STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-649
STATE OF LOUISIANA
VERSUS
GLYNN JUNIORS
************
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION, NO. 37,733, HONORABLE J. STERLING SNOWDY, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese, Judges.
CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS.
Rodney A. Brignac Special Assistant District Attorney Post Office Box 399 LaPlace, Louisiana 70069-0399 (985) 652-9757 Counsel for: State of Louisiana
Michael Harson District Attorney Post Office Box 3306 Lafayette, Louisiana 70502-3306 (337) 232-5170 Counsel for: State of Louisiana Katherine M. Franks Louisiana Appellate Project Post Office Box 2341 Slidell, Louisiana 70459-2341 (985) 847-1212 Counsel for Defendant/Appellant: Glynn Juniors SULLIVAN, Judge.
Defendant, Glynn Juniors, was indicted in St. John the Baptist Parish in the
Fortieth Judicial District for the first degree murder of Joann Edler, a violation of
La.R.S. 14:30. Pursuant to a defense motion for a change of venue, the case was
transferred to Vermilion Parish in the Fifteenth Judicial District. Subsequently, the
charge against Defendant was amended to second degree murder, a violation of
La.R.S. 14:30.1. After a jury trial in Vermilion Parish, Defendant was found guilty
of second degree murder by a vote of eleven to one. He was later sentenced to the
mandatory term of life imprisonment at hard labor. He appeals his conviction and
sentence, raising seven assignments of error. For the following reasons, we
conditionally affirm Defendant’s conviction and sentence pending remand for a
determination of whether a nunc pro tunc hearing to assess Defendant’s competency
is possible, and if so, the outcome of that hearing.
Procedural History
A grand jury indicted Defendant and a co-defendant, Ronald Williams, for the
first-degree murder of Joann Edler, an employee of BRS Seafood in LaPlace,
Louisiana, who was found dead at her place of employment with her throat slashed
and a gunshot wound to her head.1 That indictment initially bore docket number 98-
88 and was assigned to Division “B” of the Fortieth Judicial District. The same
individuals were also indicted for attempted first degree murder and attempted armed
robbery in an incident that occurred at the In & Out Food Store in Reserve, Louisiana.
That indictment was assigned docket number 98-12 and allotted to Division “C.”
On January 22, 1998, Defendant appeared with appointed counsel from the
indigent defender board (IDB) in Division “C” and pleaded not guilty to all charges
1 Williams was charged with being a principal to the first degree murder of Ms. Edler. He later pleaded guilty as charged and testified against Defendant in the instant trial. in both indictments. At that hearing, counsel for the State stated that the first
indictment handed down, for first degree murder, was “inadvertently filed into the
wrong jacket” and requested that the court switch the docket numbers so that “the
murder indictment is in the proper number 98-12(2) and the attempted first degree
murder and attempted armed robbery indictment is in its proper jacket which would
be 98-88.” The present case thereafter proceeded under docket number 98-12 in
Division “C.”
On January 30, 1998, two capital-qualified attorneys enrolled as counsel for
Defendant. Various pre-trial filings were dealt with throughout 1998 and 1999. On
January 3, 2000, Defendant filed a “Motion for Mental Examination.” The court
granted the motions, and set a hearing for April of 2000. The record does not show
a ruling on this motion. The case was reset multiple times, then on October 9, 2000,
in open court, the State announced it would not seek the death penalty. On
October 19, 2000, capital counsel moved to withdraw; the trial court granted the
motion and again appointed counsel from the IDB.
On April 12, 2001, Defendant filed a motion for change of venue, which the
trial court granted on June 22, 2001. On July 23, 2001, the trial court issued an order
setting jury selection in Lafayette Parish. However, on July 31, 2001, the court issued
a new order, transferring the case to Vermilion Parish “by special arrangement with
the judges of the 15th Judicial District Court.”
On August 14, 2001, the trial court ordered that the entire record be transferred
to Vermilion Parish. On August 17, 2001, the State filed a motion to amend the
indictment to second degree murder. The record was physically delivered to
Vermilion Parish on the same date. On August 22, 2001, Defendant pleaded not
2 guilty to the amended charge. The minutes are not clear regarding which judicial
district conducted the plea hearing, but Defendant was returned to the St. John the
Baptist Parish jail at the close of the hearing.
