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State v. Harris2/20/1998
s only guilty of negligent homicide, it should return a verdict of not guilty to the charge of murder. State v. Marse, 365 So.2d at 1324.
In this case, we find that the negligent homicide charges were not supported by the evidence. The only evidence containing facts supporting negligent homicide was the testimony of the defendant's step-son and son, Benjamin and Demetric. Benjamin and Demetric testified that the victim tried to grab the gun immediately before being shot, and Demetric testified that the gun went off as the defendant was "falling back." Yet, the statements by both witnesses recorded immediately after the crime contradicted their testimony.
However, even assuming that there was sufficient evidence for the jury to find negligent homicide, such that the court should have given the defendant's instructions, the error, if any, is not reversible. The jury had enough information without the special jury charges to understand that, should it find the defendant guilty of criminal negligence, it should not find him guilty of second degree murder. See State v. Gray, 430 So.2d 1251 (La. App. 1 Cir. 1983). The trial court gave instructions during the general charge to the jury regarding the element of specific intent required on the part of the defendant in order to find him guilty of second degree murder. Furthermore, the trial judge sufficiently instructed the jury on the elements of the possible verdicts and that they must find the state proved all the elements of one of those crimes beyond a reasonable doubt or return a verdict of not guilty. State v. Jackson, 450 So.2d 621 (La. 1984). See also State v. Tompkins, 403 So.2d at 649.
Additionally, in this case, unlike in Williams, the trial court charged the jury as to LSA-R.S. 14:31(A)(2), that part of the manslaughter statute which deals with unintentional killings during the commission of certain felonies or misdemeanors. As the trial court commented, the Williams court noted that in that case "the trial court gave no instruction regarding manslaughter as an unintentional killing during the commission of certain felonies or misdemeanors under LSA-R.S. 14:31(2) . . . If a trial court gives an instruction under 14:31(2), then a negligent homicide instruction may not be required. See State v. Tompkins, 403 So.2d 644 (La. 1981)." State v. Williams, 606 So.2d at 1390, n. 1. See also State v. Clark, 93-903 (La. App. 3 Cir. 3/16/94); 638 So.2d 225. The defense counsel in closing argument told the jury that if it found that the defendant lacked specific intent and shot the victim while falling back, the jury could reach a manslaughter verdict, referring to LSA-R.S. 14:31(A)(2). During voir dire, the prosecutor informed potential jurors that if a person did not intend to kill or inflict great bodily harm upon another person, but caused death while committing a battery, for example, then the person would have committed manslaughter. The defense also mentioned this provision of the manslaughter statute during voir dire. The court informed the jury regarding this provision of the manslaughter statute. For these reasons, while the trial court may have erred in not giving the negligent homicide charges, this error is not reversible. This assignment of error is without merit.
The instruction at issue on intoxication was as follows:
JURY INSTRUCTION # 6:
"The term intoxication means a condition resulting from the drinking of alcoholic beverage which impairs a person's normal capacity to form a specific intent to kill or inflict great bodily harm." State v. Leroux, 641 So.2d 656, 661 (La. App. 5th Cir. 1994).
The court found that this instruction was incomplete and also stated that the
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