Judgment rendered June 26, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,739-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ROOSEVELT T. ARDISON Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 349995
Honorable Erin Leigh Waddell Garrett, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad Ikerd
JAMES EDWARD STEWART, SR. Counsel for Appellee District Attorney
ROSS STEWART OWEN ERICA N. JEFFERSON CHARLES KENNETH PARR Assistant District Attorneys
Before WILLIAMS, McCALLUM, and THOMPSON, JJ.
WILLIAMS, C.J., dissents with written reasons. McCALLUM, J.
Roosevelt Ardison appeals his convictions for possession with the
intent to distribute cocaine and for possession of a firearm or carrying a
concealed weapon by a convicted felon, and the concurrent 20-year
sentences that he received for his convictions.
We affirm his convictions, vacate his sentences, and remand for
resentencing.
FACTS
Donald Belanger Jr. is an agent with the Shreveport Police
Department’s street level interdiction unit. John Witham is a narcotics agent
with the Caddo Parish Sheriff’s Office (“CPSO”). On June 8, 2017,
Belanger and Witham were on patrol in the 1600 block of Oakdale Street in
Shreveport when they came upon a “trap house” located at 1653 Oakdale. A
trap house is a house where drug dealers, who do not live at that particular
home, gather to ply their trade.
As they pulled up to the trap house, the agents saw one male,
defendant Roosevelt Ardison, standing in the driveway with a small female
child with him. Two older males were sitting in chairs in the driveway.
Ardison, who began walking toward the street when the agents approached
the men, complied when Belanger asked him to step back into the driveway.
Meanwhile, Witham dealt with the other two men.
Belanger, noting that Ardison was looking around and fearing that he
may be armed because of the number of drug and weapon arrests that had
been made at that location, decided to pat down Ardison for weapons. When
Belanger touched Ardison’s back and told him what he was doing, Ardison
tried to pull away forcefully and violently. Belanger pinned Ardison’s arms 1 against his body. During the struggle, a 9mm handgun in Ardison’s
waistband was exposed. Agent Witham successfully retrieved the weapon,
which contained eight rounds in its magazine.
As Belanger took Ardison to the ground, Ardison threw a black object
which turned out to be a sock containing a gram of cocaine packaged in 11
individual bags. While being interviewed by Belanger, Ardison admitted
that the handgun was his, but claimed that he was only holding the cocaine
for someone else.
Ardison was charged by bill of information with: (1) violating La.
R.S. 14:95.1 by possessing a firearm or carrying a concealed weapon as a
person convicted of certain felonies; and (2) violating La. R.S. 40:967(A)(1)
by possessing a Schedule II CDS with the intent to distribute.
Ardison filed a motion to suppress the gun and drugs on the ground
that the officers lacked justification to physically stop him from walking
away by grabbing him. His motion to suppress was denied.
A jury trial was held in this matter on March 5-6, 2018. Tim Mills, a
probation and parole specialist with Louisiana State Probation and Parole,
testified that he supervised Ardison in connection with a November 28,
2000, guilty plea to distribution of a Schedule I CDS. Ardison was
sentenced to 15 years’ imprisonment at hard labor for that conviction.
Ardison, who had a full-term parole date of December 23, 2017, was still
under Mills’ supervision at the time of his arrest for the instant offenses.
Ardison was convicted by the jury as charged. The jury was
unanimous on the weapon charge, but not on the drug charge.
On May 8, 2018, Ardison filed a motion for a post-verdict judgment
of acquittal and a motion for a new trial. Ardison appeared for sentencing 2 on September 12, 2018. The court denied the pending motions before
sentencing Ardison to 20 years of imprisonment at hard labor without the
benefit of parole, probation, or suspension of sentence on the firearm
conviction. On the conviction of possession with the intent to distribute a
Schedule II CDS, Ardison was sentenced to 20 years of imprisonment at
hard labor, with two years to be served without the benefit of parole,
probation, or suspension of sentence. The two sentences were to be served
concurrently. Ardison was given credit for time served.