After additional pre-trial motions, jury selection commenced in the Fifteenth
Judicial District in Vermilion Parish on September 5, 2001. After hearing evidence
for two days, the jury found Defendant guilty of second degree murder.
In response to Defendant’s written motion to be sentenced in the original
venue, trial court set the sentencing hearing for St. John the Baptist Parish. On
November 13, 2001, the trial court sentenced Defendant to the mandatory term, life
imprisonment at hard labor.
Defendant filed a timely motion for appeal on November 16, 2001. The motion
included a request that the Louisiana Appellate Project (LAP) represent him on
appeal. The trial court sent the notice of appeal to the Louisiana Fifth Circuit Court
of Appeal. Subsequently, the appeals clerk for the Fortieth Judicial District filed for
an extension of the return date with the fifth circuit. The appellate court granted the
motion on February 27, 2002, extending the return date to March 13, 2002. On
March 27, 2002, the LAP filed a letter in the district court naming Jennifer Pate as the
LAP attorney assigned to the case. The record indicates the case then lay dormant for
approximately two years.
On June 2, 2004, the clerk of court for St. John the Baptist Clerk Parish filed
a notice with the Vermilion Parish clerk’s office, indicating transcripts and other
filings were transferred to the latter clerk’s office. On June 13, 2004, the LAP sent
a letter to the St. John the Baptist Parish clerk indicating that Kay Franks had been
appointed to handle the case. On June 30, 2004, the Vermilion Parish clerk’s office
3 filed a notice that it was transferring a large number of transcripts, exhibits, and other
filings back to St. John the Baptist Parish. Counsel Franks then proceeded with
filings in St. John the Baptist Parish and in the fifth circuit. On March 31, 2005, a
panel of the fifth circuit concluded that it lacked jurisdiction over the case and
ordered that the record be transferred to this court.
Assignment of Error No. 1
In his first assignment of error, Defendant argues that the trial court erred by
allowing the State to “swap” docket numbers for the two cases in which he was
charged. He asserts that the exchange of docket numbers, in effect, allowed the State
to choose which judge would hear the case.
District attorneys are prohibited from having any power to select the trial judge
for a particular case. The allotment of cases to trial judges must be on a random
basis; the prosecution cannot have any power to control the allotment process. State
v. Broussard, 03-1340 (La. 6/26/03), 852 So.2d 978; State v. Simpson, 551 So.2d
1303 (La.1989). However, as Defendant raises this issue for the first time on appeal,
he must show prejudice to warrant reversal of his conviction. Such alleged prejudice
is assessed pursuant to a harmless-error analysis. State v. Huls, 95-541 (La.App. 1
Cir. 5/29/96), 676 So.2d 160, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126.
As Defendant observes, he was arraigned on January 22, 1998. The minutes
show that the trial court granted the State’s motion to “transfer” the indictment
bearing the present charges (Case 1998-88(2)) into another case (Case 1998-12(2)).
Neither the minutes nor the transcript of that hearing indicate that Defendant objected
to the transfer as shown in the following exchange:
MRS. GRAUGNARD [for the State]:
4 Your Honor, in connection with the arraignment, the State would move in accordance with the situation we explained in the Williams’ matter, that the indictment against Mr. Juniors was returned by the Grand Jury prior to the indictment in the attempted first degree murder and attempted armed robbery matter. The indictment in the murder case has been inadvertently filed into the wrong jacket. This matter was assigned the number 98-12 “C” which appears, as a matter of fact on Mr. Stricks’ pleadings this morning, and was inadvertently filed into the 98-88 jacket. So we would ask that those, that those indictments be switched so that the murder indictment is in its proper number 98- 12 (2) and the attempted first degree murder and attempted armed robbery indictment is in its proper jacket which would be 98-88 (2).
MR. STRICKS [for Defendant]: Your Honor, may I inquire if 98-88 has been randomly allotted?
THE COURT: Yes, it has.
MR. STRICKS: And where’s it been allotted to?
THE COURT: It’s been allotted to “B”.
MR. STRICKS: Okay. So in 98-12 we have the capital indictment, is that correct?
MRS. GRAUGNARD: Correct, should be.
