State of Louisiana Versus Aaron Harrell ( 2020 )

STATE OF LOUISIANA NO. 19-KA-371
VERSUS FIFTH CIRCUIT
AARON HARRELL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-5778, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
July 08, 2020
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg
CONVICTIONS AND SENTENCES VACATED; REMANDED
JGG
SJW
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
COUNSEL FOR DEFENDANT/APPELLANT,
AARON HARRELL
Jane L. Beebe
DEFENDANT/APPELLANT,
AARON HARRELL
In Proper Person
GRAVOIS, J.
Defendant, Aaron Harrell, appeals his convictions for armed robbery with a
firearm and possession of a firearm by a convicted felon. For the following
reasons, we vacate defendant’s convictions and sentences and remand the matter to
the trial court for further proceedings.
PROCEDURAL HISTORY
On October 17, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Aaron Harrell, with armed robbery in violation of
La. R.S. 14:64 and sought the firearm enhancement provided under La. R.S.
14:64.3(A) (count one). The bill of information additionally charged defendant
with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1
(count two). Defendant pled not guilty at his arraignment. 1 On May 6, 2019,
defendant filed a “Motion to Declare Louisiana’s 10-2 Verdict Unconstitutional”
that was denied on May 8, 2019. The case was subsequently tried before a 12-
person jury that found defendant guilty as charged on both counts on May 14,
2019. The verdicts were eleven to one on both counts.2 On May 17, 2019,
defendant filed a Motion for New Trial that was denied on May 29, 2019. The trial
court then sentenced defendant on count one to thirty years imprisonment at hard
labor “plus five years for the firearm, for a total of thirty-five years at hard labor,”
1
The State alleged in the bill of information that defendant was previously convicted of
possession of cocaine, a violation of “La. R.S. 40:697.C,” on April 22, 2013, under district court case
number 12-1362, Division “A,” of the 24th Judicial District Court. Although the bill of information
identifies the statute as “La. R.S. 40:697.C,” this seems to be an inconsequential typographical error, as
the crime of possession of cocaine is defined in La. R.S. 40:967(C).
On March 28, 2019, the State amended count two of the bill of information to add that defendant
was previously convicted of armed robbery, a violation of La. R.S. 14:64, on October 27, 1997, under
district court case number 97-3187, Division “B,” of the 24th Judicial District Court.
2
At trial, in reading the jury’s verdict, it was indicated that the verdict was eleven to one on both
counts. Defense counsel requested polling of the jury, and polling slips were passed out for the jurors to
complete. The trial judge then stated that there was a problem because the polling slips indicated that the
verdict was unanimous on count one. The trial judge suggested that perhaps the jury was confused about
the instructions and had the jury recomplete the polling slips after advising the jurors to indicate their
individual votes. Subsequently, the trial judge indicated that the second set of polling slips was consistent
with the verdict form. A review of the sealed polling slips indicates that the verdicts on both counts were
eleven to one.
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without the benefit of probation, parole, or suspension of sentence. It also
sentenced defendant on count two to twenty years imprisonment at hard labor
without the benefit of probation, parole, or suspension of sentence, and a one
thousand dollar fine. The sentences were ordered to run concurrently with each
other.
Immediately thereafter, the State filed a habitual offender bill of information
alleging that defendant was a third-felony offender. On June 13, 2019, defendant
filed a motion to quash the habitual offender bill, which was denied in open court
that day. Defendant was then adjudicated a third-felony offender on count one
(armed robbery). The trial court vacated its original sentence on count one and
resentenced defendant to fifty years imprisonment at hard labor “plus five years
pursuant to the statute for the firearm for a total of fifty-five years … without
probation, parole or suspension of sentence,” to run concurrently with the sentence
on count two. Lastly, on June 13, 2019, defendant filed a Motion to Reconsider
Sentence and a Motion for Appeal. The trial court denied the Motion to
Reconsider Sentence and granted the Motion for Appeal on June 17, 2019.
On appeal, defendant argues the following assignments of error, to wit:
1. The trial court erred in granting the State’s La. C.E. art. 404(B) motion
and allowing in evidence of other crimes.
