State of Louisiana Versus Frederick Seymore, Jr. ( 2023 )


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  • STATE OF LOUISIANA                                     NO. 23-KA-50
    VERSUS                                                 FIFTH CIRCUIT
    FREDERICK SEYMORE, JR.                                 COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
    PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
    NO. 16,340, DIVISION "A"
    HONORABLE VERCELL FIFFIE, JUDGE PRESIDING
    September 20, 2023
    MARC E. JOHNSON
    JUDGE
    Panel composed of Judges Susan M. Chehardy,
    Marc E. Johnson, and John J. Molaison, Jr.
    REVERSED AND REMANDED
    MEJ
    SMC
    JJM
    COUNSEL FOR PLAINTIFF/APPELLANT,
    STATE OF LOUISIANA
    Honorable Bridget A. Dinvaut
    Anthony J. Ibert
    COUNSEL FOR DEFENDANT/APPELLEE,
    FREDERICK SEYMORE
    Prentice L. White
    JOHNSON, J.
    Appellant, the State of Louisiana, appeals the October 14, 2022 order of the
    40th Judicial District Court that declared Defendant, Frederick Seymore, Jr., was
    acquitted of the charge of second degree murder, and further ordered that the State
    was barred from retrying the Defendant on the charges delineated in the original
    indictment filed on October 10, 2016. For the following reasons, we reverse the
    district court’s judgment and remand the matter.
    FACTS AND PROCEDURAL HISTORY
    Defendant’s previous conviction of second degree murder by a non-
    unanimous jury and subsequent sentence of life imprisonment without benefits
    were vacated by this Court pursuant to Ramos v. Louisiana, 590 U.S. ––––, 
    140 S.Ct. 1390
    , 
    206 L.Ed.2d 583
     (2020). See State v. Seymore, 20-129 (La. App. 5 Cir.
    11/4/20), 
    305 So.3d 1038
    , 1047. On remand, a second trial commenced on January
    4, 2022 to reconsider whether Defendant was guilty of second degree murder.
    Ultimately, the jury cast “zero guilties” votes in response to the question of
    whether Defendant was guilty of second degree murder. The jury also found, by a
    verdict of 10-2, that Defendant was guilty of manslaughter and cast zero guilty
    votes in response to the question of whether Defendant had committed negligent
    homicide.1
    After a sidebar, the district court declared a mistrial due to the illegal verdict.
    Defendant’s counsel argued that “no yay votes under second degree murder”
    equated to “twelve not guilties”. Thus, the defense believed the jury returned “a
    legal verdict”, although the “yays and nays for manslaughter [was not] a legal vote
    because it’s ten to two”. The State countered that the manslaughter verdict was not
    legal, and advised that it would like an opportunity to research and submit a brief
    on the matter. The district court set a status hearing for March 14, 2022, granted
    1
    Both the State and Defendant waived polling of the jury.
    23-KA-50                                              1
    leave to the parties to submit briefs, but advised both parties on the record that it
    might issue a judgment before then.2
    According to the abstract of minutes in the record, five post-trial status
    hearings were held between March and October 2022. The district court finally
    issued an order with written reasons for judgment on October 14, 2022. The court
    ordered “that the trial resulted in an 12 - 0 acquittal of the charge of second degree
    murder[, . . .] that the record be corrected to reflect this[, . . .] and that the State is
    barred from retrying the case in all respects as related to the facts in the
    indictment[.]” The State then filed a Motion to Reconsider the Court’s Order of
    October 14, 2022, which was denied by the district court on November 14, 2022.
    The next day, the State filed its writ application with this Court. On
    December 2, 2022, this Court denied the State’s writ application finding that the
    judgment was final and appealable. State v. Seymore, 22-529 (La. App. 5 Cir.
    12/02/22) (unpublished writ disposition). This Court remanded the matter with
    instructions for the district court to consider the State’s notice of intent to seek
    supervisory writs as a motion for appeal and to proceed accordingly. 
    Id.
     The
