State Of Louisiana VS Patrick D. James
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1785 G STATE OF LOUISIANA VERSUS j PATRICK D JAMES 1 udgment Rendered UN 0 7 2013 On Appeal from the Twenty Judicial District Court Second In and for the Parish of St Tammany State of Louisiana No 518531 Honorable Allison H Penzato udge Presiding Hon Walter P Reed Counsel for Appellee District State of Louisiana Attorney Covington Louisiana By Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Hon James D Buddy Caldwell Attorney General Baton Rouge Louisiana By Colin Clark Assistant Attorney General Baton Rouge Louisiana Mary Baton E Roper Rouge Louisiana BEFORE Counsel for Defendant Appellant Patrick D James WHIPPLE C McCLENDON J AND HIGGINBOTHAM McCLENDON J Defendant Patrick D James was charged by bill of information with one count of possession with intent to distribute a schedule II controlled dangerous substance cocaine a violation of LSA 40 S 1count one and one R 967A count of introduction of contraband into a penal institution a violation of LSA S 402 R 14 count two He pled not guilty The state nol the charge prossed on count two and proceeded to trial on count one only After a jury trial defendant was convicted of the responsive offense of possession of cocaine a violation of LSA 40 The trial court subsequently denied defendant S R 967C s motion for post judgment of acquittal The state filed a habitual offender verdict bill of information alleging defendant to be a fourth habitual offender felony Defendant stipulated to the allegations of the habitual offender bill of information and accordingly the trial court adjudicated him to be a fourth habitual felony offender The trial court sentenced defendant to twenty years at hard labor without benefit of probation or suspension of sentence Defendant now appeals alleging two assignments of error regarding his jury non verdict s unanimous For the following reasons we affirm defendant conviction habitual offender s adjudication and sentence FACTS On December 30 2011 defendant was processed into the St Tammany Parish Jail from a halfway house area where inmates wait to be He was housed in the K Dorm a pre trustee assigned a job On December 31 2011 correctional o performed aof the K Dorm to search for cers shakedown contraband Correctionai Officer James Wigstrom searched belongings and discovered a rip in the pillow of his mattress s defendant Upon further examination of the tear Officer Wigstrom found a hard rock substance like 1 The predicate felony offenses alleged in this habitual offender bill of information were 1 a December S 2006 conviction under docket number 414498 in St Tammany Parish for second offense possession of a schedule I controlled dangerous substance marijuana a violation of S2 R 966E LSA 40 2 a November 13 2007 conviction under docket number 435249 in St Tammany Parish for possession of a schedule II controlled dangerous substance cocaine a violation of LSA 40 and 3 a July 27 2011 conviction under docket number 508784 in S R 967C St Tammany Parish for possession of a schedule II controlled dangerous substance cocaine a violation of LSA 40 S R 967C 2 wrapped in clear plastic Chemical testing revealed the substance to be 4 22 grams of crack cocaine At trial the state introduced surveillance videos depicting defendant s intake into the jail One video showed that while defendant was searched upon his arrival to the jail his mesh bag of belongings was not Further an additional video appeared to show defendant having been left alone exchange his assigned mattress for a mattress with a large tear on its rear After deliberating the jury returned a non conviction for possession of cocaine unanimous UNANIMOUS NON JURY VERDICT In two related assignments of error defendant argues that Louisiana Constitution Article I A 17 that allows for non jury verdicts unanimous violates the right to a jury trial and the right to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution Specifically defendant argues that the enactment of its source provision in the Louisiana Constitution of 1898 was motivated by an express and overt desire to discriminate on account of race Possession of cocaine with intent to distribute is punishable by imprisonment at hard labor for not less than two years nor more than thirty years with the first two years of said sentence being without benefit of parole probation or suspension of sentence See LSA 40 Article I S4 R967B b A 17 and Louisiana Code of Criminal Procedure article 782A provide that in cases where punishment is necessarily at hard labor the case shall be tried by a jury composed of twelve jurors ten of whom must concur to render a verdict Under both state and federal jurisprudence a criminal conviction by a non unanimous jury does not violate the right to trial by jury specified by the Si h Amendment and made applicable to the states by the Fourteenth Amendment See Apodaca v Oregon 406 U 404 92 S 1628 32 L 184 1972 S Ct 2d Ed Z We question whether the defendant properly raised the issue in the court below reserving it for appellate review because he did not file any pretrial or posttrial motions to declare the of complained provision to be unconstitutional Nevertheless out of an abundance of caution we will address the merits of these assignments of error 3 State v Belgard 410 So 720 726 La 1982 State v Shanks 97 2d 27 1885 La 1 Cir 6 715 So 157 164 App 98 29 2d 65 This court and the Louisiana Supreme Court have previously rejected the argument raised in defendant assignments of error See State v Bertrand s 2215 2311 08 08 La 3 6 So 738 742 State v Smith 06 09 17 3d 43 0820 La App 1 Cir 12 952 So 1 16 writ denied 07 La 9 06 28 2d 0211 07 28 964 So 352 2d In Bertrand the Louisiana Supreme Court specifically found that a non twelve jury verdict is constitutional and that Article unanimous person 782 does not violate the Fifth Sixth and Fourteenth Amendments Moreover the Bertrand court rejected the argument that non jury verdicts unanimous have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca Although Apodaca was a plurality rather than a majority decision the United States Supreme Court has cited or discussed the opinion various times since its issuance and on each of these occasions it is apparent that its holding as to non unanimous jury verdicts represents well law settled 43 Thus Louisiana Constitution article I Bertrand 6 So at 742 3d A 17 and Louisiana Code of Criminal Procedure article 782A are not unconstitutional and therefore not in violation of defendanYs federal constitutional rights Accordingly these assignments of error are without merit CONCWSION For the foregoing reasons we affirm the defendant conviction habitual s offender adjudication and sentence CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 3 In Bertrand the court only considered Article 782 while defendant in the instant case attacks Article I A 17 itself We find this approach to be a distinction without a difference because Article 782 closely tracks the language of Article I A 17 4 Apodaca involved a challenge to the non jury verdict provision of Oregon state unanimous s constitution ohnson v Louisiana 406 U 356 92 S 1620 32 L 152 1972 S Ct 2d Ed decided with Apodaca also upheld Louisiana then constitutional and statutory s existing provisions allowing nine jury verdicts three to 4
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