MR. STRICKS: And in 98.
THE COURT: 88 (2).
MR. STRICKS: We have the attempt.
THE COURT: Attempted first degree murder and the attempted armed robbery in [the In & Out] situation.
MR. STRICKS:
5 Yes, sir. And is Mr. Juniors going to be arraigned on all of those today?
MRS. GRAUGNARD: Yes, sir, that would be our request.
MR. STRICKS: Well, it’s possible that he may have other counsel assigned in that “B” matter.
THE COURT: That is correct.
MR. STRICKS: We’ll take that up later.
Even if the State did exert improper control in the allotment process, we find
that any such error would be harmless. At the trial level, Defendant did not seek to
recuse the trial judge, and on appeal, Defendant makes no allegations that trial judge
was biased.
This assignment of error lacks merit.
Assignments of Error Nos. 2, 3, and 4
In his appellate brief, Defendant has combined his next three assignments of
error, as the second and third assignments contain similar attacks on the authority of
the trial judge and the prosecutors from St. John the Baptist Parish to conduct and to
participate in the trial after venue had been changed to Vermilion Parish and the
fourth assignment concerns the allotment of the case in Vermillion Parish.2
Defendant argues that, since the trial judge and prosecutors acted outside their
territorial jurisdictions without authorization from the supreme court, their actions in
2 At the outset, we note that Defendant’s fourth assignment of error argues that the Fifteenth Judicial District Clerk of Court’s Office failed to properly allot the case once it was transferred. To the extent the assignment raises issues regarding random allotment, we find that it lacks merit for the reasons given in the analysis of the first assignment of error. Essentially, Defendant has failed to demonstrate prejudice.
6 Vermilion Parish were invalid. He, thus, contends that his conviction is a nullity due
to a structural error that requires remand for a new trial.
Defendant requested and received a change of venue from St. John the Baptist
Parish. Although he states in his brief that he intends to raise on post-conviction
relief that his attorney should have objected to the site of the transfer, Vermilion
Parish, that claim is not before us on appeal. Accordingly, for the purposes of these
assignments, we will treat the change of venue as valid.
To the extent that Defendant suggests the Fifteenth Judicial District did not
have jurisdiction over his case as contemplated by La.Code Crim.P. art. 859(3), that
argument must fail. As the comments to Article 859 state, lack of jurisdiction
“embraces such matters as the trial of a juvenile by a regular district court for a
noncapital crime, trial of a felony by a city court, or trial in a Louisiana court for a
federal crime.” Clearly, the Fifteenth Judicial District had the authority to try
Defendant’s noncapital felony prosecution, a proceeding that originated in the
Fortieth Judicial District but was transferred pursuant to the Code of Criminal
Procedure. As La.Code Crim.P. art. 611 (emphasis added) provides in part: “All
trials shall take place in the parish where the offense has been committed, unless the
venue is changed.” Under La.Code Crim.P. art. 623, “[w]hen a change of venue is
granted, the court shall transfer the case to another parish.” Additionally, Defendant
has not otherwise challenged the qualifications of the presiding judge, who would
have conducted the trial had the case remained in its original venue. Further, as noted
in our previous discussion, Defendant makes no allegations of bias or prejudice on
the part of the trial judge.
7 Defendant’s arguments are concerned more with the implementation of a
change of venue, rather than the validity of such an order or the power of the
transferee court to hear the case. Concerning the mechanics of a change of venue,
La.Code Crim.P. art. 624 provides:
When a change of venue is granted, the clerk of the court in which the case is pending shall make and retain copies of all documents relating to the case. He shall deliver the original documents together with certified copies of all minute entries of the case to the clerk of the court to which the case is transferred, who shall enter the case upon the docket of the court, and the case shall be proceeded with in the same manner as if the proceedings had originally been instituted therein.
Although this article provides little guidance for courts in implementing a
change of venue, our research has revealed cases in which the trial judge has
“followed” the case from the original venue to the transferee court. See State v. M.M.,
00-1296 (La.App. 3 Cir. 8/29/01), 802 So.2d 43, writ denied, 01-3370 (La. 10/4/02),
826 So.2d 1121; State v. Bolden, 95-749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, writ
denied, 96-1272 (La. 11/22/96), 683 So.2d 286 (pursuant to an ad hoc appointment);
and State v. Lee, 569 So.2d 1038 (La.App. 3 Cir. 1990). Thus, despite the last
sentence of Article 624, Louisiana courts have employed different methods in
deciding the matter of which trial judge will preside over a transferred case.
