State v. SantiagoState v. Santiago
- Reporters:
- ,
- Before:
- Weimer, Hughes, Crichton, Griffin (per curiam)
We granted the State‘s application to consider whether the court of appeal correctly found that defendant‘s claim that he was denied peremptory challenges to which he was entitled was preserved for appellate review. After careful review, we find that the court of appeal erred in determining that defendant preserved the claim for appeal based on a “tacit objection.” The record clearly shows that counsel did not object, as required by
Defendant was charged with failure to register and notify as a sex offender, in violation of
During jury selection, the district court limited the State and defense to six peremptory challenges each, although the law requires twelve when, as here, the offense is necessarily punishable by imprisonment at hard labor.1 After voir dire of the first jury panel, the trial court informed the parties that the State had three remaining peremptory challenges, and the defense had exhausted its six peremptory challenges. Defense counsel did not object. After voir dire of the second panel, the defense then attempted to exercise a seventh peremptory challenge against a prospective juror who had attended school with the prosecutor‘s mother. After the trial court did not allow defense counsel a seventh peremptory challenge, counsel did not object, but instead stated, “I thought we had seven.”
Midway through the State‘s presentation of its case at trial, the trial judge informed the parties that upon reading
The court of аppeal reversed the conviction in a divided decision. State v. Santiago, 2022-0607 (La. App. 4 Cir. 3/7/23), 359 So.3d 540 (Lobrano, J.,
Judge Lobrano dissented, correctly observing that “[t]he contemporaneous objection rule does not allow a ‘tacit’ or ‘implicit’ objection.” Instead,
We agree with the dissent that
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
An objection that fails to make known to the court the action a party desires the court to take, and the grounds therefor, is not tacit. Rather, it is no objection at all. To the extent the court of appeal found otherwise, it relied on a legal fiction to construct something from nothing, in direct contradiction of the plain language of
Our law is settled that an objection need not be raised by incantation. “It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”
There are two purposes to this rule: to put the trial court on notice of the alleged irregularity or error, so that the trial judge can cure the error, and to prevent a party from gambling for a favorable outcome and then appealing on errors that could have been addressed by an objection if the outcome is not as hoped.
State v. Lanclos, 2007-0082, p. 6 (La. 4/8/08), 980 So.2d 643, 648.
Even accepting for the sake of argument that counsel made known to the trial court the action counsel wished to take by attempting to exеrcise a seventh peremptory challenge, counsel did not state the grounds for any objection. Thus, the trial court was not put on notice of the error during voir dire and given an opportunity to cure it. Because counsel did not object to the trial court‘s erroneous ruling at the time of its occurrence, the error cannot be availed of after verdict in accordance with
While it is settled that an objection need not be raised by incantation, Article 841 requires that a defendant make a contemporaneous objection to a ruling, and the article further provides: “The nature of the objection and grounds therefor shall be stated at the time of objection.” That did not happen here. Instead, the record shows that defendant did not object during voir dire when he was denied the full twelve peremptory challenges to which he was entitled, and he later assigned that as error on appeal. Therefore, the court of appeal erred in reviewing that assignment of error and in finding that a “tacit objection” sufficed to preserve the issue for appellate review. Accordingly, we reverse the ruling of the court of appeal. We reinstate defendant‘s conviction and sentence, which we hereby affirm.
REVERSED AND REINSTATED
As a general rule, multiple harmless errors do not result in a reversal. State v. Brown, 18-1999, p. 117 (La. 9/30/21), 330 So.3d 199, 284; State v. Holliday, 17-1921, p. 87 (La. 1/29/20), 340 So.3d 648, 714; see also Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987). However, in this matter, the State, the defense, and the district court all errеd by applying the wrong number of peremptory challenges available. See
Where otherwise non-reversible errors aggregate in such a way as to result in a denial of the right to a fair trial, cumulative error doctrine justifies reversal. See United States v. Lara, 23 F.4th 459, 484 (5th Cir. 2022) (“The cumulative errоr doctrine provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.“) (internal citation omitted). The doctrine is applied only in rare instances, in cases in which the errors so fatally infected the trial that they violated the trial‘s fundamental fairness. Id. The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant‘s constitutional right to a fair trial. Id. In this particular case, there were too many errors by too many participants, including the district court, to have confidence in the outcome when the district court limited the number of peremptory challenges to six on a twelve-person jury. I would reverse the conviction and remand to the district court for a new trial.