2. The trial court erred in denying the motion for a new trial and finding the
evidence was sufficient to support the conviction for armed robbery and
felon in possession of a firearm.
3. The trial court erred in denying the motion for a new trial based on the
non-unanimous jury verdict in which the punishment is necessarily
confinement at hard labor.
FACTS
On the morning of May 24, 2018, Valencia Harding (the victim) was outside
of her daughter’s house at 142 Rencopas Court in Jefferson Parish when a man
(later alleged to be defendant, Aaron Harrell) approached her holding a black gun
and ordered her to give him her purse and money. She told her assailant that she
19-KA-371 2
did not have a purse or any money on her. The assailant then told her to hand over
her earrings, watch, and wedding rings.3 The assailant then ordered Valencia to
turn around, and when she did so, he ran away in the direction of Jefferson
Highway.4 Valencia called 9-1-1 and reported that the robber had a gun and that
he was male wearing a black hoodie and black sunglasses.
Officer Jonathan Eloie with the Jefferson Parish Sheriff’s Office responded
to the report of the armed robbery and went to 142 Rencopas Court. Valencia
reported to Officer Eloie that the robber was dressed in all black clothing with a
hoodie pulled over his head, wore sunglasses, and had a mustache, but was
otherwise clean-shaven.5 Upon additional questioning, Valencia added that her
assailant was dark complected and appeared to be the same height as the officer,
who was between 5’9” or 5’10”.6 She described the items that were taken from her
and that the assailant’s gun was similar to Officer Eloie’s service weapon, a black
semi-automatic Glock.
Sergeant Marc Macaluso, lead detective in this case, also spoke to Valencia
who again described the robbery and her assailant’s features. He detailed that at
that time, Valencia did not describe tattoos on the assailant’s face. However, he
provided that she may not have seen his facial tattoos because he concealed
himself with a hoodie and sunglasses. The area was canvassed, but no possible
suspects were found.7
3
Valencia described the jewelry as silver Michael Kors earrings and three silver weddings rings
“full of diamonds.” Valencia stated that the watch was a silver Michael Kors watch with rose gold on the
inside with bezels around it. Her belongings were never recovered.
4
Valencia testified that she did not want to give her jewelry to the assailant, but she was afraid he
would kill her. She denied, however, that he touched or grabbed her.
5
Officer Eloie denied that Valencia told him that defendant had tattoos on his face or neck, had
missing teeth, or that she recognized his voice.
When defendant was arrested, his height was noted as 5’5”. Valencia testified that she is 5’1”
6
and was wearing slippers when the armed robbery took place.
7
As Sergeant Macaluso further investigated, he found video surveillance footage at a motel and
store both located on Jefferson Highway that led to identifying three persons of interests; however, these
persons of interest were eventually eliminated.
19-KA-371 3
On June 12, 2018, Valencia was riding in a vehicle with her “God brother”
headed to Jefferson Highway on Central Avenue when she saw two men standing
outside of some apartments. She told her God brother that one of the men looked
like the robber. He told her that he knew him (defendant) from somewhere, but did
not know his name at the time. He then proceeded to make the block and stopped
the vehicle near the men. Defendant then came up to the vehicle, and Valencia’s
God brother asked if there were any vacant apartments in the building. Defendant
said he did not know because he lived down the street in some gray apartments. At
that time, Valencia was able to clearly see defendant, and she recognized him as
the robber due to the shape of his face, his mustache, and his height. She also
recognized his voice from the robbery. Valencia called 9-1-1 again, and she met
with the police and gave another description of defendant, who she believed was
her assailant.8 By that time, Valencia was able to give the police defendant’s first
name because her God brother had informed her of it. Sergeant Macaluso showed
Valencia a photographic lineup, and she readily identified defendant from the
lineup.9 Thereafter, an arrest warrant was issued for defendant on June 13, 2018.
At trial, Valencia also identified defendant in open court and responded positively
when asked if she was absolutely sure that defendant was the same person who
robbed her.
