Jv STATE OF LOUISIANA SRL . 31C t.) 17 COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0023
STATE OF LOUISIANA
VERSUS
CARL THOMPSON, II
Judgment Rendered: ' APR 16 2021
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 02- 17- 0727
Honorable Richard D. Anderson, Judge Presiding
Hiilar C. Moore, III Counsel for Appellee,
Cristopher J.M. Casler State of Louisiana Baton Rouge, LA
Cynthia Meyer Counsel for Defendant/Appellant, New Orleans, LA Carl Thompson, II
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ. WHIPPLE, C. J.
Defendant, Carl Thompson, II, was charged by bill of information with
attempted second degree murder, a violation of LSA-R.S. 14: 27 and LSA-R. S.
14: 30. 1. He pled not guilty. After a trial by jury, defendant was found guilty as
charged. The trial court imposed a sentence of forty-five years imprisonment at
hard labor, to be served without the benefit of probation, parole, or suspension of
sentence. Defendant now appeals. For the following reasons, we affirm the
conviction and sentence.
FACTS
On the morning of February 22, 2017, defendant was at the home of the
victim, Angela Gabriel. Gabriel is the mother of defendant' s two sons, and had
been in a relationship with defendant for several years. Their youngest son had
recently returned from an emergency room visit for bronchitis, and defendant was
assisting Gabriel in caring for him. Defendant and Gabriel began to argue over
how to care for the child. Because Gabriel had a meeting later that morning, she
entered the bathroom to take a bath.
Gabriel testified that after hearing defendant say, " I just wish you would shut
up, just shut up sometimes[,]" defendant shot her several times while she was in
the bathtub. Defendant left the bathroom, came back in with a cell phone, and told
Gabriel, " look what you made me do, Angie." Gabriel asked him to dial 911,
which defendant did. Otherwise, Gabriel did not recall defendant making any
attempt to help her, except as she directed. Defendant let the water out of the
bathtub when asked by Gabriel. Emergency personnel eventually arrived and took
Gabriel to the emergency room, where she was treated for several gunshot wounds
to the shoulder, chest, and back. Six bullet casings were recovered from the crime
scene. The firearm used in the shooting was registered to defendant. DNA testing
of a swab from the firearm revealed defendant could not be excluded as a major
2 contributor of DNA found on the gun. The shooting left Gabriel partially
paralyzed.
Defendant testified at trial. . Defendant explained that he is a diabetic, and at
the time of the shooting, he had only recently begun taking insulin again. He also
explained that he and Gabriel did not live together, but that he was at her residence
with a gun that day because his eight-year- old son had asked him to be there. He
testified that he and Gabriel had an argument that morning, which became
increasingly heated. Defendant testified, "[ a] nd in a flash -- I don' t even remember
picking that gun up -- I went from standing there looking down at the gun to in the
doorway squeezing." Defendant testified he kept pulling the trigger until it was
going click, click, click." Soon thereafter, he " snapped out of it[,]" realized what
he had done, and began to repeatedly apologize to Gabriel. Defendant explained
that following the call to 911, he left the house because as a trained fireman, he
knew police would not enter the house if he was still inside when they arrived.
After walking out of the house, he was arrested by responding officers. Defendant
explained Gabriel' s screaming " was just something [ he] couldn' t handle[,]" and
that he " wanted the screaming to stop."
On cross- examination, defendant claimed he rendered aid to Gabriel, but he
responded, " I don' t guess. I don' t know," when it was stated that he did not have
any blood on his hands or clothes. He also acknowledged that although he had
medication, he had not taken any on the day of the shooting. Defendant explained
that he did not remember seeing Gabriel in the tub, " because [ he] physically just
saw a white cloud" when he began shooting.
3 DISCUSSION
Assignment of Error Number One Defective Jury Venire
In his first assignment of error, defendant argues he was denied due process
where the jury venire in East Baton Rouge Parish was defectively constituted.
Citing the Louisiana Supreme Court' s recent decision in State v. Cannon, 2019-
590 ( La. 4/ 18/ 19), 267 So. 3d 585 ( per curiam), defendant argues his jury venire
was made deficient by the same process and was not a fair cross- section of the
community, where those born after June 2, 1993, were excluded from the jury
pool. Consequently, defendant seeks to have his conviction vacated, and the case
remanded for a new trial before a jury selected from a new, properly constituted
venire. The State notes defendant failed to file a motion to quash before trial, thus
waiving the issue.
