State of Louisiana Versus Jerman Neveaux ( 2023 )

STATE OF LOUISIANA NO. 23-K-466
VERSUS FIFTH CIRCUIT
JERMAN NEVEAUX COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-4029, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
November 08, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst
WRIT DENIED.
SMC
FHW
SJW
COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
COUNSEL FOR DEFENDANT/RELATOR,
JERMAN NEVEAUX
Richard J. Bourke
Elliott T. Brown
COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Grant L. Willis
CHEHARDY, C.J.
Defendant, Jerman Neveaux, seeks supervisory review of the trial court’s
ruling that denied his Motion to Declare La. C.C.P. art. 798(2)(A) & (B)
Unconstitutional or to Bar the State from Challenging Jurors with Conscientious
Scruples Against the Death Penalty Arising from Religious Beliefs. For the
reasons that follow, the writ is denied.
PROCEDURAL HISTORY
On October 13, 2016, defendant, Jerman Neveaux, was indicted for the first
degree murder of Jefferson Parish Sheriff’s Office (JPSO) Detective David Michel
in violation of La. R.S. 14:30. The State is seeking the death penalty.
On or about July 10, 2023, defendant filed a Motion to Declare La. C.C.P.
art. 798(2)(A) & (B) Unconstitutional or to Bar the State from Challenging Jurors
with Conscientious Scruples Against the Death Penalty Arising from Religious
Beliefs. On July 24, 2023, the State filed State’s Omnibus Response to
Defendant’s Motions Relative to Death Penalty Procedures and Substance, to
which defendant filed a reply. Following a hearing, the trial court denied
defendant’s motion on August 23, 2013. Defendant timely filed the instant writ
application on September 22, 2023.
DISCUSSION
Defendant’s Argument in Support of His Motion
In his motion, defendant requested that the trial court declare La. C.Cr.P. art.
798(2)(a) and (b) unconstitutional on the basis that it substantially burdens the free
exercise of religion. He argued that the Article grants the district attorney’s office
the discretion to challenge a juror for cause because of his or her conscientious
scruples against the death penalty, even where those scruples derive from the
exercise of sincerely held religious beliefs. Further, defendant argued that
exclusion from public service as a juror on the most important criminal cases, and
the cases in which citizens are asked to express the moral conscience of the
community, burdens free exercise for those whose religious beliefs would require
them to forego voting for the death penalty. Additionally, defendant alleged that
because La. C.Cr.P. art. 798(2)(a) and (b) is a discretionary clause, it is not a law
of general application, and, therefore, the burden falls on the State under the strict
scrutiny test to demonstrate a compelling State interest in refusing to exempt jurors
from cause challenges where their conscientious scruples against the death penalty
arise from their religious beliefs.
In addition, defendant argued the State cannot show a compelling State
interest in failing to exempt from removal for cause those jurors, whose exercise of
religious beliefs would substantially impair their ability to vote for death, where
death is never a required outcome and where those jurors play a legitimate role in
expressing the moral conscience of the community. He further argued that even if
the State has an interest in ensuring the possibility of a death verdict in a particular
case, the exclusion of religious jurors from capital trials is not narrowly tailored to
satisfy that interest. Defendant requested that the trial court hold an evidentiary
hearing in order to present evidence showing that being required to set aside
religious beliefs opposed to the death penalty burdens religion. He asserted that in
its recent decision in Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. ---,
141 S.Ct. 1868, 210 L.Ed.2d 137 (2021), the United States Supreme Court
explained the operation of the Free Exercise Clause. Lastly, in his writ application,
defendant avers that the claim he presents is res nova and must be considered
under the guidance of Fulton.
The State’s Response
In response, the State urged that defendant’s argument essentially suggests
that La. C.Cr.P. art. 798(2)(a) and (b) unconstitutionally results in a more death-
prone jury, an argument which the State contends the Louisiana Supreme Court
rejected in State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, cert. denied,
2
568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). Further, the State argued
defendant failed to show any constitutional defect in La. C.Cr.P. art. 798(2)(a) and
(b), or that he is entitled to bar it from striking jurors with conscientious scruples
against the death penalty. Moreover, the State argued that if defendant feels during
voir dire that a challenge by the State is unfounded in law, he may make
appropriate good faith and non-frivolous objections at that time, upon which the
trial court will thereafter rule. Consequently, the State contended that, at this
juncture, there is nothing to litigate on this point.