On the night of June 13, 2018, Officer Alexander Winks with the New
Orleans Police Department and his partner, Officer Michael Dewey, were on patrol
when he observed a man, later learned to be defendant, seated on the front porch of
8
At trial, Valencia testified that she could not recall the exact description she gave to each police
officer she spoke to. Specifically, she could not recall how tall she reported defendant was or at what
point she detailed that defendant had tattoos on his face. Nonetheless, she provided that she told police on
the day of the robbery that she would be able to recognize defendant if she saw him again, and she
recognized the person on Central Avenue as the robber.
9
Sergeant Macaluso asked Louisiana State Analytical Fusion Exchange to prepare the
photographic lineup, as he testified that the Fusion Exchange has a bigger pool to draw from to prepare a
lineup with distinct features, as defendant has tattoos on his face.
19-KA-371 4
an abandoned house. Officer Winks approached defendant, who provided an
identification card, and Officer Dewey ran a records check. In doing so, Officer
Dewey found the Jefferson Parish arrest warrant for defendant for the armed
robbery. Defendant was detained pending verification of the warrant. The officers
conducted a pat-down search of defendant for weapons and found unknown pills in
defendant’s hand while they were placing him in handcuffs. The pills were later
determined to be clonazepam (the generic form of Klonopin).
After defendant’s arrest, Sergeant Macaluso learned that defendant lived at
1312 Claiborne Drive, in Jefferson Parish.10 Sergeant Macaluso obtained a search
warrant for that address and upon arrival, spoke to Sonia Chisley. Sonia testified
at trial that she and defendant share a son, and she and defendant have had a
relationship on and off since 1995. Sonia was aware that in May 2018, defendant
was staying with “Wendel on Central.” She detailed that he was living with her on
Claiborne when she asked him to leave on May 21. Defendant was using drugs at
that time and had asked her many times for money. She testified that on that day,
he specifically had asked her for money to get heroin, and they got into an
argument. On June 9, 2018, defendant showed up at Sonia’s house. Defendant
told her that he had something for her and showed her a silver woman’s watch with
white diamonds in the middle with “Michael Krocks name written in the middle of
the watch.” Sonia told defendant she did not want the watch because she knew
defendant would want it back when he needed money for drugs. In court, Sonia
read a letter that defendant had written to her from jail, where he asked her why
she did not tell the police that he showed her a rose gold watch, instead of a silver
watch, as it was being used as evidence against him. Defendant nonetheless
maintained his innocence in the letter.
10
Sergeant Macaluso testified that 1312 Claiborne Drive is just over a half mile away from the
site of the robbery and one and a half miles from the area where defendant was arrested.
19-KA-371 5
Wendel Sigur testified that in May of 2018, he was using heroin and crack
cocaine daily and was living in an apartment on Central Avenue. Defendant, who
Wendel knew as “Dark Side,” lived in Wendel’s apartment with him, and they
would use drugs together daily. Wendel described that he met defendant while
they were “using” at a dope house. Defendant came to live at Wendel’s apartment
for approximately two months after defendant’s “wife” threw him out. Wendel
allowed defendant to stay there in exchange for defendant obtaining drugs for
himself and Wendel. Wendel detailed that defendant “had the connection” and
would go out to get the drugs; he did not know, however, how defendant obtained
money to pay for the drugs. He indicated that defendant did not have a job.
Wendel stated that defendant did not have a car and used his bicycle to get around.
Wendel denied ever seeing defendant with earrings, rings, or a watch like Valencia
had.
During one interview with the State prior to trial, Valencia told the Assistant
District Attorney that she recalled seeing defendant a few months before the
robbery occurred at Jefferson Elementary School when she picked up her great
niece. Defendant was picking up a little boy, and she and other parents noticed
him because his shirt was dirty, and he was wearing slippers. Defendant was also
on a bicycle at that time. Valencia knew the boy’s mother’s name was “Sonia.”11
The parties stipulated that if called to testify, Sergeant Joel O’Lear, an expert
in fingerprint examination, would testify that defendant is one and the same
individual previously convicted: 1) on April 22, 2013 of possession of cocaine; 2)
on October 27, 1997 of armed robbery; and 3) on June 13, 2018 of possession of
clonazepam.