The Louisiana Supreme Court held in Cannon, 267 So. 3d at 585- 586:
Defendant has shown that, under the system employed in East Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on the jury, were never given an opportunity to serve, because their names were excluded from the general venire as a result of a significant error in the process by which the general venire was composed. That exclusion resulted in a general venire that was improperly constituted under Code of Criminal Procedure articles 401 et seq. and Louisiana Constitutional Articles I, § 3 (" No person shall be denied the equal protection of the laws.") and V, § 33 (" A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled."). Accordingly, we grant defendant' s application to reverse the rulings of the courts and below, grant defendant' s motion to quash the general venire, remand to the district court for further proceedings so that a petit jury can be chosen from a general venire that is selected according to law. See State v. Jacko, 444 So. 2d 1185 ( La. 1984); State v. Procell, 332 So. 2d 814 ( La. 1976).
There is little question defendant' s jury was assembled from the same venire
the Louisiana Supreme Court found defective in Cannon; however, in State v.
2018 WL 1007350, at * 4, Smith, 201.7- 1333 ( La. App. 1st Cir. 2/ 21/ 18),
4 unpublished), writ denied, 2018- 0405 ( La. 2/ 18/ 19), 265 So. 3d 771, this court
noted:
The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. C. Cr.P. art. 532( 9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C. Cr.P. arts. 521, 532( 9), and 535( C); see also State v. Pooler, 96-- 1794 ( La. App. 1st Cir. 5/ 9/ 97), 696 So. 2d 22, 39, writ denied, 97- 1470 ( La. 11/ 14/ 97), 703 So. 2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire' s composition. Any grounds for that potential motion were waived. See La. C. Cr.P. art. 535( D).
Herein, defendant did not file such a pretrial motion to quash or raise the
issue before voir dire began, and did not raise the issue until the instant appeal.
See generally LSA-C. Cr.P. art. 841; State v. Thibodeaux, 2016- 0994 ( La.
10/ 27/ 17), 227 So. 3d 811, 812 ( per curiam) ( citing Segura v. Frank, 93- 1271, 93-
1401 ( La. 1/ 14/ 94), 630 So. 2d 714, 725, cert. denied sub nom., Allstate Insurance
Co. v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S. Ct. 2165,
128 L. Ed. 2d 887 ( 1994)). Accordingly, defendant' s claim of a defective jury
venire is not properly before the court and is denied as waived. See State v.
Thomas, 2019- 0409 ( La. App. 1st Cir. 10/ 25/ 19), 289 So. 3d 1030, 1044, writ
granted inamort and remanded on otherrounds, 2019- 01819 ( La. 6/ 22/ 20), 297 So.
3d 727 ( per curiam). 1
Assignment of Error Number Two Ineffective Assistance of Counsel
In his second assignment of error, defendant contends he received
ineffective assistance of counsel, where counsel failed to request the jury be polled
as to its verdict. Defendant cites the recent United States Supreme Court' s
decision in Ramos v. Louisiana, 590 U. S. , 140 S. Ct. 1390, 206 L. Ed. 2d 583
See also State v. Germany, 2020- 00878 ( La. 11/ 4/ 20), 303 So. 3d 631, 632 ( per curiam), 1clourts have found that various age spans of young persons are not distinctive groups for purposes of a fair cross- section analysis.").
5 2020), where the Court found Louisiana' s non -unanimous jury verdict
requirement to be unconstitutional. However, because counsel did not poll the jury
and its verdict was otherwise unrecorded, defendant is precluded from raising the
issue on appeal, even on error patent review. The State argues that the underlying
claim was waived by trial counsel' s failure to make a contemporaneous objection
or raise the issue below, and that defendant provides nothing to suggest the jury' s
verdict was anything but unanimous.'- Consequently, the State asserts defendant
fails to show the prejudice required to succeed in an ineffectiveness claim.
As a general rule, a claim of ineffective assistance of counsel is more
properly raised in an application for post -conviction relief in the district court
rather than on appeal. This is because post -conviction relief provides the
opportunity for a full evidentiary hearing under LSA-C. Cr.P. art. 930. See State v.
Miller, 2015- 1031 ( La. App. 1st Cir. 12/ 23/ 15), 185 So. 3d 811, 815, writ denied,
2016- 0152 ( La. 1/ 23/ 17), 215 So. 3d 681. However, when the record is sufficient,
as here, this court may resolve this issue on direct appeal. State v. Patton, 2010-
1841 ( La. App. lst Cir. 6/ 10/ 11), 68 So. 3d 1209, 1217.
