State of Louisiana Versus Ivory D. Franklin, II AKA Deuce ( 2020 )

STATE OF LOUISIANA NO. 19-KA-119
VERSUS FIFTH CIRCUIT
IVORY D. FRANKLIN, II COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-5061, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
September 09, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
VACATED; REMANDED FOR NEW TRIAL
MEJ
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Andrew Decoste
Lynn Schiffman
COUNSEL FOR DEFENDANT/APPELLANT,
IVORY D. FRANKLIN, II AKA DEUCE
Cynthia K. Meyer
JOHNSON, J.
Defendant, Ivory D. Franklin, II, appeals his conviction and sentence in
Twenty-Fourth Judicial District Court Case Number 15-4323. Defendant was
charged with one count of second degree murder and one count of attempted
second degree murder. Defendant’s first trial on the matter resulted in a mistrial on
October 26, 2017 because of a hung jury. On October 8, 2018, eleven out of
twelve jurors found that Defendant was guilty as charged of second degree murder,
and ten out of twelve jurors found Defendant guilty of attempted second degree
murder. Defendant assigns as error the non-unanimous jury verdict, which
violated his due process and equal protection rights under the Sixth and Fourteenth
Amendments. We vacate the convictions and remand the matter for the following
reasons.
For purposes of the Sixth Amendment, federal law defines petty offenses as
offenses subject to imprisonment of six months or less and serious offenses as
offenses subject to imprisonment over six months. The Sixth Amendment’s right to
a jury trial only attaches to serious offenses. See generally, Lewis v. United States,
518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996); Hill v. Louisiana,
2013 WL 486691 (E.D. La. 2013). In this case, Defendant faced a life sentence, if
convicted of second degree murder, and a sentence of not less than ten nor more
than fifty years, both at hard labor, without benefit of parole, probation, or
suspension of sentence for the attempted second degree murder conviction. See La.
R.S. 14:30.1(B), La. R.S. 14:27(D)(1)(a).
In Ramos v. Louisiana, --- U.S. ---, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020),
the United States Supreme Court found that the Sixth Amendment right to a jury
trial—as incorporated against the states by the Fourteenth Amendment—requires a
unanimous verdict to convict a defendant of a serious offense. It held, “Wherever
19-KA-119 1
we might look to determine what the term ‘trial by an impartial jury trial’ meant at
the time of the Sixth Amendment’s adoption—whether it’s the common law, state
practices in the founding era, or opinions and treatises written soon afterward—the
answer is unmistakable. A jury must reach a unanimous verdict in order to
convict.” Id. at 1395. The Court concluded, “There can be no question either that
the Sixth Amendment’s unanimity requirement applies to state and federal trials
equally…So if the Sixth Amendment’s right to a jury trial requires a unanimous
verdict to support a conviction in federal court, it requires no less in state court.”
Id. at 1397. Now, Ramos requires new trials for Louisiana defendants convicted of
serious offenses by non-unanimous juries whose cases are still pending on direct
appeal. Accordingly, we find that, because the verdicts were not unanimous for
the serious offenses before us, Defendant’s convictions and sentences must be
vacated.1
DECREE
Because of the United States Supreme Court’s holding in Ramos, on direct
appeal, we vacate Defendant’s convictions and sentences and remand the matter
for a new trial.
VACATED; REMANDED FOR NEW TRIAL
1
The sufficiency of the evidence was considered as required by State v. Raymo, 419 So.2d 858 (La.1982)
and State v. Hearold, 603 So.2d 731 (La.1992). We find that the State offered evidence at trial to establish
(or offered evidence that a jury could find sufficient to establish) all of the elements of the crimes of
which Defendant was accused. Therefore, Defendant is not entitled to an acquittal under Hudson v.
Louisiana, 450 U.D. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).
19-KA-119 2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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 9, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-119
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)
GRANT L. WILLIS (APPELLEE) J. TAYLOR GRAY (APPELLEE)
MAILED
HONORABLE JEFFREY M. LANDRY HONORABLE PAUL D. CONNICK, JR.
(APPELLEE) (APPELLEE)
ATTORNEY GENERAL DISTRICT ATTORNEY
LOUISIANA DEPARTMENT OF JUSTICE ANDREW DECOSTE (APPELLEE)
1885 NORTH 3RD STREET LYNN SCHIFFMAN (APPELLEE)
6TH FLOOR, LIVINGSTON BUILDING ASSISTANT DISTRICT ATTORNEYS
BATON ROUGE, LA 70802 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053