State of Louisiana v. Antionette Fortune

• Court: Louisiana Court of Appeal
• Decided: August 12, 2020
• Docket: 2019-KA-0868
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2019-KA-0868

VERSUS * COURT OF APPEAL ANTIONETTE FORTUNE * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 510-610, SECTION “J” HONORABLE DONALD T JOHNSON, JUDGE, AD HOC ****** JAMES F. MCKAY CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard)

LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH DONNA R. ANDRIEU CHIEF OF APPEALS IRENA ZAJICKOVA ASSISTANT DISTRICT ATTORNEY 619 South White Street New Orleans, Louisiana 70119 COUNSEL FOR STATE/APPELLEE

RACHEL I. CONNER 3015 Magazine Street New Orleans, Louisiana 70115 COUNSEL FOR DEFENDANT/APPELLANT

REMANDED WITH INSTRUCTIONS

AUGUST 12, 2020 JFM TFL EAL

The defendant appeals her conviction and sentence for manslaughter,

arguing that the non-unanimous jury verdict violates the Sixth and Fourteen

Amendments of the United States Constitution. For the reasons set forth below,

the matter is remanded to the district court for the purpose of confirming that the

verdict was, in fact, non-unanimous.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 23, 2012, the Orleans Parish grand jury returned an indictment

charging the defendant with second-degree murder of Brandon Butler. On

September 29, 2017, the jury found the defendant guilty of the lesser charge of

manslaughter1, in what appears to be a 10-2 verdict.

On November 3, 2017, the defendant filed a motion for new trial, which was

denied. The defendant also filed a written objection to the non-unanimous jury

verdict. The trial court noted the objection and sentenced the defendant to twenty-

five years in prison without the benefit of probation, parole, or suspension of

sentence. The defendant filed this appeal arguing that his conviction by a non-

unanimous jury is unconstitutional.

1 The underlying facts of this case are not relevant to the limited issue raised in this appeal.

1 Following the defendant’s conviction, the United States Supreme Court

determined in Ramos v. Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d

583 (2020), that the Sixth Amendment right to jury trial, as incorporated against

the States by way of the Fourteenth Amendment, requires a unanimous verdict to

convict a defendant of a serious offense. Because the defendant’s case is pending

on direct review, the Supreme Court’s decision in Ramos applies here.

The record before us is unclear. No polling of the jury took place when the

verdict was rendered and the minute entry does not reflect the verdict count. The

sentencing transcript reveals that both the prosecutor and the defense counsel

acknowledged that the guilty verdict for manslaughter was 10-2. However, the

prosecutor indicated that the two dissenting votes were in support of a guilty as

charged verdict of second-degree murder as opposed to votes in support of not

guilty.

In its brief to this Court, the state concedes that if, in fact, a non-unanimous

jury convicted the defendant, her argument on appeal appears to have merit. To

confirm whether the verdict was non-unanimous, the state requests that this Court

order the record to be supplemented with the jury polling slips. However, as noted

above, there was no polling of the jury. The only evidence presented of the 10-2

verdict were the representations by the defense counsel and the prosecutor at

sentencing.

In State v. Norman, 2020-0109 (La. 7/2/20), ___ So.3d ___, 2020 WL

3603925 (per curiam), the Louisiana Supreme Court was faced with a similar

situation in that the polling of jurors did not make clear that the verdict was non-

unanimous. Specifically, the Court noted that “the district court ceased polling the

jury after the first ten jurors.” Id. To determine whether that verdict was, in fact,

2 unanimous, the Court remanded the matter, ordering that the court “shall provide a

per curiam to this Court within ten days of ruling on the Ramos issue and stating

the outcome. If the trial court denies relief under Ramos, defendant can appeal

separately on that basis. The remainder of the defendant’s claims will be

considered by this Court once the Ramos issue is resolved.” Id.

Rather than ordering the record to be supplemented with the jury polling

slips, as urged by the state, we find that the better course of action is to follow the

Louisiana Supreme Court’s lead in Norman, and remand the matter to the district

court

DECREE

For the foregoing reasons, we remand this matter to the district court with

instructions to review the record for the purpose of confirming whether the verdict

was, in fact, non-unanimous. Once confirmed, the district court shall provide this

Court with a per curiam within ten days of this ruling, addressing the Ramos issue

and stating the outcome of its review.