11
Sonia confirmed that she knew Valencia’s family, and the son she shared with defendant went
to Jefferson Elementary in May 2018.
19-KA-371 6
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant argues that the trial court erred
in denying his motion for a new trial as the State presented insufficient evidence of
his identity as the armed robber.12 Defendant points to alleged omissions in
Valencia’s description of him, including his height and her failure to mention that
he had facial tattoos, had met him before, and that she recognized his voice. He
notes there was no corroborating evidence, as neither Valencia’s missing items nor
a weapon was ever found during the investigation. Therefore, her identification
alone is not sufficient proof beyond a reasonable doubt to convict him.
The State responds that when viewed in the light most favorable to the
prosecution, the evidence was sufficient to convince a rational trier of fact that
defendant was guilty of the charged crimes beyond a reasonable doubt. It submits
that it negated any reasonable probability of misidentification in order to carry its
burden of proof.
In reviewing sufficiency of the evidence, an appellate court must determine
that the evidence, whether direct or circumstantial, or a mixture of both, viewed in
the light most favorable to the prosecution, was sufficient to convince a rational
trier of fact that all of the elements of the crime have been proven beyond a
12
See State of Louisiana v. Gabriel O. Hunter, 19-901 (La. App. 4 Cir. 5/27/20), 2020 WL
2751914, where the Fourth Circuit addressed the defendant’s assigned error of insufficient evidence
before it addressed his assignment of error regarding the constitutionality of the non-unanimous verdict.
By way of explanation for addressing the issue of sufficiency, the Fourth Circuit stated:
See State v. Hearold, 603 So.2d 731, 734 (La. 1992) (observing that “[w]hen
issues are raised on appeal both as to the sufficiency of the evidence and as to one or
more trial errors, the reviewing court should first determine the sufficiency of the
evidence”). As the Louisiana Supreme Court has explained, “[t]he reason for reviewing
sufficiency first is that the accused may be entitled to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). Such an acquittal would
necessarily prevent any retrial. See State v. Gaines, 96-1850, p. 4 (La. App. 4 Cir.
1/29/97), 688 So.2d 679, 682 (observing that “[a]lthough [the defendant’s] conviction
must be reversed on other grounds, the issue of sufficiency of evidence must be
addressed” because “if there was insufficient evidence even in the face of an error so
prejudicial as to warrant a new trial, then there can be no new trial”). Thus, the Louisiana
Supreme Court has held that an appellate court’s failure to address the sufficiency of the
evidence, when raised, is error. See State v. Morris, 615 So.2d 327, 328 (La. 1993)
(observing that “the court of appeal erred in pretermitting relator’s contention that the
evidence was insufficient to prove the validity of [his] earlier convictions, which [were]
an essential element of the charged crime”).
19-KA-371 7
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566,
writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189.
When circumstantial evidence is used to prove the commission of the
offense, La. R.S. 15:438 provides, “assuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” The reviewing court is not required to determine
whether another possible hypothesis of innocence suggested by the defendant
offers an exculpatory explanation of events. Rather, the reviewing court must
determine whether the possible alternative hypothesis is sufficiently reasonable
that a rational trier of fact could not have found proof of guilt beyond a reasonable
doubt. Baham, 169 So.3d at 566.
It is not the function of the appellate court to assess credibility or reweigh
the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443. The
trier of fact shall evaluate credibility, and when faced with a conflict in testimony,
is free to accept or reject, in whole or in part, the testimony of any witness. State v.
Bradley, 03-384 (La. App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writs denied, 03-2745
(La. 2/13/04) 867 So.2d 688 and 08-1951 (La. 1/30/09), 999 So.2d 750.
