State of Louisiana v. Dominique Jenkins

STATE OF LOUISIANA * NO. 2018-KA-0253

VERSUS *
COURT OF APPEAL
DOMINIQUE JENKINS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 522-823, SECTION “D”
Honorable Paul A Bonin, Judge
******
Judge Regina Bartholomew-Woods

ON REMAND FROM THE LOUISIANA SUPREME COURT
******
(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard,
Judge Regina Bartholomew-Woods)

Leon Cannizzaro
DISTRICT ATTORNEY
Donna Andrieu
CHIEF OF APPEALS
Michael Danon
Assistant District Attorney
Parish of Orleans
619 S. White Street
New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Katherine M. Franks
LOUISIANA APPELLATE PROJECT
P.O. Box 220
Madisonville, LA 70447

Dominique Jenkins #625988
Rayburn Correctional Center
27268 Hwy. 21 N.
Angie, LA 70426
COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED
SEPTEMBER 23, 2020

RBW

JFM

EAL

This matter is on remand from the Louisiana Supreme Court for an error

patent review in light of Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, ___

L.Ed.2d ___ (2020) and the Louisiana Supreme Court’s directive in State v.

Monroe, 2020-00335 (La. 6/3/20), 296 So.3d 1062.1 After a review of the record,

1
The Louisiana Supreme Court has issued numerous per curiam opinions directing the appellate
courts to consider this issue as part of our errors patent review, stating as follows:

The matter is remanded to the court of appeal for further
proceedings and to conduct a new error patent review in light of
Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, -- L.Ed.2d –
(2020). 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 La. C.Cr.P. art. 920(2).

The present matter was pending on direct review when
Ramos v. Louisiana was decided, and therefore the holding of
Ramos applies. See Griffith v. Kentucky, 479 U.S. 314, 328, 107
S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).

State v. Monroe, 2020-00335 (La. 6/3/20), 296 So.3d 1062; see also State v. Taylor, 18-1039
(La. App. 4 Cir. 6/17/20), __ So.3d __, 2020 WL 3264072.

1

and in light of Ramos, we reverse Defendant’s conviction and remand the matter to

the district court for further proceedings.

PROCEDURAL HISTORY2

On December 11, 2014, a grand jury returned a true bill of indictment

charging Defendant with one count of second degree murder in violation of La.

R.S. 14:30.1.3 On January 29, 2015, Defendant appeared for arraignment and

entered a plea of not guilty. A jury trial commenced on September 13, 2017, and

on September 15, 2017, the jury returned a ten-to-two verdict finding Defendant

guilty of manslaughter in violation of La. R.S. 14:31.4 On October 2, 2017,

Defendant filed motions for a new trial and post-verdict judgment of acquittal,

which the district court denied. On October 20, 2017, Defendant was sentenced to

thirty-eight (38) years of imprisonment at hard labor with credit for time served.

Defendant filed a motion to reconsider sentence, which the district court denied.

Defendant appealed his conviction to this Court and raised six assignments of

error, which included a challenge to his conviction based on the non-unanimous

jury verdict; this Court affirmed Defendant’s conviction and sentence.5 State v.

2
The factual background of this matter is not pertinent to the determinative issue in this remand.
3
La. R.S. 14:30.1 provides second degree murder is the killing of a human being when the
offender has a specific intent to kill or inflict great bodily harm.
4
La. R.S. 14:31 states, in pertinent part, that “[a] homicide which would be murder under either
Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is
committed in sudden passion or heat of blood immediately caused by provocation sufficient to
deprive an average person of his self-control and cool reflection. Provocation shall not reduce a
homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that
an average person’s blood would have cooled, at the time the offense was committed.”
5
In its reasoning, this Court explained the following:

2

Jenkins, 2018-0253 (La. App. 4 Cir. 4/3/19), 267 So.3d 1178, 1181. While

Defendant’s appeal was pending before the Louisiana Supreme Court, the United

States Supreme Court decided Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390,