The State further argued that, by couching his claim in terms of religious
freedom, defendant seeks to evade the fact that the constitutionality of La. C.Cr.P.
art. 798(2)(a) and (b) has already been upheld. Specifically, the State noted that in
State v. Spell, 21-876 (La. 5/13/22), 339 So.3d 1125, our Supreme Court held that
regardless of its burden on religious exercise, a law that is neutral and generally
applicable does not violate the Free Exercise Clause and is not subject to strict
scrutiny. The State argued that, despite defendant’s contention to the contrary, La.
C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable given that it does
not target any particular religion and applies to anyone who falls under its ambit,
regardless from where that person’s beliefs stem. Further, the State asserted the
analysis does not change simply because a prosecutor must raise a challenge to that
particular individual, since the State does not have in place a system of individual
exemptions from the law nor does the statute grant exemptions. Moreover, the
State argued that La. C.Cr.P. art. 798(2)(a) and (b) does not treat any comparable
secular activity more favorably than religious exercise, given that an atheistic
individual who is morally opposed to the death penalty is subject to the same
challenge as a religious individual who is morally opposed to the death penalty.
The State asserted that in State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d
590, cert. denied, 578 U.S. 1018, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016), the
3
Louisiana Supreme Court rejected a challenge to La. C.Cr.P. art. 798(2)(a) and (b)
based on a free exercise argument. According to the State, since Tucker, there has
been no further jurisprudence that would justify a changed result, and that La.
C.Cr.P. art. 798(2)(a) and (b) would survive any level of scrutiny. For these
reasons, and because defendant’s free exercise challenge to La. C.Cr.P. art.
798(2)(a) and (b) has previously been rejected by controlling jurisprudence, the
State argued that an evidentiary hearing on this issue would be an exercise in
futility and a waste of the court’s time and resources.
The August 23, 2023 Hearing on Defendant’s Motion
At the hearing on defendant’s motion, defense counsel argued that, under
Fulton, La. C.Cr.P. art. 798(2)(a) and (b) is not a law of general applicability. In
response, the State argued that Fulton is a case involving foster care and, thus, is
not applicable to a criminal case. Further, the State argued that La. C.Cr.P. art.
798(2)(a) and (b) is a law of general applicability, because someone may be unable
to impose the death penalty, not only on the basis of religion, but for some other
reason, and that Fulton did not change anything. Moreover, the State averred that
it is a strained fit to call it an exemption when a prosecutor fails to make an
appropriate cause challenge, because if a prosecutor allows someone to sit on a
capital jury who does not believe in the death penalty, this is actually a windfall to
the defense, not an exemption.
At the close of the hearing, the trial court denied defendant’s motion to bar
the State from challenging jurors with conscientious scruples against the death
penalty arising from religious beliefs. The trial court ruled that La. C.Cr.P. art. 798
is a law of general applicability and not unconstitutional. Defendant filed the
instant writ application seeking this Court’s supervisory review of the trial court’s
ruling.
Defendant’s Writ Application
4
In his application, defendant argues the trial court erred in its determination
that La. C.Cr.P. art. 798(2)(a) and (b) is a law of general applicability, and erred in
denying his motion to declare the Article unconstitutional as burdening the free
exercise of religion. The determination of the constitutionality of a statute presents
a question of law subject to de novo review. State v. Webb, 13-1681 (La. 5/7/14),
144 So.3d 971, 975.
Louisiana Code of Criminal Procedure article 798, entitled “Causes for
challenge by the state,” provides, in pertinent part:
It is good cause for challenge on the part of the state, but
not on the part of the defendant, that:
****
(2) The juror tendered in a capital case who has
conscientious scruples against the infliction of capital
punishment and makes it known:
(a) That he would automatically vote against the
imposition of capital punishment without regard to
any evidence that might be developed at the trial of
the case before him;
(b) That his attitude toward the death penalty would
prevent or substantially impair him from making
an impartial decision as a juror in accordance with
his instructions and his oath[.]