On September 27, 2018, Ardison filed a motion to reconsider sentence
in which he contended that his sentences were constitutionally excessive and
that the trial court failed to adequately consider his age. The trial court
denied the motion on October 2, 2018.
Ardison has appealed, arguing that: (1) the trial court erred by denying
his motion to suppress; (2) the trial court failed to adequately build a record
with reasons justifying his concurrent sentences of 20 years; (3) his
sentences are constitutionally excessive; and (4) his rights to due process and
a fair trial were violated by Louisiana allowing a non-unanimous jury
conviction.
DISCUSSION
Motion to suppress
In his motion to suppress the drugs and weapon, Ardison argued that
the evidence should be suppressed because the agents lacked a reason or
cause to stop him.
Agent Belanger testified at the hearing on the motion to suppress that
he and Agent Witham were on routine patrol when they stopped at a home in
the 1600 block of Oakdale that was well-known as a trap house. Belanger 3 described a trap house as a home where nobody in particular lives, but where
drug dealers set up shop. Belanger asserted that he had been at that
residence many times for narcotics activity, and he considered it to be in a
high crime area.
Ardison was standing in the driveway while holding the hand of a
very young girl. Two older males were sitting in lawn chairs. Belanger
noted that when they typically approached people outside that residence,
someone would throw away drugs or weapons while running from the
location.
As Belanger and Witham exited their vehicle and approached the
three men, two of the men remained seated, but Ardison began walking out
to the street. Belanger “cut off” Ardison’s route and asked him to come
back to the driveway, which Ardison did. Belanger noted that Ardison
positioned the child between them and was acting in an evasive and
suspicious manner. Based on Ardison’s behavior and the nature of the
location, Belanger began to suspect that Ardison may be armed. By the
nature of the location, Belanger meant that it was a high crime and high drug
area, and usually someone was armed whenever officers had gone to that
particular residence. Belanger put his arm to Ardison’s back, told him to
relax, and stated he was going to pat him down. It was at that point that
Ardison began resisting. The weapon in Ardison’s waistband was revealed
as the pair struggled.
Asked if he had blocked Ardison’s way, Belanger explained that he
walked around the back of Ardison and asked him to “come back over here.”
Ardison, who complied by changing direction toward the house, returned to
nearly the same spot in the driveway where he had been originally standing. 4 Belanger noted that Ardison continued to act in an evasive manner as
he stepped left and right while standing in the driveway, and that Ardison
was looking around as if he was searching for an escape route. Ardison kept
placing the little girl between them, and Belanger could not engage him in
conversation. Accordingly, based on his knowledge, training, and
experience, Belanger became suspicious that Ardison was involved in
criminal activity. Belanger testified that he knew at that point that they
needed to pat Ardison down, because they could not allow Ardison to
continue without knowing that he was in fact unarmed. Ardison had his
back to Belanger at the time.
Agent Witham, who was assigned to narcotics with the CPSO,
testified that he had conducted four or five prior narcotics arrests or
investigations in the 1600 block of Oakdale. In reference to 1653 Oakdale,
Witham stated that it was a known drug location, he had executed search
warrants at that house, and he also had an open case at the house at the time
of his encounter with Ardison.
When Belanger and Witham first pulled up to the house, Witham
thought Ardison resembled someone he had previously arrested for crimes
involving drugs and guns. Witham described Ardison as looking like a
“deer in the headlights” when they first made contact with him. Witham
recalled that the two men sitting down were calm, but that Ardison looked
like he knew that he was in trouble when he saw the officers. Witham also
interpreted Ardison’s body language as expressing that something that “just
wasn’t right” was taking place between Ardison and the other two men.
Witham believed the little girl with Ardison was his daughter, and he
5 remembered that Ardison kept her close to him and basically used her as a
shield while Belanger was talking to him.
Witham also recalled that Ardison was creating distance from the two
other men when the officers first approached by making a “zigzag” motion
back and forth. After Ardison complied with Belanger’s request to come
back, he continued with this motion while Belanger was talking to him.
The State argued at the hearing on the motion to suppress that the
agents had reasonable suspicion to approach Ardison and conduct an
investigatory stop based on Ardison’s evasive and suspicious behavior, the
home’s history as a drug location known to the agents, and the high crime
nature of the area.
