State of Louisiana Versus Kyriene Vallery

STATE OF LOUISIANA NO. 20-KA-149

VERSUS FIFTH CIRCUIT

KYRIENE VALLERY COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 69,50, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING

December 16, 2020

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

CONVICTION AND SENTENCE VACATED; REMANDED
SJW
JGG
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Ricky L. Babin
Donald D. Candell
Lindsey D. Manda

COUNSEL FOR DEFENDANT/APPELLANT,
KYRIENE VALLERY
Mark D. Plaisance
Marcus J. Plaisance

WINDHORST, J.

Defendant, Kyriene Vallery, appeals his conviction and sentence. For the

following reasons, we vacate and remand to the trial court for further proceedings.

PROCEDURAL HISTORY

On January 27, 2014, a St. James Parish Grand Jury returned an indictment

charging defendant, Kyriene Vallery, with the second degree murder of Christian

Allen, in violation of La. R.S. 14:30.1. Defendant was arraigned and pled not guilty.

On October 1, 2015, a twelve-person jury found defendant guilty as charged.

Defendant filed a motion for new trial, which the trial court granted finding that

portions of the trial transcript were missing and/or incomplete. On November 1,

2018, a twelve-person jury found defendant guilty of the responsive verdict of

manslaughter. The jury verdict was ten to two. Defendant filed a motion to set aside

the jury’s verdict, which the trial court denied. Sentencing was deferred and a pre-

sentence investigation report was ordered. On May 28, 2019, defendant was

sentenced to 40 years at hard labor with the Department of Corrections. Defendant

filed a motion to reconsider sentence, which the trial court denied. This appeal

followed.

DISCUSSION

In his sole assignment of error, defendant contends that he was convicted of

manslaughter by an unconstitutional jury verdict and therefore, he is entitled to a

new trial pursuant to Ramos v. Louisiana, 590 U.S. —, 140 S.Ct. 1390, 206 L.Ed.2d

583 (2020).

Defendant contends that the non-unanimous jury verdict is a structural error.

He contends that the failure to object to the non-unanimous verdict does not preclude

application of Ramos nor is the verdict subject to harmless error. Defendant further

argues that a non-unanimous verdict is subject to error patent review.

20-KA-149 1

The State acknowledges that a unanimous verdict for serious offenses is

required under Ramos. However, the State argues that because defendant did not

assert a claim regarding a non-unanimous verdict during pre-trial or trial

proceedings, a question remains as to whether the issue was properly raised in the

trial. Therefore, the State contends that the matter should be remanded to the trial

court to determine this issue. The State further asserts that defendant is not entitled

to have his conviction and sentence vacated on an error patent review.

Defendant was charged with second degree murder. Since the punishment for

this offense 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; La. R.S. 14:30.1. Non-

unanimous verdicts were previously allowed under La. Const. Art. I, §17 and La.

C.Cr.P. art. 782, and the circumstances of this case. The constitutionality of the

statutes was previously addressed by many courts, all of which rejected the

argument. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184

(1972); State v. Bertrand, 08-2215, 08-2311 (La. 03/17/09), 6 So.3d 738, 742-43.

However, recently the United States Supreme Court in Ramos 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.1 Id. at 1397.

Moreover, despite the State’s argument to the contrary, Louisiana courts have

repeatedly held that a jury verdict is discoverable in the pleadings and proceedings

for purposes of an errors patent review. State v. Harrel, 19-371 (La. App. 5 Cir.

07/08/20), — So.3d —, citing State v. Craddock, 307 So.2d 342 (La. 1975); State v.

Sanford, 248 La. 630, 181 So.2d 50 (1965); State v. Anderson, 07-752 (La. App. 5

1 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).

20-KA-149 2

Cir. 02/06/08), 979 So.2d 566, 571. Furthermore, the Louisiana Supreme Court

recently held that even “if the non-unanimous jury claim was not preserved for

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

court of appeal should nonetheless consider the issue as part of its error patent

review.” See State v. Gasser, 19-1220 (La. 06/03/20), 296 So.3d 1022 (per curiam),

State v. Ford, 19-1221 (La. 06/03/20), 296 So.3d 1026 (per curiam); State v. Mesa,

19-908 (La. 06/03/20), 296 So.3d 1044 (per curiam); State v. Villafranca, 19-2093

(La. 06/03/20), 296 So.3d 1057 (per curiam).

Based on Ramos, and that this case is on direct appeal,2 we find that since the

verdict was not unanimous for this serious offense as required by Ramos,

defendant’s conviction and sentence are vacated and the matter is remanded to the

trial court for further proceedings.

Lastly, our review of the record under State v. Raymo, 419 So.2d 858, 861

(La. 1982), reflects that defendant/appellant is not entitled to an acquittal under the

standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); and

State v. Hearold, 603 So.2d 731, 734 (La. 1992).

DECREE

For the reasons stated above, defendant’s conviction and sentence are vacated

and this matter is remanded to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED

2 See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004), observing
that “[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule applies to all
criminal cases still pending on direct review,” citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,
93 L.Ed.2d 649 (1987) (“a new rule for the conduct of criminal prosecutions is to be applied retroactively to
all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the
new rule constitutes a ‘clear break’ with the past.”).

20-KA-149 3

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
DECEMBER 16, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-149
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
DONALD D. CANDELL (APPELLEE) LINDSEY D. MANDA (APPELLEE) MARK D. PLAISANCE (APPELLANT)
GRANT L. WILLIS (APPELLEE)

MAILED
HONORABLE RICKY L. BABIN HONORABLE JEFFREY M. LANDRY MARCUS J. PLAISANCE (APPELLANT)
(APPELLEE) (APPELLEE) ATTORNEY AT LAW
DISTRICT ATTORNEY ATTORNEY GENERAL POST OFFICE BOX 1123
23RD JUDICIAL DISTRICT COURT LOUISIANA DEPARTMENT OF JUSTICE PRAIRIEVLLE, LA 70769
POST OFFICE BOX 66 1885 NORTH 3RD STREET
CONVENT, LA 70723 6TH FLOOR, LIVINGSTON BUILDING
BATON ROUGE, LA 70802