As Defendant’s arguments cannot support an attack on the subject matter
jurisdiction of the Fifteenth Judicial District, nor do they otherwise challenge the
qualifications of the presiding judge, we find that any objections to the trial judge’s
or the prosecutors’ authority in this case should have been raised pursuant to a motion
to quash, as provided by the general article governing such motions. As La.Code
Crim.P. art. 531 states: “All pleas or defenses raised before trial, other than mental
incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by
8 reason of insanity,’ shall be urged by a motion to quash.” See also State v. Dean,
99-475, p. 3 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, 58-59, writ denied, 99-3413 (La.
5/26/00), 762 So.2d 1101, which stated:
A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e. pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court.
Although Dean dealt with a different issue than the present case, its description
of the basic function of a motion to quash is logical and comports with the language
of the article. In State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044, cert.
denied, __U.S. __, 125 S.Ct. 1745 (2005), the supreme court stated that the proper
method for contesting a charging instrument is through a pre-trial motion to quash.
Thus, the defendant’s failure to file such a motion waived the issue for purposes of
the appeal.
We further find that Defendant’s reliance on State v. Langley, 04-269 (La.App.
3 Cir. 12/29/04), 896 So.2d 200, as authority for structural error in the present case
is misplaced. In Langley, 896 So.2d at 210, the trial judge’s actions of absenting
himself throughout critical stages of a second degree murder trial resulted in “the
inability to adequately and appropriately oversee voir dire and rule on challenges, the
necessity of prohibiting contemporaneous objections during closing arguments, . . .
and the unavailability of an authoritative figure in the courtroom to immediately
squelch disruptions.” In the present case, any alleged error could have been easily
corrected pre-trial, but absent that correction, it had no effect on the conduct of the
trial.
These assignments of error lack merit.
9 Assignment of Error No. 5
In his fifth assignment of error, Defendant contends that the trial judge erred
in permitting the case to be tried without adjudicating his competency to proceed after
a sanity commission had been invoked.
Defendant filed a motion for a mental examination, asserting that he was in
need of a mental evaluation to determine his sanity at the time of the commission of
the offense and that he may not be competent to assist counsel in his own defense.
The trial court granted the motion on January 3, 2000, appointing a sanity
commission composed of Dr. Christy Montegut and Dr. Rafael Salcedo. A hearing
to consider the matter was scheduled for April 19, 2000. A minute entry for April 19,
2000 indicates the hearing was reset.
Dr. Montegut wrote a letter dated June 21, 2000, stating that she had examined
Defendant and that she had determined he was mentally competent. She stated in her
letter: “After a careful examination, it is my opinion that Glynn Juniors understands
the charges against him and is able to assist his attorney in his own defense. He
understands right from wrong and the functions of the court. He is mentally
competent to stand trial.”
In a letter dated June 21, 2000, Dr. Salcedo stated that his examination revealed
that Defendant was not suffering from a “mental disorder that interferes with his
ability to understand the Bennet criteria.” Accordingly, Dr. Salcedo’s letter
recommended that “Mr. Green be found competent to proceed to trial.” The name
“Green” was then crossed out and the name “Juniors” and what appears to be the
letter “M” were hand written above the crossed out name.
10 There are no other minute entries or documents in the record that indicate a
sanity hearing was held or that the trial court made a finding regarding Defendant’s
sanity or competency to assist his attorney. However, the matter proceed to trial by
jury, and Defendant was found guilty of second degree murder and sentenced to life
imprisonment.
Defendant contends that the trial court’s failure to resolve the issue of his
competency before proceeding to trial was error and that the failure to hold a
contradictory hearing was not harmless, as the reports of the sanity commission failed
to mention the basis for the assessment of competency. However, Defendant also
contends that because the reports of the sanity commission are contained in the
record, a retroactive inquiry into his competency may be had and the matter should
be remanded for a nunc pro tunc hearing.
