State of Louisiana v. Antionette Fortune

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 ******

Chief Judge James F. McKay III ******

(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard)

LEON A. CANNIZARO, 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 THE STATE/APPELLEE

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

CONVICTION AND SENTENCE VACATED; REMANDED

NOVEMBER 18, 2020

JFM TFL Considering the per curiam provided by the district court after our remand, EAL and for the reasons set forth below, the defendant’s conviction and sentence is

vacated, and the matter is remanded for a new trial.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

On September 29, 2017, a jury found the defendant guilty of manslaughter.

The defendant appealed her conviction and sentence to this Court, arguing that the

non-unanimous jury verdict was unconstitutional.

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

determined in Ramos v. Louisiana, 590 U.S. ----, 140 S.Ct. 1390, 206 L.E.d.2d 583

(2020), that the Sixth Amendment right to a 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. As the defendant’s case was pending on

direct review, we applied the holding in Ramos. However, because it was unclear

from the record whether the jury verdict was, in fact, non-unanimous, we

remanded the matter to the district court for resolution of that issue. State v.

Fortune, 2019-0868 (La. App. 4 Cir. 8/12/20), ––– So.3d ––––, 2020 WL

4679040.

2

On remand, the district court issued a per curiam on September 17, 2020,

indicating that:

[a]lthough no formal polling of the jury was taken during the sentencing of this matter, and jury slips are not available as part of the record, this Court confirms the representations of both counsel for the defense and the prosecution as found in the sentencing transcript of this Court, that the jury returned a non-unanimous verdict of 10-2. As this matter remains on direct review, and the returned verdict for the serious offense the defendant was ultimately convicted of was non-unanimous, Ramos applies to this matter, and a Motion for New Trial should be granted.

DECREE

Considering the record before us and the per curiam opinion supplied by the

district court, representing that the jury verdict was non-unanimous, the

defendant’s conviction and sentence is vacated and the matter is remanded for a

new trial.

CONVICTION AND SENTENCE VACATED; REMANDED