State v. BrownState v. Brown
LThe state charged defendant/respondent by bill of information with one count of simple burglary of a religious building, La.R.S. 14:62.6, and one count of simple burglary in violation of La.R.S. 14:62. The two crimes were apparently unrelated and the state ultimately severed the second count before bringing respondent to trial on March 16, 2010. A jury of 12 persons convicted respondent as charged of simple burglary of a religious building by a non-unanimous, 10-2 vote. The trial court sentenced respondent to 12 years imprisonment at hard labor without benefit of pro
There is no doubt that an error with respect to the size of the selected jury occurred in the present case. Because it is punished by a maximum sentence of 12 years imprisonment with or without hard labor, at least two years of which are without benefit of probation, parole, or suspension of sentence, simple burglary of a religious building is a relative felony ordinarily tried before a jury of six persons, all of whom must concur to render a verdict. La. Const, art. I, § 17 (“A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.”); see also La.C.Cr.P. art. 782 (same). Longstanding jurisprudence of this Court had considered errors involving trials conducted in the wrong jury forum, whether the selected panel included a greater or lesser number of jurors than required by law, non-waivable jurisdictional defects which rendered any verdict returned absolutely null. See, e.g., State v. Nedds,
In the present case, the court of appeal acknowledged the holding in Jones but also noted that in Jones, the verdict was unanimous and that this Court had therefore found the error harmless. Brown, 10-2107 at 4,
However, we need not address the question of whether the error in jury composition actually prejudiced respondent’s case. The record demonstrates that defense counsel did not object to the selection of a 12-person jury, but instead counsel actively participated in constituting the wrong jury forum. In post-verdict motions for a new trial, arrest of judgment, and judgment of acquittal, respondent attacked the sufficiency of the evidence supporting his conviction, but he did not raise the error with respect to jury composition, although La.C.Cr.P. art. 859(4) specifically provides, as one ground for arresting judgment, that “[t]he tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code.” Even in the court of appeal, respondent, who questioned the validity of a non-unanimous verdict on Sixth Amendment grounds, did not address the error in jury composition as a matter of Louisiana law. As in Jones, the court of appeal noted the error ex proprio motu in conducting an error patent review of the record.
However, because Jones made clear that the error of trying a six-person jury offense before a 12-person jury falls within the “vast numbers” of trial errors subject to harmless-error analysis, as opposed to errors interjecting a structural or jurisdictional defect in the proceedings, a necessary corollary of the decision is that the error also falls within the scope of Louisiana’s procedural default rules which generally require a defendant to timely preserve trial errors in the trial court for later appellate review. See, e.g., La.C.Cr.P. art. 841(A)(“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”). Grounds for arresting judgment as a matter of La.C.Cr.P. art. 859, | ^including jury composition errors under La.C.Cr.P. art. 782, may provide narrow exceptions to Louisiana’s general contemporaneous objection rule. See State v. Thomas,
Under these circumstances, Jones has modified our former rule that “an error in the size of the jury is discoverable on the face of the record and therefore we may note it ex proprio motu without formal objection or an assignment of error” as a basis for reversing a defendant’s conviction and sentence. State v. Smith,
Accordingly, the decision of the court of appeal is reversed and this case is remanded for consideration of the assignments of error pretermitted on original appeal.
REVERSED; CASE REMANDED
Notes
. As in Jones, we have no occasion to consider here whether trial before a panel composed of fewer jurors than required by law, i.e., trial of a 12-person jury offense in a six-person jury forum, constitutes more than trial error and retains its jurisdictional character as a structural defect in the proceedings. We also have no occasion to consider here whether, in a postconviction claim of ineffective assistance of counsel, the failure of counsel to object to the error in jury composition, which may constitute counsel error for purposes of the two-part test of ineffective assistance claims set forth in Strickland v. Washington,