“When the question of the defendant’s mental incapacity to proceed is raised,
there shall be no further steps in the criminal prosecution, except the institution of
prosecution, until the defendant is found to have the mental capacity to proceed.”
La.Code Crim.P. art. 642.
The supreme court discussed the need to address a defendant’s competency in
State ex rel. Seals v. State, 00-2738, pp. 5-6 (La. 10/25/02), 831 So.2d 828, 832-33
(citations omitted) (emphasis added), as follows:
At the outset, we note the longstanding precept that a defendant does not have an absolute right to the appointment of a sanity commission simply upon request. A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed. It is well established that “reasonable grounds” exist where one should reasonably doubt the defendant’s capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. To determine a defendant’s capacity, we are first guided by La.Code Crim. Proc. arts. 642, 643, and 647.
11 As a general matter, La.Code Crim. Proc. art. 642 allows “[t]he defendant’s mental incapacity to proceed [to] be raised at any time by the defense, the district attorney, or the court.” The Article additionally requires that “[w]hen the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution . . . until the defendant is found to have the mental capacity to proceed.” Next, Article 643 provides in pertinent part, “The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed . . . .” Last, if a defendant’s mental incapacity has been properly raised, the proceedings can only continue under La.Code Crim. Proc. art. 647 which provides:
The issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. . . .
This protection, however, is not to say that every time a defendant feigns incapacity the court must order a full-blown sanity commission. In State v. Berry, 391 So.2d 406, 411 (La.1980), we firmly held that the trial court is granted great discretion in determining if a defendant should be afforded a mental examination to determine capacity. Indeed, where a trial judge finds enough evidence to doubt a defendant’s capacity, the court may order the defendant be examined by a single psychiatrist to satisfy requirements of La.Code Crim. Proc. art. 643. There is no need for a sanity commission to be appointed each time capacity of a defendant is questioned.
That being said, questions regarding a defendant’s capacity must be deemed by the court to be bona fide and in good faith before a court will consider if there are “reasonable grounds” to doubt capacity. Where there is a bona fide question raised regarding a defendant’s capacity, the failure to observe procedures to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. At this point, the failure to resolve the issue of a defendant’s capacity to proceed may result in nullification of the conviction and sentence under State v. Nomey, 613 So.2d 157, 161-62 (La.1993), or a nunc pro tunc hearing to determine competency retrospectively under State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.
In the case sub judice, the trial court appointed a sanity commission whose
members examined Defendant. However, there is no evidence that the court made a
12 ruling as to Defendant’s competency before or after the matter proceeded to trial. In
its brief, the State argues that Defendant waived this issue; however, jurisprudence
indicates that a waiver is not appropriate once the trial court has made the threshold
determination to appoint a sanity commission. Compare State v. Gowan, 96-488
(La. 3/29/96), 670 So.2d 1222, and State v. Mathews, 00-2115 (La.App. 1 Cir.
9/28/01), 809 So.2d 1002, writ denied, 01-2873 (La. 9/13/02), 824 So.2d 1191, writ
denied, 01-2907 (La. 10/14/02), 827 So.2d 412. Accordingly, we find that the trial
court erred by not following La.Code Crim.P. art. 642.
This court must now determine whether a nunc pro tunc hearing on the issue
of competency is appropriate.
The federal courts of appeals, although noting that retrospective competency hearings are not favored, have allowed nunc pro tunc hearings on the issue of competency if a meaningful inquiry into the defendant’s competency can still be had. The trial court is in the best position to determine whether it can make a retrospective determination of defendant's competency during his trial and sentencing. The determination of whether a trial court can hold a meaningful retrospective competency hearing is necessarily decided on a case-by-case basis. The State bears the burden to show the court that the tools of rational decision are available.
A “meaningful” determination is possible “where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original state proceedings.” Additionally, “[w]hen determining whether a meaningful hearing may be held, we look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the defendant in the trial transcript, and the existence of medical records. The passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available.” The court in Miller v. Dugger, 838 F.2d 1530 (11th Cir.1988) noted that it had never given the district courts a list of factors that must be met in order to determine that a nunc pro tunc determination of competency is possible, but stated that relevant factors include time, availability of witnesses and the existence of evidence on the state record about the defendant’s mental state at the time.