At the conclusion of the hearing, the trial court denied the motion to
suppress, stating, as follows:
So, Mr. Bowers, I agree with a lot of your argument. But at the end of the day I’m going to deny the motion to suppress because of the expertise and observation that the agents were able to view and feel, for lack of a better word, without us being there. I think that the testimony that they provided indicated what amounted to reasonable suspicion for them. . . . based on what they testified to and I believe that their expertise, skill and training in that particular area gives them a leg up on something that I’m not able to see from right here. So based on that I’m going to deny the motion to suppress.
Ardison argues on appeal that the trial court erred in denying his
motion to suppress because the agents did not objectively have reasonable
suspicion to stop and frisk him. He urges that the agents did not observe any
weapons or illegal activity when they stopped him from walking away from
the driveway. Ardison contends that he was illegally seized when the agents
called him back to the driveway and it was clear by the authority asserted
that he was not free to leave.
6 Ardison maintains that the agents, who were dressed in uniform, made
a show of authority by telling Ardison that he needed to stay and talk after
he attempted to leave with his daughter. He argues that a reasonable person
in his position would not have felt free to leave. Moreover, based on the
information available to the agents at the time, there was not reasonable
suspicion to detain him.
In response, the State argues that Belanger’s approach and initial
encounter with Ardison were consensual. The State further argues that an
investigatory stop was justified when looking at the totality of the
circumstances (Ardison’s presence in a high crime area coupled with his
nervousness and other suspicious actions upon approach of the officers) and
considering the agents’ experience.
The Fourth Amendment to the United States Constitution and Article
1, §5 of the Louisiana Constitution prohibit unreasonable searches and
seizures. It is well settled that a search and seizure conducted without a
warrant issued on probable cause is per se unreasonable unless the
warrantless search and seizure can be justified by one of the narrowly drawn
exceptions to the warrant requirement.1 State v. Thompson, 2002-0333 (La.
4/9/03), 842 So. 2d 330.
One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L.Ed.2d 889 (1968), when the Supreme Court held that a
police officer may, in appropriate circumstances and in an appropriate
1 Ardison was still under parole supervision at the time of his arrest. A person on parole or probation has a reduced expectation of privacy under the Fourth Amendment and under Article I, §5 of the Louisiana Constitution. State v. Angel, 44,924 (La. App. 2 Cir. 1/27/10), 31 So. 3d 547. This reduced expectation of privacy allows reasonable warrantless searches of their person and residence by a probation or parole officer. See La. C. Cr. P. art. 895(A)(13)(a); State v. Malone, 403 So. 2d 1234 (La. 1981). However, neither agent involved in the encounter was a probation or parole officer. 7 manner, approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest. State v.
Morgan, 2009-2352 (La. 3/15/11), 59 So. 3d 403. To satisfy the
reasonableness requirement of the Fourth Amendment, police officers
conducting an investigatory stop must have a reasonable suspicion supported
by articulable facts that criminal activity “may be afoot.” United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)
(citing Terry, supra).
The officer must be able to articulate something more than an
inchoate and unparticularized suspicion or hunch as the Fourth Amendment
requires some minimal level of objective justification for making the stop.
Sokolow, supra.
Officers are allowed to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative
information available to them. United States v. Arvizu, 534 U.S. 266, 122 S.
Ct. 744, 151 L. Ed. 2d 740 (2002).
When determining whether the officers had a particularized and
objective basis for suspecting the person they stopped of criminal activity, a
court must take into account the totality of the circumstances, giving
deference to the inferences and deductions of a trained police officer. See
United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621
(1981); State v. Huntley, 1997-0965 (La. 3/13/98), 708 So. 2d 1048.
While a subject’s presence in a high crime area alone is insufficient to
support a reasonable suspicion of criminal activity, officers are not required
to ignore a location’s relevant characteristics to determine whether the
circumstances are sufficiently suspicious to warrant additional investigation. 8 Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
A subject’s nervous, evasive behavior is another pertinent factor in
determining reasonable suspicion. Id. Headlong flight is the consummate
act of evasion. Id.