    instant appeal followed.
    ASSIGNMENTS OF ERROR
    The State appeals the district court’s October 14, 2022 order that found
    Defendant was acquitted of the charge of second degree murder, ordered the record
    to be corrected to enter an acquittal of second degree murder, and barred the State
    from retrying the matter in all respects as related to the factual circumstances
    delineated in the original indictment filed on October 10, 2016. The State argues
    that the jury did not reach a valid verdict on all the charges at the end of the
    deliberations that took place on January 7, 2022.
    2
    Defendant remained released on bail with conditions pending judgment.
    23-KA-50                                            2
    The State also contends that the district court erred in barring the retrial of
    Defendant, and in quashing the original indictment on the Court’s own motion.
    The State asserts that neither party requested that the Court’s original ruling
    ordering the mistral be reversed, and an order of acquittal be entered. The State
    contends that Defendant has not filed any other motions, including a motion to
    quash the indictment. As such, the State maintains that the Court acted without
    authority in reversing the order of mistrial, ordering the entry of an acquittal on the
    charge of second degree murder, and, in quashing the bill of indictment on its own
    motion.
    Defendant maintains that the district court correctly entered a valid acquittal
    on the charge of second degree murder that would bar the State from subsequently
    retrying Defendant on the second degree murder charge. Pursuant to State v.
    Gasser, 21-255 (La. App. 5 Cir. 12/16/21), 
    335 So.3d 342
    , writ granted, 22-64
    (La. 3/2/22), 
    333 So.3d 823
    , aff'd, 22-64 (La. 6/29/22), 
    346 So.3d 249
    , Defendant
    asserts that the jury’s unanimous not guilty verdict of the greater offense would act
    as an implied acquittal of that offense for any future prosecutions[.]
    LAW AND DISCUSSION
    Acquittal of second degree murder charge
    In a jury case, a mistrial may be ordered, and the jury dismissed, when the
    jury is unable to agree upon a verdict. La. C.Cr.P. art. 775(2). “When a mistrial is
    granted because the jury is deadlocked, a second trial is a ‘manifest necessity’.”
    State v. Brossette, 93-1036 (La. App. 3d Cir. 3/2/94), 
    634 So.2d 1309
    , 1314-15,
    writ denied, 94-802 (La. 6/24/94) 
    640 So.2d 1344
    , citing Oregon v. Kennedy, 
    456 U.S. 667
    , 
    102 S.Ct. 2083
    , 
    72 L.Ed.2d 416
     (1982). “In such a case of ‘manifest
    necessity’, the double jeopardy clause does not attach to bar reprosecution.” 
    Id.
    In Gasser, supra, the defendant was charged with second degree murder in
    connection with the shooting death of Joseph McKnight related to a 2016 road rage
    23-KA-50                                   3
    incident. 335 So.3d at 253. On January 26, 2018, the jury returned a non-
    unanimous, responsive verdict of ten to two – a valid verdict at the time – finding
    the defendant guilty of the lesser offense of manslaughter in violation of La. R.S.
    14:31. The Gasser court concluded “Defendant's conviction of the lesser included
    offense of manslaughter was an implied acquittal of the second degree murder
    charge and the State may not retry defendant for second degree murder.” Gasser,
    346 So.3d at 262. 323, 329; Price v. Georgia, 
    90 S.Ct. 1757
    , 1761; 
    26 L.Ed.2d 300
    (1970) (emphasis added, footnote omitted).
    Although the Louisiana supreme court overruled State v. Goodley, 
    423 So.2d 648
     (La. 1982), in Gasser, it took note of the following language from Goodley:
    “[w]here no valid judgment has been obtained, the defendant's double jeopardy
    interests simply cannot be considered to extend so far as to compel society to
    relinquish its interest in punishing one whose guilt is clear by means of a fair and
    procedurally accurate trial.” Id. at 651 (Emphasis added). “[I]t follows that the
    Fifth Amendment likewise should not bar retrial of a defendant where a non-
    waivable defect, such as an illegal verdict fails to result in either a conviction or