13 State v. Snyder, 98-1078, pp. 30-31 (La. 4/14/99), 750 So.2d 832, 855 (citations
omitted) (footnote omitted).
In the present case, Defendant was examined by the two members of the sanity
commission. Additionally, the record indicates that Defendant may have been
evaluated by other mental health experts, given defense counsel’s statements at a
hearing on July 31, 1998, that an “ex-parte motion for funds for psychiatric experts”
had already been granted, that a forensic social worker that had been ordered to
conduct the investigation was no longer employed by the clinic being used, and that
an order substituting a replacement would be presented to the court. Thus, there may
be information regarding Defendant’s competency that is available to the trial court
that is not contained in this appellate record. Accordingly, the trial court may be able
to make a retrospective determination regarding Defendant’s competency at the time
of trial.
For these reasons, we remand this case to the trial court for the sole purpose of
determining whether such a hearing is now possible and, if so, to conduct such an
evidentiary hearing. If the trial court concludes that Defendant was competent, no
new trial is required. If the trial court finds a meaningful inquiry cannot be had, or
if it determines after the hearing that Defendant was not competent at the time of his
trial, Defendant is entitled to a new trial. See Snyder, 750 So.2d 832; Mathews, 809
So.2d 1002.
This assignment of error requires further action by the trial court.
Assignment of Error No. 6
In his sixth assignment of error, Defendant contends that the trial court
committed error when it denied a mistrial based upon a misdescribed exhibit being
14 displayed and read to the jury containing, among other things, the bill of indictment
charging him with first degree murder and several joint minute entries mentioning
aspects of the case, including the fact of other offenses, the possibility of a
confession, and the existence of “bad acts” that had not been introduced at trial.
After the testimony of Ronald Williams, the State made the following offering:
[T]he State would offer to introduce and file the bill under indictment #98, State versus Ronald Williams. We also request that a certified extract of the minutes reflecting the plea of May 11, 1999 be offered into the record. And that would, the indictment and certified extract would be offered as State number, I believe, 17.
In addition, Your Honor, the State would offer, introduce, and file the original plea agreement contained in that record, which I have marked with a piece of blue note paper consisting of three pages and ask that a photocopy be substituted for the original for publication to the jury.
At this time, Your Honor, the State would request that the state evidence be published to the jury.
Defense counsel indicated he had no objection.
While the jury viewed the exhibits, the defense attorney questioned whether the
jurors were viewing the indictment. He then informed the court that he had never
seen the exhibit. Defense counsel subsequently examined the exhibits and moved for
a mistrial, stating the following:
There is a—When the district attorney offered State’s Exhibit 17-A, what the—what the Defense offered was the plea form and a copy of the minutes of the plea. What has been presented to the jury, however, is a first degree murder indictment of Glynn Juniors and Ronald Williams together,—
....
—the entire history of this case, including minutes where it says, um, motion to reveal the deals, dash, note—the minutes of this case, all of which is highly prejudicial, none of which is admissible, and is far beyond what was expected to be included as an exhibit which was the minutes of the guilty plea and the sentencing.
15 Now, an indictment of Ronald Williams, we have no problem with. But this is a—What the jury has just seen now is the joint indictment, and—Just one moment. So I would like the Court to look at what has been marked as this Exhibit D-7, which included the minutes of the sentencing, the guilty plea of . . . Ronald Williams, but what was shown to the jury was far more and highly prejudicial.
Defense counsel continued, indicating that it “was never said in court what the
exhibit was going to be, and certainly, not all of the minutes for the entire case since
its inception.” Defense counsel indicated that he did not know who prepared the
exhibit and, had he seen the exhibit before it was presented to the jury, he would have
objected to its introduction into evidence.
After hearing the arguments of counsel, the trial court took the matter under
advisement. The motion was subsequently denied. The exhibit displayed to the jury
was made Court Exhibit 1 and a corrected exhibit replaced the improper exhibit that
was presented to the jury. The trial court noted that “[i]t was never the intention of
the State to offer what is now published to the jury.” Additionally, the trial court read
portions of an admonishment, proposed by defense counsel, regarding the exhibit at
issue to the jury. In admonishing the jury, the trial court stated:
Mr. Glynn Juniors is charged with Second Degree Murder.