[Internal footnote added.]
In State v. Brown, 16-998 (La. 1/28/22), 347 So.3d 745, 804-04, cert.
denied, ---U.S.---, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023), the Supreme Court
discussed La. C.Cr.P. art. 798(2) as follows:
The basis of the exclusion under La. C.Cr.P. art. 798(2),
which incorporates the standard of Witherspoon [v. State
of Ill., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776], as
clarified by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.
844, 83 L.Ed.2d 841 (1985), is that the juror’s views
“would prevent or substantially impair him from making
an impartial decision as a juror in accordance with his
instructions and his oath.” Witt, 469 U.S. at 424, 105
S.Ct. 844. Witherspoon further dictates that a capital
defendant’s rights under the Sixth and Fourteenth
Amendments to an impartial jury prohibits the exclusion
5
of prospective jurors “simply because they voiced
general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.”
Witherspoon, 391 U.S. at 522, 88 S.Ct. 1770.
A prospective juror whose views would either lead him
to vote automatically against the death penalty or would
substantially impair his or her ability to follow the
instructions of the trial court and consider a sentence of
death is not qualified to sit on the jury panel in a capital
case. Witt, 469 U.S. at 424, 105 S.Ct. 844; La. C.Cr.P.
art. 798(2).
In Fulton, supra, upon which defendant’s argument is based, a state-licensed
foster care agency affiliated with the Roman Catholic Diocese, together with three
foster parents affiliated with the agency, brought a § 1983 action against the city
alleging that the city’s refusal to contract with the agency unless it agreed to certify
same-sex couples as foster parents violated the Free Exercise and Free Speech
Clauses of the First Amendment. The U.S. District Court denied the motions for a
temporary restraining order and a preliminary injunction filed by the agency and
foster parents, and they appealed. The U.S. Third Circuit Court of Appeal
affirmed, and certiorari was granted. The U.S. Supreme Court held, among other
things, that the city burdened the agency’s religious exercise by requiring the
agency to choose between curtailing its mission or approving relationships
inconsistent with its beliefs, and that the non-discrimination requirement in the
city’s standard foster care contract was not generally applicable, and thus, was
subject to strict scrutiny.
The Louisiana Supreme Court discussed Fulton, the Free Exercise Clause,
and laws of general applicability, in State v. Spell, supra:
The First Amendment, applicable to the states through
the Fourteenth Amendment, provides that “Congress
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof …” U.S.
Const., Amdt 1 (emphasis added); Fulton v. City of
Philadelphia, Pennsylvania, ---U.S.---, 141 S.Ct. 1868,
1876, 210 L.Ed.2d 137 (2021). Article I, Section 8 of the
Louisiana Constitution similarly provides, “No law shall
be enacted respecting an establishment of religion or
6
prohibiting the free exercise thereof.” The free exercise
of religion means the right to believe and profess
whatever religious doctrine one desires.
****
A law that substantially burdens the free exercise of
religion violates the First Amendment. See Hernandez v.
Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148,
104 L.Ed.2d 766 (1989)); Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 718,
101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Wisconsin
v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1536, 32
L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398,
403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1063). This
standard, sometimes called the “Sherbert test,” was
applied by the Supreme Court for almost 30 years to
determine whether government action was subject to
strict scrutiny under the Free Exercise Clause. In Smith,1
however, the Supreme Court held that, regardless of its
burden on religious exercise, a law that is “neutral” and
“generally applicable” does not violate the Free Exercise
Clause and is not subject to strict scrutiny. See Smith,
494 U.S. at 878-80, 110 S.Ct. at 1600. If prohibiting the
exercise of religion is “merely the incidental effect of a
generally applicable and otherwise valid provision, the
First Amendment has not been offended.” Smith, 494
U.S. at 878, 110 S.Ct. at 1600. Smith effectively carved
out an exception to the Sherbert test that allows
restrictions on religious liberty that previously may not
have survived strict scrutiny. After Smith, under the
federal jurisprudence, a law burdening religious exercise
is subject to strict scrutiny only if it is not neutral and
generally applicable. See Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct.