A claim of ineffectiveness of counsel is analyzed under the two- pronged test
developed by the United States Supreme Court in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). In order to establish that his
trial attorney was ineffective, defendant must first show that the attorney' s
performance was deficient, which requires a showing that counsel made errors so
serious that he was not functioning as counsel guaranteed by the Sixth
Amendment. Secondly, defendant must prove that the deficient performance
Regardless whether defendant waived the underlying claim on direct review, it is impossible to detennine from the record if the jury' s verdict was unanimous. Counsel' s failure to poll the jury is clear. In any event, the underlying issue would not properly be before this court absent error patent review. State v. Amato, 96- 0606 ( La. App. Ist Cir. 6/ 30/ 97), 698 So.
2d 972, 988, writs denied, 97- 2626, 97- 2644 ( La. 2/ 20/ 98), 709 So. 2d 772 ( where defendant failed to make a contemporaneous objection to the polling procedure, he cannot raise this issue for the first time on appeal).
M$ prejudiced the defense. This element requires a showing that the errors were so
serious that defendant was deprived of a fair trial; defendant must prove actual
prejudice before relief will be granted. It is not sufficient for defendant to show
that the error had some conceivable effect on the outcome of the proceeding.
Rather, he must show that but for the counsel' s unprofessional errors, there is a
reasonable probability the outcome of the trial would have been different. Further,
it is unnecessary to address the issues of both counsel' s performance and prejudice
to defendant if defendant makes an inadequate showing on one of the components.
State v. Eason, 2019- 0614 ( La. App. 1 st Cir. 12/ 27/ 19), 293 So. 3d 61, 73.
This court has addressed the issue of jury polling relating to a non -
unanimous jury, but at the time it was merely speculative. In State v. Day, 2017-
1455 ( La. App. 1st Cir. 6/ 21/ 18), 253 So. 3d 173, 184- 185, writ denied, 2018- 1228
La. 4/ 15/ 19), 267 So. 3d 1126, we found a claim of such ineffectiveness as not yet
ripe for review and would only become so " if the legislature changed [ LSA-
C. Cr.P. art. 782( A)] to require unanimous verdicts and made the new law
retroactive." State v. Day, 253 So. 3d at 185 ( emphasis in original). Some time
later, the Louisiana Second Circuit Court of Appeal addressed a similar claim. In
State v. Copeland, 52, 742 ( La. App. 2nd Cir. 9/ 25/ 19), 280 So. 3d 848, 866- 867,
the Second Circuit Court found counsel was not ineffective for failing to poll the
jury where the " law does not require jury polling in criminal cases," citing LSA-
C. Cr.P. art. 812. That court recognized the then -recent amendment to the
Louisiana Constitution requiring unanimity for cases resulting in hard labor
sentences, but pointed out that the amendment applied only to offenses committed
on or after January 1, 2019. As the defendant' s offense in that case was committed
well before that date, the court held the unanimous jury verdict law did not apply
7 in that specific case.3 State v.Copeland, 280 So. 3d at 867. Thus, counsel was not
ineffective for failing to take actions based on a legal framework not in effect
either at the time of the offense or trial.
The same underlying rationale can be applied here. Defendant was found
guilty on August 8, 2018, but certiorari was not granted in Ramos until March 18,
2019.4 The instant situation was contemplated by Justice Kavanaugh in his
concurrence in Ramos, when he wrote:
In addition, as to ineffective -assistance -of c-ounsel claims, an attorney presumably would not have been deficient for failing to raise a constitutional jury -unanimity argument before today' s decision -- or at the very least, before the Court granted certiorari in this case. Before today, after all, this Court' s precedents had repeatedly allowed non - unanimous juries in state criminal cases.
Ramos v. Louisiana, 140 S. Ct. at 1420. We agree. It is difficult to contemplate a
finding of ineffectiveness where the jurisprudence of jury non -unanimity had not once been successfully challenged in Louisiana and had been repeatedly upheld by the courts of Louisiana and the United States Supreme Court through State v.