The fact that two defendants are charged in an Indictment is not any evidence of guilt of the accused.
The fact that defendants have been in court on the case before this trial is not to be considered by you in any way.
And the fact that lawyers have filed papers or made statements in pre-trial proceedings is not to be considered by you in any way.
The record shows that Ronald Williams was indicted for being a Principal to First Degree Murder and pleaded guilty to being a Principal to First Degree Murder.
16 Defendant contends that the trial court erred by not granting a mistrial based
upon La.Code Crim.P. art. 775, which provides in part that a mistrial shall be granted
“when prejudicial conduct in or outside the courtroom makes it impossible for the
defendant to obtain a fair trial, or when authorized by Article 770 or 771.” We
disagree. As the court stated in State v. Sloan, 29,787, p. 8 (La.App. 2 Cir. 9/24/97),
701 So.2d 995, 999, writ denied, 97-2601 (La. 2/6/98), 709 So.2d 731 (citations
omitted):
A mistrial is a drastic remedy and is warranted only when the error results in substantial prejudice sufficient to deprive the defendant of any reasonable expectation of a fair trial. The decision to grant or deny a mistrial for prejudicial conduct rests within the trial court’s discretion and will not be disturbed absent an abuse of discretion.
We find no abuse of the trial court’s discretion in denying a mistrial based upon
the jurors viewing the documents described, given the trial court’s thorough
admonition.
Assignment of Error No. 7
In his seventh assignment of error, Defendant contends that he was convicted
by a non-unanimous verdict in violation of the Sixth Amendment right to trial by jury
in combination with the Fourteenth Amendment due process right.
Louisiana Constitution Article I, § 17(A) provides that a case “in which the
punishment is necessarily confinement at hard labor shall be tried before a jury of
twelve persons, ten of whom must concur to render a verdict.” Additionally, La.Code
Crim.P. art. 782(A) provides in part that “[c]ases in which punishment is necessarily
confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of
whom must concur to render a verdict.” Defendant was charged with second degree
17 murder, which is punishable by life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence. La.R.S. 14:31. A jury of twelve was
empaneled in the case sub judice, and eleven of those jurors concurred in the verdict.
Accordingly, the proper number of jurors concurred in the verdict.
We note that the second circuit in State v. Divers, 38,524, p. 26 (La.App. 2 Cir.
11/23/04), 889 So.2d 335, 353 writ denied, 04-3186 (La. 4/8/05), 899 So.2d 2,
recently rejected a similar argument, stating: “Non-unanimous jury verdicts for
twelve person juries are not unconstitutional.” The second circuit cited as authority
Apodaca v. Oregon, 406 U.S. 404, 410-11, 92 S.Ct. 1628, 1632-33 (1972) (emphasis
added) (footnote omitted), wherein the United States Supreme Court stated:
[T]he purpose of trial by jury is to prevent oppression by the Government by providing a “safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. [145] at 156, 88 S.Ct. [1444] at 1451 [(1968)]. “Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . .” Williams v. Florida, supra, 399 U.S. [78] at 100, 90 S.Ct. [1893] at 1906 [(1970)]. A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant’s guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served.
See also Johnson v. Louisiana, 406 U.S. 356, 359, 92 S.Ct. 1620, 1623 (1972), in
which the United States Supreme Court stated that it had “never held jury unanimity
to be a requisite of due process of law.”
18 Nonetheless, Defendant argues that Apodaca has been implicitly overruled by
recent jurisprudence from the United States Supreme Court. We disagree, noting that
the Court has not expressly questioned its ruling in Apodaca and, further, that the
cases cited by Defendant do not address whether a unanimous jury verdict is required.
Those cases concern what issues must be decided by a jury.3
Decree
For the above reasons, Defendant’s conviction and sentence are conditionally
affirmed pending the outcome on remand as explained in this opinion.
CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS.
3 In the cases cited by Defendant, the United States Supreme Court held that the following issues must be submitted to a jury and proved beyond a reasonable doubt: Jones v. U.S. 526 U.S. 227, 119 S.Ct. 1215 (1999) (elements of the offense); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact that increases the penalty beyond the statutory maximum); and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002) (aggravating factors required for imposition of the death penalty).