2217, 2233, 124 L.Ed.2d 472 (1993).
A governmental regulation burdening religious exercise
is not neutral and generally applicable if, by granting
exemptions, it treats any comparable secular activity
more favorably than religious exercise. See Fulton, 141
S.Ct. at 1877; Tandon v. Newsom, ---U.S.---, 141 S.Ct.
1294, 1296, 209 L.Ed.2d 355 (2021) (per curiam);
Roman Catholic Diocese of Brooklyn v. Cuomo, ---U.S.--
-, 141 S.Ct. 63, 66-67, 208 L.Ed.2d 206 (2020) (per
curiam). As Smith recognized, a law may violate the
Free Exercise Clause and trigger strict scrutiny if “the
State has in place a system of individual exemptions”
from the law. Smith, 494 U.S. at 884, 110 S.Ct. at 1603.
If the statute grants exemptions, the government “may
not refuse to extend that system to cases of religious
hardship without compelling reason.” Smith, 494 U.S. at
1
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110
S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990).
7
884, 110 S.Ct. at 1603 (internal quotation marks
omitted). It is not sufficient for the state to point out that
it treats some comparable secular businesses or other
activities as poorly as or even less favorably than the
religious exercise at issue. Tandon, 141 S.Ct. at 1296.
Rather, once a state creates any favored class of business,
the state must justify why houses of worship are excluded
from that favored class. Roman Catholic Diocese, 141
S.Ct. at 73 (Kavanaugh, J., concurring); see also Church
of Lukumi, 508 U.S. at 537, 113 S.Ct. at 2229.
Spell, 339 So.3d at 1131-33. [Internal footnote added.]
While our research did not produce a case wherein a Louisiana court
specifically addressed whether La. C.Cr.P. art. 798 is a law of general
applicability, numerous Louisiana cases have upheld the constitutionality of La.
C.Cr.P. art. 798. In Odenbaugh, supra, the Louisiana Supreme Court addressed
whether Louisiana’s death qualification process is unconstitutional on the basis
that it violates the right to an impartial jury, unfairly leads to a death-prone jury,
and denies a fair cross-section of the venire available to non-capital defendants. In
upholding the constitutionality of La. C.Cr.P art. 798, the Supreme Court stated:
[T]here should be no question of the constitutional
validity of LSA-C.Cr.P. art. 798 since it was drafted to
conform to the constitutional requirements set forth in
[Witherspoon]; see also, [Witt]. In Lockhart v. McCree,
476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the
Supreme Court held that the Constitution does not
prohibit excluding potential jurors under Witherspoon or
that “death qualification” resulted in a more conviction-
prone jury. Likewise, this Court has repeatedly rejected
the claim that the Witherspoon qualification process
results in a death-prone jury … This Court finds no need
to revisit this longstanding principle of law.
Odenbaugh, 82 So.3d at 248-49. [Internal citations omitted].
In State v. Brown, supra, the defendant raised the constitutionality of the
death qualification procedure. During voir dire, but after the trial court granted
cause challenges of several jurors who expressed religious and moral scruples
against the death penalty, the defendant raised objections to La. C.Cr.P. art. 798
and Witherspoon. Specifically, defense counsel argued that the defendant was
8
subject to a more onerous standard than was required of the State when it came to
challenges under La. C.Cr.P. arts. 797 and 798. In rejecting the defendant’s
argument, the Supreme Court stated, “Before this court defendant presents no valid
argument as to why the reasoning in Odenbaugh does not apply to his case, or why
this court’s longstanding jurisprudence should be disturbed.” Id., 347 So.3d at
804.
