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STATE OF LOUISIANA                                                             *   NO. 2012-KA-0889
VERSUS                                                                         *
                                                                                   COURT OF APPEAL
JOSEPH TAYLOR                                                                  *
                                                                                   FOURTH CIRCUIT
                                                                               *
                                                                                   STATE OF LOUISIANA
                                                                               *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 488-474, SECTION “A”
Honorable Laurie A. White, Judge
Judge Daniel L. Dysart
(Court composed of Judge Edwin A. Lombard, Judge Paul A. Bonin, Judge Daniel
L. Dysart)
Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR APPELLANT/STATE OF LOUISIANA
Patrick A. Joseph
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue
Suite 700
New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
APRIL 3, 2013




The State of Louisiana appeals the ruling of the district court quashing the
charge of armed robbery with a firearm, La. R.S. 14:64.3, on the basis of “double
jeopardy.”  For the reasons set forth below, we reverse the ruling of the district
court and remand this matter to the district court for further proceedings.
BACKGROUND:
Defendant, Joseph M. Taylor, was charged by bill of information with two
counts of armed robbery with a firearm, in violation of La. R.S. 14:64.3  The bill of
information  alleged  separate  victims                                                 -  MacKenley  Baptiste   (count  one)  and
Lamide Infanse (count two).
Both counts were tried together before a jury, which found Taylor not guilty
of count two  (Lamide Infanse), and returned a hung verdict as to count one
(MacKenly Baptiste).   The State retried the defendant on the Baptiste count, but
during the subsequent trial a 911 tape of both victims was played before the jury
resulting in a mistrial.    This Court and the Louisiana Supreme Court denied
subsequent writs brought by the State.   State   v. Taylor, unpub. 2011-0809 (La.
App. 4 Cir. 6/20/11), writ denied State v. Taylor, 11-1287 (La. 6/21/11), 64 So.3d
204.
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Thereafter, defendant Joseph Taylor filed a motion to quash the bill of
information, which was granted by the district court.   In its ruling, the district court
issued a written opinion granting the motion based upon the principles of double
jeopardy holding in part that:                                                              “Since both alleged offenses stem from the same
incident, conduct, and occurred simultaneously, the State should be barred from
having a third opportunity to prosecute the Defendant for the armed robbery of M.
B. [Mr. Baptiste] after being acquitted of committing Count 1, the armed robbery
of L. I. [Ms. Infanse], on May 16, 2011.”
The State timely appealed the district court‟s ruling.
FACTUAL BACKGROUND:
Ms. Infanse did not testify at trial; however, Mr. Baptiste testified that he
was robbed at gunpoint in the pre-dawn hours of May 24, 2009.   After getting off
work, Mr. Baptiste went to the Sandpiper Lounge, which is located on Louisiana
Avenue in New Orleans.   He dropped his girlfriend off at the front door and went
to park his car.   While he was parking, he observed three men, one of whom he
later identified as Taylor, standing on the corner.   He was able to see the men as
the headlights of his vehicle shown in their direction as he turned to park.
When Mr. Baptiste attempted to enter the lounge, he was refused entry as he
was not wearing a collared shirt.   He returned to his vehicle, and as he returned to
the lounge, Ms. Infanse, a woman he did not know, began walking behind him
travelling in the same direction.
At that time, Mr. Baptiste and Ms. Infanse were approached by Taylor and
another man, both of whom were wearing all black clothing and pointing guns,
instructing Mr. Baptiste to lie on the ground.   They robbed Mr. Baptiste of his
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cellphone and wallet, then fled the area in a grey vehicle.   Mr. Baptiste did not see
Ms. Infanse get robbed.
Mr. Baptiste returned to the lounge, and using another person‟s cellphone,
called 911.   Ms. Infanse called 911 also, and the 911 tape played to the jury at the
second trial contained her voice.
Soon thereafter, Mr. Baptiste and his girlfriend were waiting outside the bar
for the police when Taylor returned, wearing another shirt.   According to Mr.
Baptiste, defendant Taylor glared at him, then walked inside.   When the police
arrived, Mr. Baptiste and Ms. Infanse pointed out Taylor and he was arrested.
Thereafter, Ms. Infanse, who was from out of town, refused to cooperate.   One of
the investigating detectives testified that he called Ms. Infanse about a month after
the incident and she denied identifying the defendant.
DISCUSSION:
In its sole assignment of error the State asserts the district court erred in
granting the motion to quash the bill of information based upon Taylor‟s double
jeopardy assertion because:  1) Taylor failed to show that the jury  “necessarily
determined” any ultimate fact at the first trial, and 2) the evidence necessary to
convict Taylor of armed robbing the male victim, Mr. Baptiste, is not the same
evidence necessary to convict him of the armed robbery of Ms. Infanse.