Presence in a high crime area, coupled with nervousness or flight or
other suspicious actions upon approach of officers, is sufficient to justify an
investigatory stop. State v. Marshall, 46,457 (La. App. 2 Cir. 8/10/11), 70
So. 3d 1106.
The Terry exception has been codified in La. C. Cr. P. art. 215.1,
which reads, in part:
A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
At the trial on a motion to suppress, the State has the burden of
proving the admissibility of any evidence seized without a warrant. La. C.
Cr. P. art. 703(D).
This court reviews the district court’s ruling on a motion to suppress
under the manifest error standard in regard to factual determinations, while
applying a de novo review to its findings of law. State v. Hemphill, 41,526
(La. App. 2 Cir. 11/17/06), 942 So. 2d 1263, writ denied, 2006-2976 (La.
3/9/07), 949 So. 2d 441.
A trial court’s denial of a motion to suppress is afforded great weight
and will not be set aside unless a preponderance of the evidence clearly
favors suppression. State v. White, 39,681 (La. App. 2 Cir. 5/11/05), 903 So.
2d 580.
9 When reviewing a trial court’s pretrial ruling on a motion to suppress,
the appellate court must look at the totality of the evidence presented at the
hearing on the motion to suppress and may review the entire record,
including testimony at trial. State v. Bates, 51,890 (La. App. 2 Cir. 2/28/18),
246 So. 3d 672.
We begin our analysis by considering the nature of the initial
encounter between Ardison and Agent Belanger. An encounter between a
police officer and a citizen does not trigger Fourth Amendment scrutiny
unless it loses its consensual nature. Florida v. Bostick, 501 U.S. 429, 111
S. Ct. 2382, 115 L. Ed. 2d 389 (1991).
The Fourth Amendment is not violated when a law enforcement
officer merely approaches an individual on the street or in another public
place to ask him if he is willing to answer some questions or by putting
questions to him if the person is willing to listen. Florida v. Royer, 460 U.S.
491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). As long as a reasonable
person would feel free to disregard the police and go about his business, the
encounter is consensual and no reasonable suspicion is required. Florida v.
Bostick, supra.
In United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L.
Ed. 2d 497 (1980), the Supreme Court concluded that a person has been
“seized” within the meaning of the Fourth Amendment only if, in view of all
of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d
690 (1991), added the requirement to Mendenhall that the person actually
submit to the officer’s authority before the Fourth Amendment threshold is 10 crossed. State v. Richardson, 2009-0638 (La. 10/20/09), 23 So. 3d 254.
Thus, following Hodari D., a person was seized for purposes of the Fourth
Amendment only if he was physically restrained or if he actually submitted
to an official show of authority under circumstances in which a reasonable
person understood that his freedom of movement had been decisively
curtailed. State v. Richardson, supra.
The initial encounter between Ardison and Agent Belanger retained
its voluntary nature even after Ardison returned to the driveway following
Belanger’s request that he return. While Belanger “cut off” Ardison’s route
when he walked away as the agents approached, compare these facts to those
in State v. Lewis, 2000-3136 (La. 4/26/02), 815 So. 2d 818. In Lewis, two
police officers went to a housing project to investigate complaints that
trespassers were selling drugs there. As Lewis and a companion approached
the officers, Lewis and his companion separated. One officer stepped in
front of Lewis while the other officer stepped in front of his companion in
order to ask basic questions of them. When Lewis was asked for his
identification, he began running from the officers. The Louisiana Supreme
Court concluded that the officer’s request for identification without any
greater show of authority did not convert the encounter into a forcible
detention.
Even if Fourth Amendment scrutiny was triggered when Belanger
asked Ardison to return to the driveway, our consideration of the totality of
the circumstances, while giving deference to the inferences and deductions
of the agents, reveals that the agents had the requisite reasonable suspicion
to stop Ardison.
11 Ardison was not merely present in a generic high crime area, as he
was also present at the location of a known trap house. Belanger testified
that as the agents approached the group, they tried to key on suspicious
behavior, and Ardison was the only one displaying such behavior.