In the present case, defendant was convicted of one count of armed robbery
with a firearm and one count of possession of a firearm by a convicted felon. In
challenging the sufficiency of the evidence, defendant does not contest the
sufficiency of the essential statutory elements; rather, he challenges his identity as
the perpetrator of the armed robbery and asserts that the State failed to negate any
reasonable probability of misidentification.13
13
Even though defendant only challenges one particular element, review of the record under State
v. Raymo, 419 So.2d 858, 861 (La. 1982), shows that the State presented sufficient evidence to establish
the remaining essential statutory elements of armed robbery with a firearm and possession of a firearm by
a convicted felon. Valencia testified that defendant was armed with a gun when he took her jewelry, and
19-KA-371 8
Encompassed within proving the elements of an offense is the necessity of
proving the identity of the defendant as the perpetrator. Where the key issue is
identification, the State is required to negate any reasonable probability of
misidentification in order to carry its burden of proof. State v. Ray, 12-684 (La.
App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124
So.3d 1096. A positive identification by only one witness is sufficient to support a
conviction. State v. Williams, 08-272 (La. App. 5 Cir. 12/16/08), 3 So.3d 526, 529,
writ denied, 09-0143 (La. 10/16/09), 19 So.3d 470. In the absence of internal
contradiction or irreconcilable conflict with physical evidence, one witness’s
testimony, if believed by the trier of fact, is sufficient to support a requisite factual
finding. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ
denied, 09-1305 (La. 2/5/10), 27 So.3d 297.
In State v. Cowart, 01-1178 (La. App. 5 Cir. 3/26/02), 815 So.2d 275, 284-
85, writ denied, 02-1457 (La. 5/9/03), 843 So.2d 387, there was no physical
evidence linking the defendant to the crime, and a single witness identified the
defendant as the perpetrator of a shooting. At trial, the reliability of the eyewitness
was attacked because the witness was a convicted felon, had been under
psychiatric care, had initially lied to the police, gave a description that did not
match the defendant, had perjured herself during motion hearings, and had changed
her story about the crime scene and the number of shots she heard. Despite this
lengthy list of deficiencies, this Court held that it was within the jury’s discretion
to believe the witness’s testimony.
Upon review, we find that the State presented sufficient evidence to negate
any reasonable probability of misidentification. In Valencia’s first description of
defendant in her 9-1-1 call immediately following the robbery, she did not state
her testimony was clear that she was intimidated. Also, the parties entered into a stipulation regarding
defendant’s three predicate felony convictions.
19-KA-371 9
that he had facial tattoos; however, she did describe that he was wearing a black
hoodie and black sunglasses, which would have impaired her ability to see his face
clearly. In her description to Officer Eloie, she described that defendant was dark
complected and had a moustache. When asked by Officer Eloie, she estimated that
defendant was approximately his same height. It was later developed that
defendant was several inches shorter; however, Valencia herself was 5’1” and did
notice that defendant was several inches taller than her. Several weeks later, when
Valencia saw defendant on the street, she had the opportunity to see him again and
at that time, noticed that he had tattoos on his face and recognized his voice.
Subsequently, Valencia contacted 9-1-1, and at that time, was able to immediately
select defendant from a photographic lineup. Later on in the investigation,
Valencia also realized that she had seen defendant at Jefferson Elementary School.
Any inconsistencies in Valencia’s testimony as to at what time she noticed
which physical markers were heard by the jury and ultimately appear to have been
rejected by the jury. Taking into consideration the entirety of her testimony, we
find that Valencia’s positive identification of defendant as the robber is sufficient
to support defendant’s conviction of armed robbery. See Williams, supra.Therefore, the trial court did not abuse its discretion in denying defendant’s motion
for a new trial on the verdict as being contrary to the law and evidence. This
assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, defendant argues that the trial court erred in
denying his motion for a new trial based on the non-unanimous jury verdict.14
14
It is noted that defendant did not raise the non-unanimous jury verdicts issue in his motion for a
new trial. Regardless, Louisiana courts have repeatedly held that the jury verdict is discoverable in the
pleadings and proceedings for purposes of errors patent review. See State v. Craddock, 307 So.2d 342(La. 1975); State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); State v. Anderson, 07-752 (La. App. 5
Cir. 2/6/08), 979 So.2d 566, 571.
