State Of Louisiana v. Robert George Garner, Jr.

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0471
STATE OF LOUISIANA
VERSUS
ROBERT GEORGE GARNER JR.
Decision Rendered: NOV 1 5 2019
APPEALED FROM THE 22nd JUDICIAL DISTRICT COURT
ST. TAMMANY PARISH, LOUISIANA
DOCKET NUMBER 603, 627, DIVISION D
HONORABLE PETER J. GARCIA, JUDGE
Warren L. Montgomery Attorneys for Appellee
District Attorney State of Louisiana
and
Matthew Caplan
Assistant District Attorney
Covington, Louisiana
Bertha M. Hillman Attorney for Defendant/ Appellant
Louisiana Appellate Project Robert George Garner Jr.
Covington, Louisiana
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDONALD, J.
The State charged the defendant, Robert George Garner, Jr., by bill of information
with domestic abuse battery by strangulation, a violation of La. R. S. 14: 35. 3L. The
defendant pled not guilty and, following a jury trial, was found guilty as charged. The
State filed a habitual offender bill of information.' The district court adjudicated the
defendant a third -felony habitual offender and sentenced him to five years imprisonment
at hard labor, without benefit of probation or suspension of sentence. The defendant now
appeals, designating one assignment of error. We affirm the conviction, habitual offender
adjudication, and sentence.
FACTS
On May 13, 2018, Erin Garetto and her boyfriend, the defendant, were at their
home in Folsom. According to Ms. Garetto, they were sitting on their bed, and the
defendant was complaining about her. The defendant then hit Ms. Garetto in the head,
causing her to fall back on the bed, with her head hanging over the side of the bed. The
defendant began choking Ms. Garetto with both hands, and she could not breathe. When
the defendant stopped choking her, she ran to the laundry room to call 911. The
defendant followed her, grabbed her phone, threw it, and `` stomped all over it." Later that
day, Ms. Garetto picked up her son from work and told him that it was ""over" between her
and the defendant. When they got home, the defendant took Ms. Garetto' s car keys from
her. Ms. Garetto' s son called his father, who called the police. Ms. Garetto got her keys
back and drove to Main' s Market in Folsom to meet with the police. The defendant was
arrested later that day.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the district court erred in
accepting a non -unanimous jury verdict, that is, that 11 of 12 jurors voted to convict him.
The defendant argues that a unanimous verdict is required under the Sixth Amendment.
Specifically, the defendant contends that La. Const. art. I, § 17A and La. C. Cr. P. art. 782A,
1 The defendant has prior felony convictions for illegal use of a weapon and aggravated burglary ( by
battery).
PA
providing for non -unanimous jury verdicts for offenses necessarily punishable at hard labor
that were committed before January 1, 2019, violate the Equal Protection Clause of the
United States Constitution' s Fourteenth Amendment.z
DISCUSSION
It is well- settled that an appellate court may not consider a constitutional challenge
unless it was properly pleaded and raised in the district court below. A party must raise
the unconstitutionality in the district court, must specially plead unconstitutionality, and
must particularize the grounds outlining the basis of unconstitutionality. State v, Hatton,
07- 2377 ( La. 7/ 1/ 08), 985 So. 2d 7091 718- 19. In this case, the defendant failed to raise
his challenge to La. Const. art. I, § 17A and La. C. Cr. P. art. 782A in the district court.
Accordingly, the issue is not properly before this court. See State v. Talley, 18- 1300 ( La.
App. 1 Cir. 5/ 9/ 19), 277 So. 3d 397, 408.
Moreover, we note that La. Const. art. I, § 17A and La. C. Cr. P. art. 782A provide
that, in cases where punishment is necessarily at hard labor and the offense was
committed before January 1, 2019, the matter shall be tried by a jury composed of twelve
jurors, ten of whom must concur to render a verdict. Under both state and federal
jurisprudence, a criminal conviction by a less than unanimous jury does not violate a
defendant's right to trial by jury specified by the Sixth Amendment and made applicable to
the states by the Fourteenth Amendment. See Apodaca v. Oregon,3 406 U. S. 404, 92
S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972); State v, Be/pard, 410 So. 2d 720, 726 ( La. 1982); State
v. Shanks, 97- 1885 ( La. App. 1 Cir. 6/ 29/ 98), 715 So. 2d 157, 164- 65. See also State v.
Smith, 06- 0820 ( La. App. 1 Cir. 12/ 28/ 06), 952 So. 2d 1, 15- 16; State v. Caples, 05- 2517
La. App. 1 Cir. 6/ 9/ 06), 938 So. 2d 147, 156- 57.
z We recognize that State v. Ramos, 16- 1199 ( La. App. 4 Cir. 11/ 2/ 17), 231 So. 3d 44, writs denied, 17- 2133
La. 6/ 15/ 18), 257 So. 3d 679, 17- 1177 ( La. 10/ 15/ 18), 253 So. 3d 1300, cert. granted, 139 S. Ct. 1318, 203
L. Ed. 2d 563 ( 2019), is currently before the United States Supreme Court, which may address the issue of
whether the Sixth Amendment' s unanimous jury verdict requirement applies to the states through
application of the Fourteenth Amendment. However, as stated by the Louisiana Supreme Court in State v.
Bertrand, 08- 2215 ( La. 3/ 17/ 09), 6 So. 3d 738, 743, under current jurisprudence from the U. S. Supreme
Court, non -unanimous twelve -person jury verdicts are constitutional. As an intermediate court, we are
bound by that precedent. State v. Curry, 18- 1764 ( La. App. 1 Cir. 9/ 27/ 19), _ So. 3d 2019 WL
4729508 * 8, n. 5.
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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.
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In State v. Bertrand, 08- 2215 ( La. 3/ 17/ 09), 6 So. 3d 738, 743, the Louisiana
Supreme Court found that a non -unanimous twelve -person jury verdict is constitutional
and that La. C. Cr. P. art. 782 does not violate the Fifth, Sixth, and Fourteenth
Amendments. Thus, while Apodaca was a plurality rather than a majority decision, the
United States Supreme Court, as well as other courts, have cited or discussed the opinion
various times since its issuance and, on each of these occasions, it is apparent that its
holding as to non -unanimous jury verdicts represents well- settled law. Bertrand, 6 So. 3d
at 742- 43. Thus, La. Const. art. I, § 17A and La. C. Cr. P. art. 782A are not unconstitutional
and, therefore, not in violation of the defendant's constitutional rights. State v.
Hammond, 12- 1559 ( La. App. 1 Cir. 3/ 25/ 13), 115 So. 3d 513, 514- 15, writ denied, 13-
0887 ( La. 11/ 8/ 13), 125 So. 3d 442, cert. denied, 572 U. S. 1090, 134 S. Ct. 1939, 188
L. Ed. 2d 965 ( 2014). See Talley, 277 So. 3d at 408, n. 6. The defendant' s assignment of
error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE
AFFIRMED.
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