According to Witham, Ardison looked like a “deer in the headlights” when
the officers approached. In contrast, the two men sitting down remained
calm. Accordingly, the trial court did not err in denying the motion to
suppress.
Frisk for a weapon
Ardison also argues that the agents lacked reasonable suspicion to
frisk him for a weapon. He contends that even if the initial stop was lawful,
a detention for questioning does not automatically give a law enforcement
officer the authority to conduct a pat-down for weapons. He maintains that
the only information the agents had prior to their interaction with him was
that the location was a “high crime area,” and that his subsequent refusal to
converse with Belanger was not enough to cross the threshold of reasonable
suspicion that he had a weapon. Ardison adds that his reaction to being
grabbed is irrelevant to the determination of whether the agents had
reasonable suspicion to seize him and pat him down.
The Terry court stated that if “an officer is justified in believing that
the individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the power to take necessary
measures to determine whether the person is in fact carrying a weapon and
to neutralize the threat of physical harm.” Id., 392 U.S. at 24, 88 S. Ct. at
1881. The Terry court went on to hold that in such circumstances, when 12 “nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, [the officer] is entitled for the protection of
himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which
might be used to assault him.” Id., 392 U.S. at 30, 88 S. Ct. at 1884-5.
This right of an officer to conduct a protective frisk is also codified in
La. C. Cr. P. art. 215.1(B), which provides that “[w]hen a law enforcement
officer has stopped a person for questioning pursuant to this Article and
reasonably suspects that he is in danger, he may frisk the outer clothing of
such person for a dangerous weapon.”
The officer’s suspicion that he is in danger is not reasonable unless the
officer can point to particular facts which led him to believe that the
individual was armed and dangerous. Sibron v. New York, 392 U.S. 40, 88
S. Ct. 1889, 20 L. Ed. 2d 917 (1968); State v. Hunter, 375 So. 2d 99 (La.
1979). The officer need not establish that it was more probable than not that
the detained individual was armed and dangerous, but it is sufficient that the
officer establish a “substantial possibility” of danger. Id. In determining the
lawfulness of an officer’s frisk of a suspect, courts must give due weight not
to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to
the specific reasonable inferences which he is entitled to draw from the facts
in light of his experience.” State v. Sims, 2002-2208 (La. 6/27/03), 851 So.
2d 1039 (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880).
The State counters that Ardison is precluded from having this
particular issue reviewed by this Court because Ardison’s argument that
Agent Belanger lacked reasonable suspicion to conduct a frisk was not
presented to the trial court. The State is correct on this point, as Louisiana 13 courts have long held a defendant may not raise new grounds for
suppressing evidence on appeal that he did not raise at the trial court in a
motion to suppress. See State v. Brown, 434 So. 2d 399 (La. 1983); State v.
Winzer, 49,316 (La. App. 2 Cir. 10/8/14), 151 So. 3d 135, writ denied, 2014-
2373 (La. 4/22/16), 191 So. 3d 1044.
Even if this Court considered Ardison’s argument, we would find that
Agent Belanger possessed the necessary justification for frisking Ardison for
a weapon. The location where they were standing was known for narcotics.
There is an association of weapons with drugs, and the agents had
encountered individuals with weapons at that location in the past. Ardison
was also acting in a suspicious manner as he had his back to Agent Belanger,
was using a young child as a shield, was not standing still, and looked to be
seeking an escape route. Under the circumstances, the frisk for weapons
was justified.
Excessive sentence
After pronouncing the sentence, the trial court stated that it had
considered the fact pattern and the factors outlined in La. C. Cr. P. 894.1. In
his motion to reconsider sentence, Ardison argued that his sentence was
cruel and unusual and in violation of the Eighth Amendment, and that the
court did not give adequate consideration to his age.
Ardison argues on appeal that his concurrent sentences of 20 years’
imprisonment are constitutionally excessive and unsupported by the record.