19-KA-371 10
The penalty for a conviction of armed robbery is found in La. R.S. 14:64(B),
which provides that whoever commits the crime of armed robbery shall be
imprisoned at hard labor for not less than ten years and for not more than ninety-
nine years, without the benefit of parole, probation, or suspension of sentence. La.
R.S. 14:64.3(A) provides that when the dangerous weapon used in the commission
of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard
labor for an additional period of five years without the benefit of parole, probation,
or suspension of sentence. The additional penalty imposed pursuant to this
subsection shall be served consecutively to the sentence imposed under the
provisions of La. R.S. 14:64. La. R.S. 14:95.1(B) provides that whoever is found
guilty of violating the provisions of this section shall be imprisoned at hard labor
for not less than five nor more than twenty years without the benefit of probation,
parole, or suspension of sentence, and be fined not less than one thousand dollars
nor more than five thousand dollars. Since the punishments for these offenses are
necessarily confinement at hard labor, defendant had to be tried before a 12-person
jury. See La. Const. Art. I, § 17; La. C.Cr.P. art. 782.15
Non-unanimous jury verdicts were previously allowed under both La. Const.
Art. I, § 17 and La. C.Cr.P. art. 782, and the circumstances of the instant case.
However, in Ramos v. Louisiana, No. 18-5924, 590 U.S. ---, 140 S.Ct. 1390, ---
L.Ed.2d ---, (2020), 2020 WL 1906545, 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. The Court concluded:
There can be no question either that the Sixth Amendment’s
15
Both La. Const. Art. I, § 17 and La. C.Cr.P. art. 782(A) provide, in pertinent part, that a case
for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at
hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict, and
that a case for an offense committed on or after January 1, 2019, in which the punishment is necessarily
confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to
render a verdict.
19-KA-371 11
unanimity requirement applies to state and federal criminal trials
equally. This Court has long explained that the Sixth Amendment
right to a jury trial is “fundamental to the American scheme of justice”
and incorporated against the States under the Fourteenth Amendment.
This Court has long explained, too, that incorporated provisions of the
Bill of Rights bear the same content when asserted against States as
they do when asserted against the federal government. 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.
(Footnotes omitted.)
Id. at 1397.
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).
Based on Ramos and the fact that the instant case is on direct appeal,16 we
find that since the verdicts resulting from defendant’s jury trial were not
unanimous for these “serious offenses,” in compliance with the United States
Supreme Court’s directive in Ramos, defendant’s convictions and sentences are
vacated and the matter is remanded to the trial court for further proceedings
consistent with this opinion.17 Further, because defendant’s convictions and
sentences have been vacated, we pretermit any discussion of defendant’s remaining
assignment of error.
16
See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004),
observing that “[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule
applies to all criminal cases still pending on direct review,” citing Griffith v. Kentucky, 479 U.S. 314, 328,
107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear break’ with the past.”).
17
See State v. Myles, 19-0965 (La. App. 4 Cir. 4/29/20), --- So.3d ----, 2020 WL 2069885.
19-KA-371 12
CONCLUSION
For the foregoing reasons, defendant’s convictions and sentences are vacated
and the matter is remanded to the trial court for further proceedings consistent with
this opinion.
CONVICTIONS AND SENTENCES
VACATED; REMANDED
19-KA-371 13
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
JULY 8, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-371
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE L. BEEBE (APPELLANT)
GRANT L. WILLIS (APPELLEE)
MAILED
HONORABLE JEFFREY M. LANDRY AARON HARRELL #389319 (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
(APPELLEE) LOUISIANA STATE PENITENTIARY (APPELLEE)
ATTORNEY GENERAL ANGOLA, LA 70712 DISTRICT ATTORNEY
LOUISIANA DEPARTMENT OF JUSTICE TWENTY-FOURTH JUDICIAL DISTRICT
1885 NORTH 3RD STREET 200 DERBIGNY STREET
6TH FLOOR, LIVINGSTON BUILDING GRETNA, LA 70053
BATON ROUGE, LA 70802