Bertrand, 2008- 2215, 2008- 2311 ( La. 3/ 17/ 09), 6 So. 3d 738, 742 ( LSA-C. Cr.P.
art. 782( A) is not unconstitutional and therefore not violative of defendant' s
constitutional rights) and Johnson v. Louisiana, 406 U. S. 356, 363, 92 S. Ct. 1620,
1625, 32 L. Ed. 2d 152 ( 1972), respectively. Cf. State v. Dressner, 2018- 0828 ( La.
10/ 29/ 18), 255 So. 3d 537, 544 ( per curiam), cert. denied sub nom., Dresser v.
Louisiana, U.S. , 139 S. Ct. 2691, 204 L. Ed. 2d 1093 ( 2019) ( citin. State
v. Kenner, 336 So. 2d 824, 831 ( La. 1976) ( counsel does not err in not undertaking
futile steps)); State v. Williams, 613 So. 2d 252, 256-257 ( La. App. lst Cir. 1992)
When the substantive issue that an attorney has not raised has no merit, then the
claim [ that] the attorney was ineffective for failing to raise the issue also has no
3I contrast, the later -decided Ramos decision retroactively applied the unanimity Ramos v. requirement to cases not yet final on appeal, as is the posture of the instant case. Louisiana, 140 S. Ct. at 1406. 4The legislative act establishing the present version of LSA-C.Cr.P. art. 782( A) was passed on May 23, 2018. See 2018 La. Acts No. 493, § I ( ef£ Jan. 1, 2019).
8 merit."); see also Lgymon v. State, 280 Kan. 430, 439- 440, 122 P. 3d 326, 333
2005) ( although failure of direct appeal counsel to raise a particular issue on
appeal is not, per se, ineffective assistance of counsel, a lawyer' s failure to foresee
a change in the law may lead to post -conviction relief if the failure was not
objectively reasonable); but seegeneState v. Crehan, 2018- 0746 ( La. App. 1st
Cir. 11/ 5/ 18), 2018 WL 5785479, at * 10- 11 ( unpublished) ( Guidry, J., concurring
in the result), writ denied, 2018- 2024 ( La. 4/ 15/ 19), 267 So. 3d 1124, cert. anted,
Judgment vacated, U.S. , 140 S. Ct. 2713, 206 L. Ed. 2d 850 ( 2020).
Moreover, there is nothing else in Louisiana jurisprudence that would suggest any
failure to poll the jury, without more, constitutes ineffectiveness despite the ever-
present possibility a jury returned a structurally deficient verdict that would not be
revealed absent polling. See State v. Moore, 48, 769 ( La. App. 2nd Cir. 2/ 26/ 14),
134 So. 3d 1265, 1275 n. 14, writ denied, 2014- 0559 ( La. 10/ 24/ 14), 151 So. 3d
598 ( defense counsel' s failure to request the jury be polled did not prejudice
defendant, and thus could not amount to ineffective assistance; there was no
indication in the record that the jury' s verdict was not proper); see also State v.
Bradley, 53, 550 ( La. App. 2nd Cir. 11/ 18/ 20), 307 So 3d 369, 374.
Because defendant does not demonstrate that counsel' s performance was
deficient, we need not address the second Strickland prong. See State v. Easton,
293 So. 3d at 73.
This claim is also without merit.
Assignment of Error Number Three Excessive Sentence
In his final assignment of error, defendant argues a forty-five year sentence
imposed on someone in his late forties is essentially a life sentence. Defendant
asserts that although he does not dispute the harm caused by his actions, the
sentence is constitutionally excessive. The State contends defendant' s sentence is
0 within the statutory range and is supported by the record and pre -sentence
investigation. Specifically, the State notes that the " violent nature of the attack and
the seriousness of the injuries suffered by the victim" support the trial court' s
discretion in sentencing defendant as it did.
The Eighth Amendment to the United States Constitution and Article I, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment. Although a sentence falls within statutory limits, it may be excessive.
State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979); State v. James, 2016- 1250
La. App. 1st Cir. 2/ 17/ 17), 215 So. 3d 269, 271. A sentence is considered
constitutionally excessive if it is grossly disproportionate to the seriousness of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is considered grossly disproportionate if, when the crime
and punishment are considered in light of the harm done to society, it shocks the
sense ofjustice. State v. Spikes, 2017- 0087 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d
201, 204. The trial court has great discretion in imposing a sentence within the
statutory limits, and such a sentence will not be set aside as excessive in the
absence of a manifest abuse of discretion. State v. Ford, 2017- 0471 ( La. App. 1st
Cir. 9/ 27/ 17), 232 So. 3d 576, 587, writ denied, 2017- 1901 ( La. 4/22/ 19), 268 So.
