State of Louisiana Versus Henry Ford, III

STATE OF LOUISIANA NO. 19-KA-242

VERSUS FIFTH CIRCUIT

HENRY FORD, III COURT OF APPEAL

STATE OF LOUISIANA

ON REMAND FROM THE LOUISIANA SUPREME COURT
AN APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-1016, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING

July 08, 2020

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and John J. Molaison, Jr.

CONVICTIONS REVERSED; SENTENCES VACATED; REMANDED
JJM
FHW
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Matthew Whitworth
Brittany Beckner

COUNSEL FOR DEFENDANT/APPELLANT,
HENRY FORD, III
Holli A. Herrle-Castillo

MOLAISON, J.

This case comes before us following a remand from the Louisiana Supreme

Court with specific directions to consider defendant’s appeal in light of Ramos v.

Louisiana, 590 U.S. - - , 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), which holds 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. State v. Ford, 20-241 (La. 6/3/20), 2020 WL 3424531 (per

curiam). For the reasons that follow, we reverse defendant’s convictions, vacate

his sentences and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

As detailed in our prior opinion, State v. Ford, 19-242 (La. App. 5 Cir.

12/26/19), 287 So.3d 875, defendant, Henry Ford, III, was charged with possession

of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one),

resisting an officer with the use of violence in violation of La. R.S. 14:108.2 (count

two), and unauthorized entry of an inhabited dwelling in violation of La. R.S.

14:62.3 (count three). Prior to trial, defendant filed a “Motion to Declare Article

782(A) Unconstitutional Because It Allows for a Non-Unanimous Verdict In This

Second Class Case.” However, the record does not show that the motion was ruled

upon by the trial court. On October 23, 2018, following a jury trial, defendant was

found guilty as charged as to counts one and two, and guilty of the responsive

verdict of attempted unauthorized entry of an inhabited dwelling on count three.

The verdict was ten to two on counts one and three, and eleven to one on count

two.

On appeal, defendant raised as error, in relevant part, that the jury votes of

eleven to one and ten to two were unconstitutional. This Court found that due to

the absence of a trial court ruling and defendant’s failure to properly serve the

attorney general with notice of his motion, defendant was not entitled to review of

19-KA-242 1

the issue. Nevertheless, we concluded that even if this issue was properly before us

on appellate review, the Louisiana Supreme Court had long held that non-

unanimous jury verdicts for twelve-person juries are not unconstitutional in non-

capital cases. See Ford, 287 So.3d at 881. We further found that sufficient

evidence existed to sustain defendant’s conviction on count one.1 Defendant’s

convictions and sentences on counts two and three were affirmed, and we

remanded the case for clarification of defendant’s multiple offender sentence

imposed on count one and for the correction of errors patent on the face of the

record. Ford, 287 So.3d at 882.

Defendant thereafter sought writs to the Louisiana Supreme Court, during

the pendency of which the U.S. Supreme Court made its ruling in Ramos, supra.

In granting defendant’s writ in the instant case, the Louisiana Supreme Court cited

to Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987),

in support of its finding that Ramos v. Louisiana was applicable to defendant

because the matter was pending on direct review when Ramos was decided. In its

per curiam, the Court directed us to consider the issue of non-unanimous jury

verdicts in this case as part of an error patent review if the claim was not preserved

for review in the trial court or was abandoned during any stage of the proceedings.

LAW AND ANALYSIS

Defendant was charged with possession of a firearm by a convicted felon in

violation of La. R.S. 14:95.1 (count one), resisting an officer with the use of

violence in violation of La. R.S. 14:108.2 (count two), and unauthorized entry of

1
We acknowledge the current varied approaches by our fellow Circuits regarding a sufficiency of
evidence analysis in cases where a Ramos issue is involved. For example, in State v. Hunter, 19-901 (La.
App. 4 Cir. 5/27/20), 2020 WL 2751914, the Fourth Circuit addressed the defendant’s assigned error of
insufficient evidence before it addressed his assignment of error regarding the constitutionality of the non-
unanimous verdict. However, in State v. Jenkins, 20-2 (La. App. 3 Cir. 6/10/20), 2020 WL 3071594, the
Third Circuit found that because Ramos applied and invalidated the defendant’s conviction by a non-
unanimous jury verdict, any discussion of the defendant’s other assignment of error regarding the
sufficiency of the evidence was moot. In the instant appeal, because we have previously addressed
defendant’s sufficiency of evidence claim and found it to be without merit, we will pretermit further
analysis in this opinion.

19-KA-242 2

an inhabited dwelling in violation of La. R.S. 14:62.3 (count three). The penalty on

count one requires that the sentence be served at hard labor. The penalties on

counts two and three allow the sentences to be served with or without hard labor.

La. C.Cr.P. art. 782 provides in pertinent part as follows:

A. A case in which punishment may be capital shall be tried by
a jury of twelve jurors, all of whom must concur to render a verdict. A
case for an offense committed prior to January 1, 2019, 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. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, all of whom must concur to
render a verdict. A case in which the punishment may be confinement
at hard labor shall be tried by a jury composed of six jurors, all of
whom must concur to render a verdict.

La. C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment
or information in a separate count for each offense if the offenses
charged, whether felonies or misdemeanors, are of the same or similar
character or are based on the same act or transaction or on two or
more acts or transactions connected together or constituting parts of a
common scheme or plan; provided that the offenses joined must be
triable by the same mode of trial.

La. C.Cr.P. art. 493.1 provides:

Notwithstanding the provisions of Article 493, offenses in
which punishment is necessarily confinement at hard labor may be
charged in the same indictment or information with offenses in which
the punishment may be confinement at hard labor, provided that the
joined offenses are of the same or similar character or are based on the
same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or plan.
Cases so joined shall be tried by a jury composed of twelve jurors, ten
of whom must concur to render a verdict.

Since the punishment for the offense in count one is necessarily confinement

at hard labor, a jury of twelve persons was required. See La. Const. Art. I, § 17; La.

C.Cr.P. art. 782. Also, counts two and three were charged in the same bill of

information as part of a common scheme or plan. Therefore, a jury of twelve

persons was required for those counts as well. See La. C.Cr.P. arts. 493, 493.1,

782. While non-unanimous verdicts were previously allowed under these

19-KA-242 3

provisions, the non-unanimous verdicts are no longer permissible pursuant to the

recent holding in Ramos.

According to Ramos, Louisiana will have to retry defendants who were

convicted of serious offenses by non-unanimous juries and whose cases are still

pending on direct appeal. Based on Ramos and the fact that the instant case is on

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

offenses before us, the convictions and sentences must be vacated. Defendant is

entitled to a new trial. See State v. Rivas, 19-378 (La. App. 5 Cir. 5/21/20), 2020

WL 2569820.

DECREE

Accordingly, for the foregoing reasons, and in compliance with the

Louisiana Supreme Court’s directive to follow the recent holding in Ramos, we

reverse defendant’s convictions, vacate his sentences and remand for further

proceedings.

CONVICTIONS REVERSED; SENTENCES
VACATED; REMANDED

19-KA-242 4

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
JULY 8, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-242
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) HOLLI A. HERRLE-CASTILLO GRANT L. WILLIS (APPELLEE)
ANDREA F. LONG (APPELLEE) (APPELLANT)
THOMAS J. BUTLER (APPELLEE) J. TAYLOR GRAY (APPELLEE)

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