    acquittal at defendant's first trial.” Id. (Emphasis added).
    The only responsive verdicts which may be rendered when the indictment
    charge is second degree murder are: Guilty; Guilty of manslaughter; Guilty of
    negligent homicide; or Not Guilty. La. C.Cr.P. art. 814. In the instant case, the
    district court entered and recorded the jury’s verdict, then discharged the jury
    before declaring a mistrial. In reviewing the summary of the responsive verdicts
    for the charges listed at the bottom of the verdict sheet, it appears that only two
    jurors found Defendant “Not Guilty” of second degree murder – although the
    verdict, and both the minute entry and transcript from the last day of trial, reveal
    that no “Guilty” votes were cast. Additionally, because the 10-2 verdict on the
    23-KA-50                                   4
    manslaughter charge is not a legal verdict, it cannot operate as an implied acquittal
    of the second degree murder charge as was the case in Gasser, supra.
    The State cited to State v. Robinson, 21-561 (La. App. 5 Cir. 8/23/21)
    (unpublished writ disposition), writ denied, 21-1315 (La. 8/27/21), 
    323 So.3d 381
    ,
    in support of its argument that it may proceed to trial with second degree murder
    charges against Defendant until a “valid verdict” – a unanimous decision on one of
    the four permissible verdicts allowed pursuant to La. C.Cr.P. art. 814(3) – is
    returned. In Robinson, we reiterated this Circuit’s position that unanimous verdicts
    are required to convict or acquit in felony cases. The jury in Robinson found the
    defendant not guilty of felony charges by a verdict of ten to two. Because a non-
    unanimous verdict cannot acquit a defendant of the charge(s) faced, in that case,
    jeopardy did not attach, and the defendant could be retried on those same felony
    charges after a mistrial had been declared. Likewise, in the case before us, we find
    that the non-unanimous, illegal, non-responsive verdict returned by the jury cannot
    acquit Defendant of the second degree murder charge. Double jeopardy did not
    attach, and the State may retry Defendant on the second degree murder charge.
    Last, we find that the district court’s original order of a mistrial pursuant to La.
    C.Cr.P. art. 775(2) was correct.
    Sua sponte motion to quash indictment
    The district court’s October 14, 2022 order effectively quashed the
    indictment in this matter. A motion to quash is a procedural vehicle for
    challenging an indictment or a bill information. La. C.Cr.P. arts. 531-533. La.
    C.Cr.P. art. 536 states: “A motion to quash shall be in writing, signed by the
    defendant or his attorney, and filed in open court or in the office of the clerk of
    court. It shall specify distinctly the grounds on which it is based. The court shall
    hear no objection based on grounds not stated in the motion.” Previously, this
    Court has strictly construed the provisions of La. C.Cr.P. art. 536 and held that
    23-KA-50                                   5
    failure to file a written motion to quash, or specify grounds upon which it is based,
    is reversible error. See State v. Branch, 00-1668 (La. App. 5 Cir. 3/28/01), 
    784 So.2d 43
    ; State v. Bentel, 00-57 (La. App. 5 Cir. 9/26/00), 
    769 So.2d 1247
    . A
    motion to quash a bill of information may be based on the grounds that trial for the
    offense charged would constitute double jeopardy. See La. C.Cr.P. art. 532(6).
    On appeal, the State contends, and the defense concedes, that Defendant has
    not filed a motion to quash the indictment. In fact, Defendant’s brief on appeal
    concedes that it is unprecedented for the trial court, on its own motion, to “make an
    order that would essentially quash the indictment that was filed.”
    In State v. Wiggins, 20-23 (La. App. 5 Cir. 9/22/20), 
    2020 WL 5640479
    (unpublished opinion), the State contended that the trial court erred in granting the
    defendant’s motion to enforce a plea agreement, thereafter quashing the bill of
    information. This Court vacated the trial court’s ruling that effectively quashed the
    prosecution and remanded the matter for further proceedings. First, this Court
    noted that the defendant did not file a motion to quash seeking a dismissal of the