In State v. Turner, 16-1841 (La. 12/5/18), 263 So.3d 337, cert. denied, ---
U.S.---, 140 S.Ct. 555, 205 L.Ed.2d 355 (2019), the defendant argued the trial
court erred in granting the State’s challenge for cause of twenty-three jurors based
on La. C.Cr.P. art. 798(2) after they expressed opposition to capital punishment
based on religious beliefs. He argued the State’s challenges violated the First
Amendment and the Louisiana Religious Freedom Act. He further claimed that the
exclusion of citizens from jury service under La. C.Cr.P. art. 798 due to their
religious beliefs improperly burdens the free exercise of religion and that death
qualification is unconstitutional because it does not serve any compelling
governmental interest that cannot be served by means less burdensome on citizens’
free exercise of religion. As such, the defendant argued that his convictions and
death sentence should be reversed to vindicate the rights of these individuals, and
because no confidence can be had in a verdict imposed by a jury from which
numerous citizens were unlawfully excluded. The trial court denied the
defendant’s pre-trial motion, and motion for new trial, based on this issue. In
rejecting the defendant’s argument as meritless, the Supreme Court, citing
Odenbaugh, stated that La. C.Cr.P. art. 798 was drafted to conform to
Witherspoon. Additionally, the Supreme Court noted that it had previously
rejected challenges to the statute’s constitutionality with regard to excluding jurors
during death qualification voir dire, and determined that La. C.Cr.P. art. 798 did
not run afoul of prohibitions against religious discrimination. Id at 395-96
9
(quoting State v. Sanders, 93-1 (La. 11/30/94), 648 So.2d 1272, cert. denied, 517
U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), and State v. Robertson, 97-
177 (La. 3/4/98), 712 So.2d 8, 25-26, cert. denied, 525 U.S. 882, 119 S.Ct. 190,
142 L.Ed.2d 155 (1998) (“It is not the prospective juror’s religion per se which
justifies the challenge for cause but his views on the death penalty, regardless of
their source or impetus.”).
In Sanders, supra, the defendant claimed that La. C.Cr.P. art. 798 was
unconstitutional on its face. In this case, two veniremen stated that because of
their religious beliefs, they could not under any circumstances vote for the death
penalty. The trial court thereafter disqualified them. The defendant argued the
exclusion of jurors on such grounds violated La. Const. art. I, § 3, which prohibits
all discrimination based on religious beliefs. In rejecting the defendant’s
argument, the Supreme Court found that the defendant had neither argued nor
shown that the alleged discrimination the two jurors allegedly suffered actually
constituted religious discrimination. Instead, the defendant’s inquiry was restricted
to the question of whether the veniremen could vote for the death penalty. The
Court noted that it had previously held that “the ‘single attitude’ of opposition to
the death penalty ‘does not represent the kind of … religious … characteristic that
underlies those groups that have been recognized as being distinctive.’” Id. at
1287-88 (quoting State v Lowenfield, 495 So.2d 1245, 1254 (La. 1985), cert.
denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986)). Further, the
Sanders Court found that if the reluctance to impose the death penalty was
religious in nature, it had adopted the Witherspoon and Witt standards. The Court
asserted that on numerous prior occasions, it had reviewed the disqualification of
jurors who stated a religious basis for their inability to impose the death penalty
and had never found a constitutional violation, and that considering the substantial
jurisprudence addressing the issue, the defendant’s assignment of error lacked
10
merit. Id. at 1288 (citing State v. Copeland, 530 So.2d 526 (La. 1988), cert.
denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989); State v. Ward,
483 So.2d 578 (La. 1986), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d
168 (1986); and Lowenfield, supra, 495 So.2d at 1254-55).
After de novo consideration of defendant’s writ application herein, we find
the trial court did not err by denying his motion to declare La. C.Cr.P. art.
798(2)(a) and (b) unconstitutional or to bar the State from challenging jurors with
conscientious scruples against the death penalty arising from religious beliefs.
Based on the existing jurisprudence upholding the constitutionality of La. C.Cr.P.
art. 798, we find that La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally
applicable because (1) it does not focus on a particular religion or religion at all,
and (2) it applies to anyone regardless of the source of his or her views on the
death penalty. See Odenbraugh, supra; Brown, supra; Turner, supra; Sanders,
supra. For these reasons, the writ is denied.
WRIT DENIED
11
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
NOVEMBER 8, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-K-466
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
DARREN A. ALLEMAND (RESPONDENT) THOMAS J. BUTLER (RESPONDENT) ELLIOTT T. BROWN (RELATOR)
RICHARD J. BOURKE (RELATOR) GRANT L. WILLIS (RESPONDENT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(RESPONDENT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053