State of Louisiana Versus Ivory D. Franklin, II AKA Deuce

STATE OF LOUISIANA NO. 19-KA-119

VERSUS FIFTH CIRCUIT

IVORY D. FRANKLIN, II COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-5061, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

September 09, 2020

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.

VACATED; REMANDED FOR NEW TRIAL
MEJ
RAC
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Andrew Decoste
Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT,
IVORY D. FRANKLIN, II AKA DEUCE
Cynthia K. Meyer

JOHNSON, J.

Defendant, Ivory D. Franklin, II, appeals his conviction and sentence in

Twenty-Fourth Judicial District Court Case Number 15-4323. Defendant was

charged with one count of second degree murder and one count of attempted

second degree murder. Defendant’s first trial on the matter resulted in a mistrial on

October 26, 2017 because of a hung jury. On October 8, 2018, eleven out of

twelve jurors found that Defendant was guilty as charged of second degree murder,

and ten out of twelve jurors found Defendant guilty of attempted second degree

murder. Defendant assigns as error the non-unanimous jury verdict, which

violated his due process and equal protection rights under the Sixth and Fourteenth

Amendments. We vacate the convictions and remand the matter for the following

reasons.

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). In this case, Defendant faced a life sentence, if

convicted of second degree murder, and a sentence of not less than ten nor more

than fifty years, both at hard labor, without benefit of parole, probation, or

suspension of sentence for the attempted second degree murder conviction. See La.

R.S. 14:30.1(B), La. R.S. 14:27(D)(1)(a).

In Ramos v. Louisiana, --- U.S. ---, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020),

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. It held, “Wherever

19-KA-119 1

we might look to determine what the term ‘trial by an impartial jury trial’ meant at

the time of the Sixth Amendment’s adoption—whether it’s the common law, state

practices in the founding era, or opinions and treatises written soon afterward—the

answer is unmistakable. A jury must reach a unanimous verdict in order to

convict.” Id. at 1395. The Court concluded, “There can be no question either that

the Sixth Amendment’s unanimity requirement applies to state and federal trials

equally…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.”

Id. at 1397. Now, Ramos requires new trials for Louisiana defendants convicted of

serious offenses by non-unanimous juries whose cases are still pending on direct

appeal. Accordingly, we find that, because the verdicts were not unanimous for

the serious offenses before us, Defendant’s convictions and sentences must be

vacated.1

DECREE

Because of the United States Supreme Court’s holding in Ramos, on direct

appeal, we vacate Defendant’s convictions and sentences and remand the matter

for a new trial.

VACATED; REMANDED FOR NEW TRIAL

1
The sufficiency of the evidence was considered as required by State v. Raymo, 419 So.2d 858 (La.1982)
and State v. Hearold, 603 So.2d 731 (La.1992). We find that the State offered evidence at trial to establish
(or offered evidence that a jury could find sufficient to establish) all of the elements of the crimes of
which Defendant was accused. Therefore, Defendant is not entitled to an acquittal under Hudson v.
Louisiana, 450 U.D. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

19-KA-119 2

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
SEPTEMBER 9, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-119
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)
GRANT L. WILLIS (APPELLEE) J. TAYLOR GRAY (APPELLEE)

MAILED
HONORABLE JEFFREY M. LANDRY HONORABLE PAUL D. CONNICK, JR.
(APPELLEE) (APPELLEE)
ATTORNEY GENERAL DISTRICT ATTORNEY
LOUISIANA DEPARTMENT OF JUSTICE ANDREW DECOSTE (APPELLEE)
1885 NORTH 3RD STREET LYNN SCHIFFMAN (APPELLEE)
6TH FLOOR, LIVINGSTON BUILDING ASSISTANT DISTRICT ATTORNEYS
BATON ROUGE, LA 70802 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053