    prosecution; rather, the defendant only requested throughout the proceedings that
    the court enforce an alleged agreement that he would not serve jail time on his
    current charges. This Court noted that a request for the enforcement of an
    agreement that provided for no jail time does not necessarily require a dismissal of
    the charges, and held that the trial court clearly exceeded its authority in quashing
    the prosecution. Id. at *3.
    See also State v. Everson, 15-1159 (La. App. 4 Cir. 4/20/16), 
    194 So.3d 1146
    , where the trial court sua sponte quashed bills of information, and the State
    appealed the trial court’s rulings, arguing that only a defendant or his trial counsel
    may file a motion to quash. The appellate court held that La. C.Cr.P. art. 536 does
    not authorize a trial court to quash a bill of information on its own motion, and the
    trial court’s action was a unilateral act not permitted by La. C.Cr.P. art. 536.
    23-KA-50                                   6
    Likewise, in the case at bar, we find that the district court was without
    authority to issue an order sua sponte, stating that the State is “barred from retrying
    this case in all respects as related to the factual circumstances delineated on the
    indictment filed on October 10, 2016,” in the absence of a written motion to quash
    as required by La. C.Cr.P. art. 536.3
    DECREE
    Considering the foregoing, the district court’s October 14, 2022 order that
    the January 4, 2022 trial resulted in 12-0 acquittal in favor of Defendant of the
    charge of second degree murder, that the record be corrected to enter the acquittal
    of the second degree murder charge, and that the State is “barred from retrying
    Defendant on the charge of second degree murder as related to the factual
    circumstances delineated on the indictment filed on October 10, 2016” is reversed.
    The matter is remanded to the district court for further proceedings.
    REVERSED AND REMANDED
    3
    See La. C.Cr.P. art. 61, which provides, “Subject to the supervision of the attorney general, as provided
    in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or
    pending in his district, and determines whom, when, and how he shall prosecute.” See also La. Const.
    Art. V § 26(B), which states, “Except as otherwise provided by this constitution, a district attorney, or his
    designated assistant, shall have charge of every criminal prosecution by the state in his district, be the
    representative of the state before the grand jury in his district, and be the legal advisor to the grand jury.
    He shall perform other duties provided by law.”
    23-KA-50                                              7
    SUSAN M. CHEHARDY                                                             CURTIS B. PURSELL
    CHIEF JUDGE                                                                   CLERK OF COURT
    SUSAN S. BUCHHOLZ
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                            LINDA M. WISEMAN
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    JOHN J. MOLAISON, JR.
    SCOTT U. SCHLEGEL                             FIFTH CIRCUIT
    MELISSA C. LEDET
    JUDGES                                 101 DERBIGNY STREET (70053)
    DIRECTOR OF CENTRAL STAFF
    POST OFFICE BOX 489
    GRETNA, LOUISIANA 70054               (504) 376-1400
    (504) 376-1498 FAX
    www.fifthcircuit.org
    NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
    I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
    IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
    SEPTEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
    PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
    23-KA-50
    E-NOTIFIED
    40TH DISTRICT COURT (CLERK)
    HONORABLE VERCELL FIFFIE (DISTRICT JUDGE)
    VERCELL FIFFIE (APPELLANT)             ANTHONY J. IBERT (APPELLANT)    HONORABLE BRIDGET A. DINVAUT
    (APPELLANT)
    MAILED
    PRENTICE L. WHITE (APPELLEE)
    ATTORNEY AT LAW
    LOUISIANA APPELLATE PROJECT
    16731 CICERO AVENUE
    BATON ROUGE, LA 70816
    

Document Info

Docket Number: 23-KA-50

Judges: Vercell Fiffie

Filed Date: 9/20/2023

Precedential Status: Precedential

Modified Date: 10/21/2024