3d 295. Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors
for the trial court to consider when imposing sentence. While the entire checklist
of LSA- C.Cr.P. art. 894. 1 need not be recited, the record must reflect the trial court
adequately considered the criteria. State v. Letell, 2012- 0180 ( La. App. 1st Cir.
10/ 25/ 12), 103 So. 3d 1129, 1138, writ denied, 2012- 2533 ( La. 4/ 26/ 13), 112 So.
The articulation of the factual basis for a sentence is the goal of LSA-C. Cr.P.
art. 894. 1, not rigid or mechanical compliance with its provisions. Where the
record clearly shows an adequate factual basis for the sentence imposed, remand is
10 unnecessary even where there has not been full compliance with LSA-C. Cr.P. art.
894. 1. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); State v. Ducote, 2016-
1457 ( La. App. 1st Cir. 4/ 12/ 17), 222 So. 3d 724, 727. The trial judge should
review defendant' s personal history, his prior criminal record, the seriousness of
the offense, the likelihood that he will commit another crime, and his potential for
rehabilitation through correctional services other than confinement. See State v.
Jones, 398 So. 2d 1049, 1051- 1052 ( La. 1981); State v. Scott, 2017- 0209 ( La. App.
1st Cir. 9/ 15/ 17), 228 So. 3d 207, 211, writ denied, 2017- 1743 ( La. 8/ 31/ 18), 251
So. 3d 410. 4n appellate review of a sentence, the relevant question is whether the
trial court abused its broad sentencing discretion, not whether another sentence
might have been more appropriate. State v. Thomas, 98- 1144 ( La. 10/ 9/ 98), 719
So. 2d 49, 50 ( per curiam). In this case, on his conviction of attempted second
degree murder, defendant was exposed to a sentencing range of ten to fifty years
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence. See LSA-R.S. 14: 27( D)( 1) and 14: 30. 1( B).
Here, Gabriel addressed the court with a victim impact statement in which
she described her life as having changed following the shooting, explaining that
her eleven -year old daughter, her siblings, and her mother help her due to her
paralysis. She also explained most of what she lost she could " get back with
She also testified support from family and friends, and just through hard work."
regarding the impact of defendant' s actions on their children and the sacrifices The trial court made to help her find " a different way of doing things now."
discussed defendant' s history and the offense as detailed in the presentence
investigation at length. The court noted the investigation recommended a terrn of
no more than eleven years imprisonment. The court also observed defendant
worked for the Baton Rouge Fire Department for fifteen years and did not have a
history of criminal convictions. Although Gabriel expressed her forgiveness of
11 defendant and a desire that he not be given a lengthy prison sentence so that he
could be part of their children' s lives, the court found that "[ t] his is a completely
senseless crime that has permanent consequences not just for the defendant, but for
the victim[.]" The court found as the only mitigating circumstance the fact that
defendant did not expend all of the bullets in the gun when shooting the victim and
eventually called 911. Ultimately, the court described defendant' s offense as " a
pretty horrible crime" where the victim is " paralyzed for the rest of her life" and
that "[ a] nything less than this would depreciate [ sic] the seriousness of this
offense." At the hearing on defendant' s motion to reconsider sentence, the trial
court informed defendant that it does not " let victims sentence[,]" and that it
considered all of those factors that are in the Code of Criminal Procedure."
Weighing heavily in the court' s determination was the permanence of the victim' s
paralysis, that defendant " took a lot away" from the victim and her family, and that
the result of his actions were permanent.
Defendant' s sentence is within the statutory parameters. Given the broad
discretion afforded a trial court in sentencing, we do not find defendant' s sentence
unconstitutionally excessive. In considering the Article 894. 1( B) factors, we note
that defendant' s conduct during the commission of the offense manifested
deliberate cruelty to the victim, that the offense resulted in significant permanent
injury to the victim, and that defendant used a dangerous weapon in the
commission of the offense. See LSA- C. Cr.P. art. 894. 1( B)( 1), ( 9), & ( 10). We
find that the sentence imposed is not grossly disproportionate to the severity of the
offense and does not show a " manifest abuse of discretion" on the part of the
sentencing court.
Accordingly, this claim is also without merit.
CONVICTION AND SENTENCE AFFIRMED.