The United States Constitution Amendment V and Louisiana Constitution
Art. 1, §15 protect citizens from being twice placed in jeopardy of punishment for
the same offense.  La. Code Crim. Proc. art. 591 provides:
No person shall be twice put in jeopardy of life or liberty for the same
offense, except, when on his own motion, a new trial has been granted or
judgment has been arrested, or where there has been a mistrial legally
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ordered under the provisions of Article 775 or ordered with the express
consent of the defendant.
Pursuant to La. Code Crim. Proc. art. 775(2), mistrial may be ordered where “[t]he
jury is unable to agree upon a verdict.”  Such a situation is commonly referred to as
a “hung jury,” which is the verdict that has led to the State‟s current effort to retry
Taylor for the first count of armed robbery.  The State is not prosecuting Taylor for
count two of the bill of information, as the jury found him not guilty of that count.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970), the U.S. Supreme
Court held that the constitutional protection against double jeopardy embodies the
principles of collateral estoppel.   Under the collateral estoppel doctrine, “when an
issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot be litigated between the same parties in any future suit.” Id., 397 U.S.
at 443, 90 S.Ct. at 1194.   In applying this rule, the Court provided the following
guidance:
Where a previous judgment of acquittal was based upon a general
verdict,  as  is  usually  the  case,  this  approach  requires  a  court  to
„examine  the  record  of  a  proceeding,  taking  into  account  the
pleadings, evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict upon an issue
other  than  that  which  the  defendant  seeks  to  foreclose  from
consideration.‟
Id., 397 U.S. at 444, 90 S.Ct. at 1194, quoting Mayers & Yarbrough, Bis Vexari:
New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38-39.
Ashe was accused of being one of three or four perpetrators who robbed six
men at the same time. Ashe, 397 U.S. at 438, 90 S.Ct. at 1191.   The State initially
tried Ashe for armed robbery of one of the six victims.   Id.   According to the
Court, “[t]he proof that an armed robbery had occurred … was unassailable.”   Id.
However, the Court also noted, “the State‟s evidence that [Ashe] had been one of
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the robbers was weak.”   Id.   The jury in that trial “found [Ashe] „not guilty due to
insufficient evidence.   Id., 397 U.S. at 439, 90 S.Ct. at 1192.   The Court noted that
the only “conceivable issue in dispute before the jury was whether petitioner had
been one of the robbers.”   Id., 397 U.S. at 445, 90 S.Ct. at 1195.   Thus, the Court
based its holding that double jeopardy barred further prosecution for the armed
robbery of the other victims on the fact that the jury in the first trial could have
only returned a not guilty verdict based upon a finding that Ashe was not the
perpetrator.  In doing so, the Court reasoned:
The  question  is  not  whether  Missouri  could  validly  charge  the
petitioner with six separate offenses for the robbery of the six poker
players.  It  is  not  whether  he  could  have  received  a  total  of  six
punishments if he had been convicted in a single trial of robbing the
six victims. It is simply whether, after a jury determined by its verdict
that  the  petitioner  was  not  one  of  the  robbers,  the  State  could
constitutionally hale him before a new jury to litigate that issue again.
Ashe, 397 U.S. at 446, 90 S.Ct. at 1195.
This case is distinguishable from Ashe in that the current record does not
indicate that the current prosecution raises the issue of ultimate fact that led to the
first jury‟s acquittal of Count two.   Here, the evidence presented to prove count
two was weak.    The alleged victim of count two did not testify.    The only
eyewitness  testimony  was  that  provided  by  Mr.  Baptiste.                            Under  these
circumstances, it appears the jury‟s  “not guilty” verdict for count two was the
result of the failure of the victim to testify.   Admittedly, Det. Sison testified that
the victim of count two failed to positively identify Taylor as the armed robber.
However, the totality of the record indicates it was failure to produce the victim of
the armed robbery in count two that resulted in the not guilty verdict - not Taylor‟s
identity.                                                                                 However,  Mr.  Baptiste  provided  a  very  clear  and  convincing
identification of Taylor at the first trial.
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In its ruling, the district court also cited the “same evidence” test.   Under
that test:
If the evidence required to support a finding of guilt of one crime
would also have supported conviction of the other, the two are the
same offense under a plea of double jeopardy, and a defendant can be
placed in jeopardy of only one.   The test depends on the evidence
necessary for conviction, not all the evidence introduced at trial.
State v. Steele, 387 So.2d 1175, 1177 (La. 1980)(citation omitted).
In this case, the same evidence test does not apply because the counts
charged are completely separate - two armed robberies of two victims occurred.
In order to prove count two, the state needed to prove the armed robbery of Ms.
Infanse.   To prove the current retrial of count one, the State will have to prove the
armed robbery of Mr. Baptiste.   Although the two crimes occurred at the same
time, different evidence is required for conviction of each offense.
Therefore, we find that the district court abused its discretion in granting the
motion  to  quash,  reverse  that  decision,  and  remand  the  case  for  further
proceedings.
REVERSED AND REMANDED
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