He complains that the trial judge did not tailor his sentences as she failed to
state what specific factors she took into consideration when imposing the
sentences. Ardison further complains that the judge failed to ask if he
wanted to give a statement, and that no PSI report was ordered, submitted, or 14 reviewed by the court. Ardison maintains that the trial court failed to
provide this Court with a record sufficient for review, and that his case
should be remanded for full consideration on the record of the factors used
in sentencing.
The State counters that Ardison failed to contemporaneously object to
not being able to address the court, and therefore, he has waived this
argument. The State also argues that the trial court complied with La. C. Cr.
P. art. 894.1 as evidenced by the court stating it did so on the record. The
State further maintains that the record shows a factual basis for the sentences
imposed in this case, and that the sentences are not excessive because
Ardison displayed a blatant disregard for the law.
A reviewing court imposes a two-prong test to determine whether a
sentence is excessive. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court
is not required to list every aggravating or mitigating circumstance so long
as the record reflects adequate consideration of the guidelines of the article.
State v. Smith, 433 So. 2d 688 (La. 1983); State v. Boehm, 51,229 (La. App.
2 Cir. 4/5/17), 217 So. 3d 596. The court shall state for the record the
considerations taken into account and the factual basis therefor in imposing
sentence. La. C. Cr. P. art. 894.1(C). The articulation of the factual basis
for the sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or
mechanical compliance with its provisions; and, where the record clearly
shows an adequate factual basis for the sentence, resentencing is
unnecessary even where there has not been full compliance with La. C. Cr.
P. art. 894.1. State v. Fontenot, 49,835 (La. App. 2 Cir. 5/27/15), 166 So. 3d
1215. 15 The defendant’s personal history (age, family ties, marital status,
health, employment record), prior criminal record, seriousness of the
offense, and the likelihood of rehabilitation are important elements to
consider. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Boehm, supra.
There is no requirement that specific matters be given any particular weight
at sentencing. State v. Boehm, supra.
Second, a sentence violates La. Const. art. I, § 20, if it is grossly out
of proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993). A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. State v. Weaver,
2001-0467 (La. 1/15/02), 805 So. 2d 166.
A trial court has wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of that discretion, a sentence
will not be set aside as excessive. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Boehm, supra.
Whoever violates La. R.S. 14:95.1 shall be imprisoned at hard labor
for not less than 5, nor more than 20 years, without the benefit of probation,
parole, or suspension of sentence, and be fined not less than $1,000.00, nor
more than $5,000.00.
At the time of this offense, whoever committed the crime of
possession with intent to distribute cocaine was subject to a term of
imprisonment at hard labor for not less than 2 years, nor more than 30 years,
with the first 2 years without benefits, and possibly a fine of not more than 16 $50,000.00. La. R.S. 40:967(B)(4)(b). The penalty provisions were
amended by 2017 La. Acts. No. 281, effective August 1, 2017.
Even when a trial court assigns no reasons, the sentence will be set
aside on appeal and remanded for resentencing only if the record is either
inadequate or clearly indicates that the sentence is excessive. State v.
Honea, 2018-0018 (La. App. 1 Cir. 12/21/18), 268 So. 3d 1117. On
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, 1998-1144 (La.
10/9/98), 719 So. 2d 49.
The record does not provide an adequate basis to review the
concurrent sentences for excessiveness. No PSI report was considered, and
the trial court made only a blanket statement about considering the “fact
pattern” and the factors outlined in La. C. Cr. P. 894.1. We discern nothing
about Ardison’s personal history and little about his criminal history from
this record. Accordingly, we vacate his sentences and remand for
Conviction by a non-unanimous jury
Ardison makes a claim of error patent regarding his conviction for
possession with the intent to distribute being based upon a jury verdict that
was not unanimous. He maintains that the issue is a matter of federal
constitutional law, and that the Louisiana Supreme Court is not the final
arbiter of this issue.
Ardison contends that when a “reasonable” juror has doubt as to
whether the State met its burden by voting not guilty, it is per se evidence
that the State did not prove its case beyond a reasonable doubt. Thus, 17 Ardison concludes that his procedural and substantive due process rights
were violated because the State failed to meet its burden of proving to the
entire jury that Ardison possessed cocaine with the intent to distribute it.
