) shot and killed his friend, Kain Roy, (Roy) in a hunting accident. He was charged by bill of indictment with negligent homicide in violation of LSA-R.S 14:32. Following trial on the merits, an Avoyelles Parish jury returned a unanimous verdict of guilty as charged. The trial court sentenced Desoto to serve five years without hard labor, with two years of the sentence suspended, and also ordered the defendant placed on supervised probation upon release from incarceration. A motion to reconsider sentence was denied. A Third Circuit majority affirmed the conviction on appeal. However, on rehearing, a split three-judge panel reversed the conviction, vacated the sentence, and entered a judgment of acquittal.2

1

Retired Judge Moon Landrieu sitting ad hoc for Knoll, J., recused.
State v. Desoto, 06-1115 (La. App.3 Cir. 3/14/07), 968 So.2d 146, on reg'g (8/15/07).

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We granted certiorari in this case to determine whether the appellate court, on rehearing, erred in determining that the evidence did not support a finding of criminal negligence, and whether the court substituted its own findings of fact in place of those of the trier of fact, the jury.3 For reasons that follow, we reverse the ruling of the court of appeal, reinstate the jury verdict and sentence imposed by the trial court, and remand to the trial court for consideration of the sentencing error of failure to impose the probation supervision fee mandated by La.C.Cr.P. art. 895.1(C). FACTS On November 20, 2004, opening day of deer rifle season, Desoto, and his friend, Roy, set out from the hunting camp of Jerold Edward (Eddie) Knoll on an all terrain vehicle (four-wheeler) between 2:30 and 3:00 p.m. to hunt deer in the northeast corner of the Knoll property and the adjacent Beauregard property. Both of the men had working cellular phones with them. According to the report of Tom Konvicka, (a consulting meteorologist), introduced at trial, the day was characterized by rain, cloudy skies and temperatures hovered in the upper 50's to middle 60's. Rainfall amounts in Avoyelles were generally between 0.50 and 1.50 inches. Fog was also observed. Sunrise occurred at 6:42 a.m. and sunset occurred at 5:09 p.m.

While en route to the hunting grounds, the four-wheeler ran out of gas and Desoto

3

State v. Desoto, 07-1804 (La. 9/19/08), 992 So2d 965.

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and Roy proceeded on foot toward a slough.4 The two men then separated to hunt individually from the hunting stands erected on the property. Roy went to hunt at a ladder stand called the "Eiffel Tower," and Desoto headed over to a climbing tree stand across the Beauregard field, east of the Eiffel Tower. According to Desoto, he arrived at the climbing tree stand between 3:00 and 3:15 p.m., but stayed there for only about 20 minutes before leaving the stand, because it was windy and he had no jacket. He walked the tree line to the corner of the field to check the corn he had previously put out to attract deer. Desoto then walked toward the Eiffel Tower and was approximately 32 yards to the southwest of that stand. Desoto claimed he phoned Roy, at 5:19 p.m., although the cellular phone records indicated that it was actually Roy who phoned Desoto. According to Desoto, Roy told him that he thought he saw a deer walking on "this side of the slough" and heading toward the field in the direction of the climbing tree stand and told Desoto to "stay in the field." One minute later, at 5:20 p.m., cellular phone records show that Desoto received a call from his girlfriend, Candace Marcotte, which lasted for approximately 9

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