State v. Thomas, 926 So. 2d 490 (La. 2006). · Go Syfert
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State v. Thomas, 926 So. 2d 490 (La. 2006). Cases Citing This Book View Copy Cite
19 citation events (19 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Edwards (lactapp, 2014-01-22)
Top citers, strongest first. 7 distinct citers. How cited ↗
cited Cited as authority (rule) State v. Edwards
La. Ct. App. · 2014 · confidence medium
See also Green v. United, States, 355 U.S. 184, 190 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957); State v. Thomas, 05-2878, p. 2 (La.4/17/06), 926 So.2d 490, 491 (per curiam).
discussed Cited as authority (rule) State v. Thomas
La. · 2013 · confidence medium
Id. at 2, 926 So.2d at 491 (internal citations removed). [ thereafter, defendant filed an application for post-conviction relief, including a claim that his counsel at the second trial was ineffective for failing to file a motion to quash the jeopardy-barred charge of aggravated burglary.
discussed Cited as authority (rule) State v. Shannon
La. Ct. App. · 2011 · confidence medium
“Comment on the defendant’s failure to |2stake the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).” Jones , 08-20 at p. 16, 985 So.2d at 245 (quoting State v. Thomas, 05-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam)).
discussed Cited as authority (rule) State v. Jones
La. Ct. App. · 2008 · confidence medium
"Comment on the defendant's failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)." State v. Thomas, 05-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam).
cited Cited as authority (rule) State v. LeBoeuf
La. Ct. App. · 2006 · confidence medium
State v. Thomas, 05-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam).
cited Cited "see" State v. Hano
La. Ct. App. · 2006 · signal: see · confidence high
See State v. Thomas, 2005-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam); see also State v. Jones , XXXX-XXXX, pp. 3-4 (La.2/22/06), 922 So.2d 508, 511-12 .
discussed Cited "see, e.g." State v. Theriot
La. Ct. App. · 2007 · signal: see also · confidence low
See also, State v. Griffin, 2006-543 (La.App. 3 Cir. 9/27/06) , 940 So.2d 845 . [8] State v. Barnes, supra . [9] State v. Styles, 96-897 (La.App. 5 Cir.3/25/97), 692 So.2d 1222, 1233 , writs denied, 97-1069 (La.10/13/97), 703 So.2d 609 , 00-3460 (La.10/12/01), 799 So.2d 496 . [10] State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01) , 806 So.2d 760, 764 , writ denied, 02-0466 (La.2/7/03), 836 So.2d 88 . [11] Id. [12] State v. Lai, 04-1053, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 560 , writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175 . [13] State v. Mims, supra . [14] State v. Lai, supra (cit…
Retrieving the full opinion text from the archive…
STATE of Louisiana
v.
Anthony THOMAS.
2005-K-2373.
Supreme Court of Louisiana.
Apr 17, 2006.
926 So. 2d 490
2006 WL 995616
Per Curiam.
Cited by 13 opinions  |  Published

PER CURIAM.[*]

Granted. The decision of the court of appeal is reversed, defendant's conviction and sentence are reinstated and this case is remanded to the district court for execution of sentence.

[*491] We do not subscribe to the state's view that the grounds for reversing defendant's conviction and sentence for attempted aggravated burglary, that the prosecutor commented indirectly on defendant's failure to take the stand, see State v. Thomas, 99-1500 (La.App. 1st Cir.6/23/00), ___ So.2d ___ (unpub'd) constituted a structural defect in the proceedings which nullified the jury's verdict and permitted it to reindict defendant for the charged offense of aggravated burglary. Comment on the defendant's failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 388 U.S. 263, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Moreover, we have clarified that as a matter of Louisiana law, the mandatory mistrial provisions of La.C.Cr.P. art. 770, which encompass a prosecutor's direct or indirect comment on the defendant's failure to testify, are directives to the trial judge and do not preclude an appellate court from conducting harmless-error analysis. State v. Johnson, 94-1379 (La.11/27/95, 664 So.2d 94). The jury's return of a lesser verdict of attempted aggravated burglary at his first trial thereby acquitted him of the charged offense of aggravated burglary. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)(conviction of lesser offense bars retrial for greater offense); La. C.Cr.P. art. 598(A)(same).

Nevertheless, reversal of defendant's first conviction and sentence did not preclude the state from holding a second trial, only from seeking a conviction for aggravated burglary. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). While the state erred in reindicting defendant and retrying him for the crime of aggravated burglary, the defendant did not move to quash the proceedings before trial, and the trial court, sitting as the fact finder in the case after defendant waived a jury, returned a verdict of guilt on the non-barred offense of unauthorized entry of an inhabited dwelling, a lesser included offense and a responsive verdict to the charged offense as a matter of La.C.Cr.P. art. 814(A)(42). The court of appeal therefore had no basis for vacating that verdict as unresponsive to the charge that it believed should have been brought, i.e., attempted aggravated burglary, because the verdict was not inherently tainted by virtue of its return in the trial of a jeopardy-barred offense. See Morris v. Mathews, 475 U.S. 237, 245, 106 S.Ct. 1032, 1037, 89 L.Ed.2d 187 (1986). Nor was it precluded by any factual finding necessarily resolved by the jury against the state at defendant's first trial when it returned a verdict of attempted aggravated burglary because a factfinder in Louisiana may return a verdict of attempt "although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt." R.S. 14:27(C).

WEIMER, J., recused.

[*] Associate Justice John L. Weimer recused.