State Of Louisiana v. Jaris Howard ( 2020 )


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  •                            STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    NO. 2020 KA 0425
    STATE OF LOUISIANA
    VERSUS
    JARIS HOWARD
    2_2D2_0·_
    Judgment Rendered: _D_E_C_2_
    *****
    On Appeal from the
    23rd Judicial District Court
    In and for the Parish of Ascension
    State of Louisiana
    Trial Court No. 33,217
    Honorable Alvin Turner Jr., Judge Presiding
    *****
    Ricky L. Babin                              Attorneys for Appellee,
    District Attorney                           State of Louisiana
    Donaldsonville, LA
    Donald D. Candell
    Lindsey D. Manda
    Shawn R. Bush
    Kenneth J. Dupaty
    Assistant District Attorneys
    Gonzales, LA
    Katherine M. Franks                         Attorney for Defendant-Appellant,
    Louisiana Appellate Project                 J aris Howard
    Madisonville, LA
    *****
    BEFORE: McDONALD, HIGGINBOTHAM, AND PENZATO, JJ.
    HIGGINBOTHAM, J.
    The defendant, Jaris Howard, was charged by grand jury indictment with
    second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. 1 After a
    trial, the defendant was found guilty by a non-unanimous jury of the responsive
    offense of manslaughter, a violation of La. R.S. 14:31. The trial court sentenced the
    defendant to forty years imprisonment at hard labor. The defendant now appeals,
    alleging in his sole assignment of error that the trial court erred in accepting the non-
    unanimous, unconstitutional verdict as legal.
    Initially, we note that the defendant did not object to the verdict, nor did he
    challenge the constitutionality of the verdict in the trial court below. However, the
    Louisiana Supreme Court recently mandated that in cases where "the non-
    unanimous jury claim was not preserved for review in the trial court ... , the court of
    appeal should nonetheless consider the issue as part of its error patent review." State
    v. Cagier, 2018-02015 (La. 6/3/20), 
    296 So.3d 1017
    , 1018. (per curiam). Pursuant
    to La. Code Crim. P. art. 920(2), in conducting a patent error review, this court shall
    consider "[a]n error that is discoverable by a mere inspection of the pleadings and
    proceedings and without inspection of the evidence."
    In the recent decision of Ramos v. Louisiana, 590 U.S._, 
    140 S.Ct. 1390
    ,
    1397, 
    206 L.Ed.2d 583
     (2020), the United States Supreme Court overruled Apodaca
    v. Oregon,2 
    406 U.S. 404
    , 
    92 S.Ct. 1628
    , 
    32 L.Ed.2d 184
     (1972), and held that the
    right to a jury trial under the Sixth Amendment of the United States Constitution,
    1
    The indictment also charged the defendant with being a convicted felon in possession of a firearm
    or carrying a concealed weapon, a violation of La. R.S. 14:95.1, on count two. However, the
    record reflects that ultimately the jury was instructed to reach a verdict only on count one, the
    second-degree murder charge in this case. During the pendency of this appeal, this court contacted
    the district court Clerk of Court's office regarding the disposition of count two. In response, the
    deputy clerk of court informed this court that after a complete examination of their records and
    conferring with the assistant district attorney who prosecuted this case, the clerk of court certifies
    that there is no disposition of count two.
    2
    Oregon's non-unanimous jury verdict provision of its state constitution was challenged in
    Apodaca. Johnson v. Louisiana, 
    406 U.S. 356
    , 
    92 S.Ct. 1620
    , 
    32 L.Ed.2d 152
     (1972), decided
    with Apodaca, upheld Louisiana's then-existing constitutional and statutory provisions allowing
    nine-to-three jury verdicts in criminal cases.
    2
    incorporated against the States by way of the Fourteenth Amendment of the United
    States Constitution, requires a unanimous verdict to convict a defendant of a serious
    offense. The Ramos Court further noted that its ruling applied to those defendants
    convicted of felonies by non-unanimous verdicts whose cases are still pending on
    direct appeal. Ramos, 
    140 S.Ct. at 1406
    .
    In the instant case, the minutes and the written polling of the jury reveal that
    ten of the twelve jurors concurred to render the verdict. The non-unanimous jury
    verdict rendered in this case constitutes error patent on the face of the record.
    Accordingly, the defendant's conviction and sentence are vacated, and this case is
    remanded to the district court. 3
    CONVICTION AND SENTENCE VACATED; REMANDED.
    3
    We note that the State filed a brief in this matter in which it acknowledged that the defendant is
    on direct appeal of a non-unanimous jury verdict but points out that the issue was not preserved
    below. Citing Justice Alito's concurrence in Sheppard v. Louisiana,_ U.S. _ , 
    140 S.Ct. 2712
    , 
    206 L.Ed.2d 850
     (2020), the State asserts that this court is mandated to remand the case to
    the trial court to determine the issue of preservation. However, as noted above, for cases pending
    on direct review when Ramos was decided, the Louisiana Supreme Court has mandated that
    appellate courts consider the constitutionality of the verdict on patent error review, whether or not
    the issue was preserved in the trial court. Cagier, 296 So.3d at 1018; State v. Curry, 2019-01723
    (La. 6/3/20), 
    296 So.3d 1030
     (per curiam). Further, in Sheppard, consistent with the Louisiana
    Supreme Court, the United States Supreme Court remanded the case to this appellate court for
    further consideration in light of Ramos. Finally, we note that a well-recognized exception to the
    rule requiring preservation in the trial court, applicable in this case as discussed herein, is when a
    statute has been declared unconstitutional in another case. Unwired Telecom Corp. v. Parish of
    Calcasieu, 2003-0732 (La. 1/19/05), 
    903 So.2d 392
    , 399 n.5 (on rehearing); Spooner v. E. Baton
    Rouge Par. Sheriff Dep't, 2001-2663 (La. App. 1st Cir. 1118/02), 
    835 So.2d 709
    , 711; and State
    v. Smith, 2009-100 (La. App. 5th Cir. 8/25/09), 
    20 So.3d 501
    , 505, writ denied, 2009-2102 (La.
    415110), 
    31 So.3d 357
    . In accordance with the above, there is no need or mandate that this court
    remand this case to the trial court to determine the issue of preservation prior to this court deciding
    the constitutionality of the defendant's conviction in light of Ramos.
    3
    

Document Info

Docket Number: 2020KA0425

Filed Date: 12/22/2020

Precedential Status: Precedential

Modified Date: 10/22/2024