I write separately to emphasize the critical importance of the contemporaneous objection rule,
As explained in the per curiam opinion, requiring contemporaneous objections promotes judicial efficiency by “put[ting] the trial judge on notice of the alleged irregularity so that he may cure the problem” at the time it occurs. State v. Thomas, 427 So.2d 428, 433 (La. 1982). Barring appellate review of an irregularity or error that was not objected to at the time of the occurrence “prevent[s] a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.” Id.
In this case, when the trial court erroneously violated defendant‘s statutory right to twelve peremptory challenges, his attorney did not object and only challenged the decision after it was too lаte for the trial judge to cure the error. Accordingly, as I have ruled previously, that issue was not preserved for appellate review and should be deemed waived. See
The court of appeal likewise erred in considering defendant‘s claim of ineffective assistance of counsel on direct review. This Court has long held that such claims are best reserved for collateral review, see e.g., State v. Deloch, 380 So.2d 67 (La. 1980), and for good reason. Unlike on direct appeal, in post-conviction proceedings, the trial court may conduct an evidentiary hearing. New evidence relating to counsel competency that is not contained in the appellate record may be admitted into evidence for full consideration. While there are occasional exceptions to this rule, see e.g., State v. Ratcliff, 416 So.2d 528, 530 (La. 1982), this is not one of those rare cases. Accordingly, I agree with the per curiam opinion reversing the ruling of the court of appeal that found merit in defendant‘s claim of ineffective assistance of counsel.1
Notes
In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant.
The offense for which defendant was tried and convicted is punishable “with hard labor for not less than two years nor more than ten years without benefit of parolе, probation, or suspension of sentence.”
The dissent envisions relief for defendant under the cumulative error doctrine which provides that in rare cases an aggregation of non-reversible errors can yield a denial of the constitutional right to a fair trial. United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir.2012) (en banc). I begin by pointing out that this case does not involve multiple errors to aggregate. There was only one error alleged: the denial of the correct number of peremptory challenges. Furthermore, the per curiam opinion does not conclude the error was harmless, only that it was not рreserved for review. For these reasons, the cumulative error theory of relief advanced by the dissent does not apply to this case. Moreover, even if this case did involve multiple, harmless errors, this Court has never endorsed cumulative error arguments. Instead, this Court has universally found that harmless errors, however numerous, do not aggregate to reach the level of reversible error. State v. Sheppard, 350 So.2d 615, 651 (La. 1977) (“We are unwilling to say that the cumulative effect of assignments of error lacking in merit warrants reversal of a conviction.“); see also, e.g., State v. Strickland, 94-0025, pp. 51–52 (La. 11/1/96), 683 So.2d 218, 239; State v. Tart, 93-0772, p. 55 (La. 2/9/96), 672 So.2d 116, 154; State v. Copeland, 530 So.2d 526, 544–45 (La. 1988) (citing State v. Graham, 422 So.2d 123, 137 (La. 1982)). Other courts treating the issue in greater depth have reached the same conclusion. Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (rejecting cumulative error claim and finding that “twenty times zero equals zero“). Accordingly, consistent with this Court‘s long-held disapproval of this theory of relief, I too reject it.
As a preliminary matter, the court of appeal determined that it would treat defendant‘s appeal as timely because, although it was not filed within 30 days after the ruling on the motion to reconsider sentence, it was filed within the post-conviction limitations period, citing State v. Counterman, 475 So.2d 336 (La. 1985).
After finding that the claim was preserved for reviеw and required reversal, the court of appeal also found merit to defendant‘s alternative claim that defense counsel rendered ineffective assistance by failing to object to the trial court‘s erroneous ruling. That determination was unnecessary given that the court of appeal had already found the error required reversing defendant‘s conviction.
While we reverse the court of appeal and reinstate defendant‘s conviction, we do not reach his claim of ineffective assistance of counsel. As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court wherе a full evidentiary hearing may be conducted if warranted. See, e.g., State v. Hamilton, 92-2639, p. 4 (La. 7/1/97), 699 So.2d 29, 31. We think it appropriate to relegate defendant‘s claim of ineffective assistance here to collateral review, where he will have the burden of showing that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland v. Washington, 466 U.S. 668, 694–95, 104 S.Ct. 2052, 2068–69, 80 L.Ed.2d 674 (1984) (“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.“); cf. State v. Chandler, 2022-0156, p. 5 (La. 5/5/23), 362 So.3d 347, 352 (“The seating of the juror alone does not establish рrejudice under Strickland.“).
Statutory interpretation begins with “the language of the statute itself.” Cat‘s Meow v. City of New Orleans, 1998-601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198; see also Connecticut Nat‘l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislaturе says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.“) (citations and internal quotation marks omitted).