State of Louisiana Versus Ronald Gasser

Opinion

STATE OF LOUISIANA NO. 18-KA-531

VERSUS FIFTH CIRCUIT

RONALD GASSER COURT OF APPEAL

STATE OF LOUISIANA

ON REMAND FROM THE LOUISIANA SUPREME COURT AN APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-7108, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

July 15, 2020

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

CONVICTION AND SENTENCE VACATED; MATTER REMANDED RAC FHW JGG COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT, RONALD GASSER Dane S. Ciolino CHAISSON, J.

This case is presently before this Court pursuant to a remand by the

Louisiana Supreme Court “for further proceedings and to conduct a new error

patent review” in light of Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390, 206

L.Ed.2d 583 (2020).1 State v. Gasser, 19-1220 (La. 6/3/20), --- So.3d ---, 2020

WL 3424001 (per curiam). Previously, this Court affirmed defendant’s conviction

for manslaughter and his sentence of thirty years imprisonment at hard labor. The

guilty verdict was non-unanimous with ten of twelve jurors voting to convict.

State v. Gasser, 18-531 (La. App. 5 Cir. 7/3/19), 275 So.3d 976. For the following

reasons, and in accordance with the Louisiana Supreme Court’s directive on

remand, we find that defendant is entitled to a new trial. We therefore vacate

defendant’s conviction and sentence and remand the matter for further proceedings

consistent with this opinion.

ANALYSIS

As noted in this Court’s previous opinion, defendant was charged, by grand

jury indictment, with second degree murder, in violation of La. R.S. 14:30.1.

Following trial by a twelve-person jury, defendant was convicted of the lesser

included offense of manslaughter. The penalty provision for the charged offense

of second degree murder provides for a mandatory penalty of life imprisonment at

hard labor without benefit of parole, probation, or suspension of sentence. La. R.S.

14:30.1(B). Since the punishment for this offense is necessarily confinement at

hard labor, defendant had to be tried before a twelve-person jury. See La. Const.

Art. I, § 17; La. C.Cr.P. art. 782.2

1 The order of remand provided: “If the non-unanimous jury claim was not preserved for review in the trial court or was abandoned during any stage of the proceedings, the court of appeal should nonetheless consider the issue as part of its error patent review. See La. C.Cr.P. art. 920(2).” 2 Both La. Const. Art. I, § 17 and La. C.Cr.P. art. 782(A) currently provide, in pertinent part, that a case for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor, shall be tried by a jury of twelve persons, ten of whom must concur to render a verdict, and that 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 by a jury of twelve persons, all of whom must concur to render a verdict. Non-unanimous jury verdicts were previously allowed under both La. Const.

Art. I, § 17 and La. C.Cr.P. art. 782, and the circumstances of the instant case. In

defendant’s appeal before this Court, he argued the unconstitutionality of non-

unanimous jury verdicts.3 Based on the law in effect at that time, this Court found

no merit to defendant’s challenge. State v. Gasser, 275 So.3d at 998.

However, subsequent to this Court’s opinion affirming defendant’s

conviction and sentence and while defendant’s writ application challenging this

Court’s opinion was pending in the Louisiana Supreme Court, the United States

Supreme Court handed down its decision in Ramos v. Louisiana, supra. Therein,

the United States Supreme Court found that the Sixth Amendment right to a jury

trial, as incorporated against the States by the Fourteenth Amendment, requires a

unanimous verdict to convict a defendant of a serious offense.4 The Court

concluded:

There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.

(Footnotes omitted). Ramos, 140 S.Ct. at 1397.

Based on Ramos and the fact that the instant case is still on direct review, we

find that since the verdict resulting from defendant’s jury trial was not unanimous

for this serious offense, defendant is entitled to a new trial.

3 In his appeal, defendant also raised as error the sufficiency of the evidence to convict, which this Court rejected as having no merit. State v. Gasser, 275 So.3d at 983-990. 4 For purposes of the Sixth Amendment, federal law defines petty offenses as offenses subject to imprisonment of six months or less and serious offenses as offenses subject to imprisonment over six months. The Sixth Amendment’s right to a jury trial only attaches to serious offenses. See generally Lewis v. United States, 518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996); Hill v. Louisiana, 2013 WL 486691 (E.D. La. 2013).

2 CONCLUSION

Accordingly, in light of the United States Supreme Court’s decision in

Ramos and the circumstances of this case, we vacate defendant’s conviction and

sentence and remand the matter to the trial court for further proceedings consistent

with this opinion.

CONVICTION AND SENTENCE VACATED; MATTER REMANDED

3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JULY 15, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

18-KA-531 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) DARREN A. ALLEMAND (APPELLEE) TERRY M. BOUDREAUX (APPELLEE) THOMAS J. BUTLER (APPELLEE) DANE S. CIOLINO (APPELLANT) COLIN CLARK (OTHER)

MAILED HONORABLE JEFFREY M. LANDRY (OTHER) ELIZABETH BAKER MURRILL (OTHER) MICHELLE W. GHETTI (OTHER) ATTORNEY GENERAL SOLICITOR GENERAL DEPUTY SOLICITOR GENERAL LOUISIANA DEPARTMENT OF JUSTICE LOUISIANA DEPARTMENT OF JUSTICE LOUISIANA DEPARTMENT OF JUSTICE 1885 NORTH 3RD STREET POST OFFICE BOX 94005 POST OFFICE BOX 94005 6TH FLOOR, LIVINGSTON BUILDING BATON ROUGE, LA 70804 BATON ROUGE, LA 70804 BATON ROUGE, LA 70802

HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT GRETNA, LA 70053