In response, the State argues that Ardison failed to contemporaneously
object to the jury composition, and thus, waived this argument. The State
further contends that the new jury conviction law is inapplicable to Ardison
because the law specifically applies to crimes committed after January 1,
2019, and Ardison committed the present offenses on June 8, 2017.
An amendment to Article I, §17 of the Louisiana Constitution was
approved by voters in November of 2018. That Section now states:
Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 2019, 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. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. . . .
The Legislature amended La. C. Cr. P. art. 782(A) in 2018 to provide,
in part:
A case for an offense committed prior to January 1, 2019, 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. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.
In State v. Ramos, 2016-1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d
44, writs denied, 2017-2133 (La. 6/15/18), 257 So. 3d 679, 2017-1177 (La.
10/15/18), 253 So. 3d 1300, Ramos argued that the trial court erred in
denying his motion to require a unanimous jury verdict. Ramos complained
18 that La. C. Cr. P. art. 782(A) violated the Equal Protection Clause, and that
Louisiana’s statutory scheme permitting non-unanimous jury verdicts in
non-capital felony cases should be declared unconstitutional.2 The Fourth
Circuit held in Ramos that under current jurisprudence from the U.S.
Supreme Court, non-unanimous 12-person jury verdicts are constitutional.
In reaching this result, the court in Ramos noted that in State v.
Bertrand, 2008-2215 (La. 3/17/09), 6 So. 3d 738, the Louisiana Supreme
Court reversed the trial court’s finding that La. C. Cr. P. art. 782(A) violated
the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution. The Supreme Court stated as follows:
Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.
Id., 2008-2215 at p. 8, 6 So. 3d at 743.
We recognize that on March 18, 2019, the United States Supreme
Court granted certiorari in Ramos to consider whether the Fourteenth
Amendment fully incorporates the Sixth Amendment guarantee of a
unanimous verdict. Ramos v. Louisiana, 139 S. Ct. 1318 (2019). However,
under current jurisprudence from the United States Supreme Court, non-
unanimous 12-person jury verdicts remain constitutional.
2 La. C. Cr. P. art. 782(A) provided at the time 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.” 19 Under Louisiana law, the requirement of a unanimous jury conviction
specifically applies only to crimes committed after January 1, 2019. The
instant crimes were committed in 2017, and thus, the amended unanimous
jury requirement is inapplicable to Ardison’s case. Ardison’s assertion of an
“error patent” is without merit.
CONCLUSION
For the foregoing reasons, Roosevelt Ardison’s convictions are
AFFIRMED, his sentences are VACATED, and this matter is REMANDED
to the trial court for resentencing.
20 WILLIAMS, C.J., dissents.
I respectfully dissent. I cannot say the evidence demonstrates that the
officer possessed articulable knowledge of specific facts which provided
reasonable grounds to suspect defendant of illegal activity at the time of the
stop.
The majority’s assertion that defendant’s return to the driveway was
“voluntary” strains credulity in a situation where the officer walked from
behind defendant to step in front of him and cut off his path. The evidence
shows that a reasonable person in that situation would not have felt free to
leave.
The testimony demonstrates that defendant did not run at the sight of
the police, but began walking away with his child as the officers approached.
Although this was a high-crime area, the police officers were not responding
to a reported crime when they stopped at the house. In addition, the
encounter did not occur late at night in a dimly lit area. The record shows
that at the time defendant was prevented from leaving, the police officer’s
suspicion was based on defendant’s presence in front of that house in a high
crime area, his physical appearance and his behavior in walking away.
These facts show that in stopping defendant, the officer was acting on
nothing more than a hunch. The result of the trial court’s ruling and this
court’s decision is to signal that a person who happens to reside in an area
labeled as a high-crime zone has a reduced expectation of privacy and fewer
rights than those who reside in low-crime areas.
When considering the totality of the circumstances, I cannot say the
state met its burden to show that defendant’s act of walking away as police
approached at that location gave the officer the minimal level of objective 1 justification to make the investigatory stop of defendant. Based upon this
record, I conclude the trial court erred in denying defendant’s motion to