Defendant, Darius Jones, was convicted of attempted armed robbery (count one) and possession of a firearm by a convicted felon (count two). Defendant was sentenced to 25 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for count one, to run concurrently with his 20-year sentence at hard labor without benefit of parole, probation, or suspension of sentence for count two. In this appeal, defendant challenges his conviction and sentence on count one for attempted armed robbery. For the following reasons, defendant's convictions and sentences are affirmed.
On July 19, 2011, Tyrone Smith was a victim of a robbery at his residence at 612 Governor Hall Street in Gretna. Defendant knocked on Mr. Smith's door and Mr. Smith invited him in because he knew defendant's sister, Sheree Jones. Defendant asked Mr. Smith for money and when Mr. Smith told him no, defendant pulled out a gun and demanded the money. Defendant ran out of Mr. Smith's house after he was given the money and was seen entering his sister's apartment. Defendant was immediately apprehended coming out of Ms. Jones apartment. After obtaining consent from Ms. Jones to search her apartment for the weapon, the police located and retrieved the weapon used in the robbery.
Defendant was charged with armed robbery in violation of La. R.S. 14:64 (count one) and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count two). A twelve-person jury found defendant guilty of the responsive verdict of attempted armed robbery on count one and guilty of possession of a firearm by a convicted felon on count two.
Defendant contends that the non-unanimity instruction that resulted in the non-unanimous verdict of attempted armed robbery on count one was a violation of his due process and equal protection rights and thus, the trial court's denial of his motion for new trial was in error.
Before trial, defendant filed "Motion to Declare Article 782(A) Unconstitutional
The defendant did not object to the jury charges, which included a charge regarding the concurrence of ten of the twelve jurors for a verdict on each count. Nevertheless, after the verdict was rendered, defendant filed a motion for new trial, which included an argument that the non-unanimous verdict was in violation of the constitution. The trial court denied the motion. Thus, the issue addressed in defendant's motion for new trial is properly before this Court. See State v. Hammond, 12-1559 (La.App. 1 Cir. 3/25/13), 115 So.3d 513, 514 n. 3.
La. Const. Art. I, § 17A provides that a criminal 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.C.Cr.P. art. 782A 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 challenges his attempted armed robbery verdict, with a ten of twelve concurrence. Defendant's confinement for the crime charged was necessarily at hard labor. See La. R.S. 14:64; La. R.S. 14:95.1. Therefore, under La. Const. Art. I, § 17A and La.C.Cr.P. art. 782A, ten of the twelve jurors were required to concur to render a verdict.
Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the Sixth and Fourteenth Amendments to the United States Constitution. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238.
Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the Apodaca opinion numerous times since its issuance and its holding as to non-unanimous jury verdicts represents well-settled law. State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, 742. Defendant's reliance on Apprendi, supra, Blakely, supra, and McDonald, supra, to support his proposition that the decision in Apodaca has been called into question and that a non-unanimous jury verdict violates his constitutional rights, is without merit.
This issue has been addressed by the Louisiana Supreme Court, this Court, and other appellate courts in this State, and all have held that a defendant's reliance on recent post-Apodaca jurisprudence used to question the viability of a less than unanimous jury verdict ignores the holdings of the courts of this State. See State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238; State v. Brooks, 12-226
In Bertrand, supra, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. The Bertrand court also rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca. Id. at 742-43.
In Bertrand,
Relying on Bertrand, the Louisiana Fourth Circuit Court of Appeal upheld the constitutionality of non-unanimous jury verdicts in State v. Barbour, 09-1258 (La. App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-0934 (La.11/19/10), 49 So.3d 396, cert denied, ___ U.S. ___, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). The United States Supreme Court denied certiorari in Barbour, thereby declining to address the issue of non-unanimous jury verdicts.
In State v. Napoleon, supra, this Court recently addressed a defendant's incorrect contention that Apodaca's holding that non-unanimous jury verdicts do not violate the Constitution was called into question by Apprendi v. New Jersey, supra, and therefore, should no longer be followed by this Court. This Court explained:
The issue before the court in Apprendi was whether the defendant could be sentenced to additional incarceration upon a finding of guilt of an additional element of the crime by a judge after discharge of the jury, and by proof less than beyond a reasonable doubt. Clearly the New Jersey
In State v. Mitchell, 11-1018 (La.App. 5 Cir. 6/28/12), 97 So.3d 494, the defendant acknowledged the precedent of Apodaca but argued that subsequent developments in the Supreme Court's jurisprudence called the holding into question, citing Blakely v. Washington and McDonald v. City of Chicago, supra. This Court determined that the United States Supreme Court did not overturn Apodaca in either Blakely or McDonald, and quoting McDonald: "`The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials.'" (McDonald, 130 S.Ct. at 3035 n. 14, 130 S.Ct. 3020) (emphasis omitted). This Court in Mitchell found that the defendant's assigned error was without merit after considering that the United States Supreme Court and the Louisiana Supreme Court have held that a unanimous jury verdict is not required in state criminal trials. See also State v. Jackson, 12-0090 (La.App. 4 Cir. 4/24/13), 115 So.3d 1155; and State v. Santos-Castro, 12-0568 (La.App. 4 Cir. 7/31/13), 120 So.3d 933.
Although defendant acknowledges that the Supreme Court and this Court have recognized the continued viability of La. C.Cr.P. art. 782, he argues that the holding in Apodaca is incorrect. This Court also recognized in Mitchell, supra, that as an intermediate appellate court, this Court is obliged to follow the precedent established by the Louisiana Supreme Court, noting that this Court has consistently followed the Louisiana Supreme Court's jurisprudence on this issue. Accordingly, we find that the trial court did not err in denying defendant's motion for new trial.
The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Only the following errors patent require corrective action.
The commitment lacks clarity as to the sentences imposed. The commitment reflects that the sentence was ordered to be served without benefit of parole, probation, or suspension of sentence.
Further, the commitment reflects that defendant's sentences were also ordered to run concurrently "with any other sentence." However, the transcript more specifically reflects that his sentences were ordered to run concurrently "with any other sentence you may be serving." The commitment reflects a more open-ended statement regarding running the sentence concurrently "with any other sentence." Thus, we remand the matter for correction of the commitment in accordance with La. C.Cr.P. art. 892B(2) and State ex rel. Roland v. State, supra. See State v. Nelson, 09-807 (La.App. 5 Cir. 3/23/10), 39 So.3d 658, 666.
For the reasons stated above, we affirm defendant's convictions and sentences and remand for corrections in compliance with this opinion. We further order that, in addition to the record copy, a separate copy of this opinion be delivered to the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson.
CONVICTIONS AND SENTENCES AFFIRMED AND REMANDED WITH INSTRUCTIONS.