___ L.Ed.2d ___ (2020), and overruled longstanding precedent authorizing non-

unanimous jury verdicts in state prosecutions. Following Ramos, the Louisiana

Supreme Court remanded Defendant’s case to this Court.6

[Defendant] was convicted of the lesser crime of manslaughter by a ten-to-
two jury verdict. This Court acknowledges that since Defendant filed his appellate
brief, the La. Const. Art. 1 § 17 has been amended to prohibit non-unanimous
verdicts for crimes committed on or after January 1, 2019; however, the Louisiana
Supreme Court has not ruled that non-unanimous jury verdicts for crimes
committed prior to January 1, 2019 unconstitutional. Generally, Louisiana follows
the rule that “a constitutional provision or amendment has prospective effect only,
unless a contrary intention is clearly expressed therein.” State v. Cousan, 1994-
2503, pp. 17-18 (La. 11/25/96), 684 So.2d 382, 392-393. The crime in this instant
matter occurred in June 2014, which was before January 1, 2019. Thus, the
district court’s jury instructions were appropriate and the ten-to-two jury verdict is
a legal verdict.

Jenkins, 2018-0253, p. 20, 267 So.3d at 1189-90 (footnotes omitted).
6
On June 3, 2020, the Louisiana Supreme Court issued the following per curiam opinion:

Writ granted. The matter is remanded to the court of appeal for further
proceedings and to conduct a new error patent review in light of Ramos v.
Louisiana, 590 U.S. ___, 140 S.Ct. 1390, ___ L.Ed.2d ___ (2020). 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 La.C.Cr.P.
art. 920(2).

The present matter was pending on direct review when Ramos v.
Louisiana was decided, and therefore the holding of Ramos applies. See Griffith
v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).
Nothing herein should be construed as a determination as to whether that ruling
will apply retroactively on state collateral review to those convictions and
sentences that were final when Ramos was decided.

State v. Jenkins, 2019-00696, p. 1 (La. 6/3/20), ___ So.3d ___.

3

DISCUSSION

A review of the record reflects that Defendant was convicted of the

responsive verdict of manslaughter by a ten-to-two vote by the jury. At the time of

Defendant’s offense, June 25, 2014, Louisiana law permitted non-unanimous jury

verdicts in felony trials. Further, La. Const. Art. 1 § 17 (A) provided, in pertinent

part:

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

Prior to the 2018 amendment,7 La. C.Cr.P. art. 782(A) provided, in pertinent part,

that “[c]ases 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.” In addition, at that time, the controlling Louisiana jurisprudence

consistently upheld the constitutionality of non-unanimous jury verdicts for cases

tried before a twelve-person jury. State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d

738 (upholding the constitutionality of La. C.Cr.P. art. 782).

The United States Supreme Court, in Ramos, announced a new

constitutional rule: the Sixth Amendment right to a jury trial—as incorporated to

the States through the Fourteenth Amendment—requires a unanimous jury verdict

7
La. Acts 2018, No. 493, §1, effective January 1, 2019.

4

to convict a defendant of a serious offense. Thus, the United States Supreme Court

ruled definitively that non-unanimous jury verdicts in state felony trials are

unconstitutional. In addition, Ramos invalidated the non-unanimous convictions of

defendants who preserved the issue for review in cases still on direct review.

Ramos, __ U.S. at __, 140 S.Ct. at 1406-08; see also, Griffith v. Kentucky, 479

U.S. 314, 328, 107 S.Ct. 708, 716, 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”). In the instant matter, Defendant

preserved for review the issue of the non-unanimity of his jury verdict. However,

even if Defendant had failed to raise the issue of the non-unanimity of the jury

verdict, the Louisiana Supreme Court’s directive in Monroe requires appellate

courts to consider this issue as part of our error patent review. Accordingly, Ramos

requires that this Court revisit and withdraw its earlier opinion that affirmed

Defendant’s conviction and sentence. See State v. Myles, 2019-0965 (La. App. 4

Cir. 4/29/20), ___ So.3d ___; State v. Donovan, 2019-0722 (La. App. 4 Cir.

5/27/20), ___ So.3d ___; State v. Hunter, 2019-0901 (La. App. 4 Cir. 5/27/20), ___

So.3d ___. Thus, applying the new constitutional rule announced in Ramos, we

find that Defendant’s conviction must be vacated.

Accordingly, in reviewing this record on appeal for errors patent, we find

that the holding in Ramos applies in this case and we render Defendant’s

conviction by a non-unanimous jury verdict unconstitutional and set it aside.

5

CONCLUSION

For the aforementioned reasons, we vacate Defendant’s conviction and

sentence and remand this matter to the district court for further proceedings.

VACATED AND REMANDED

6