State Of Louisiana v. Nathan Curry

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2018 KA 1764

STATE OF LOUISIANA

MR VERSUS

NATHAN CURRY

Judgment Rendered: SEP 272019

APPEALED FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ASCENSION
STATE OF LOUISIANA
DOCKET NUMBER 29, 597

HONORABLE ALVIN TURNER; JR. JUDGE

Ricky Babin Attorneys for Appellee
District Attorney State of Louisiana
Donaldsonville, Louisiana

Donald D. Candell
Lindsey Manda
Assistant District Attorneys
Gonzales, Louisiana

Jane L. Beebe Attorney for Defendant/Appellant
New Orleans, Louisiana Nathan Curry

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

McDonald, J.

The defendant, Nathan Curry, was charged by grand jury indictment with

second degree murder, a violation of La. R.S. 14: 30. 1. He pled not guilty. After a

trial by jury, he was found guilty as charged. The trial court denied a motion for

post -verdict judgment of acquittal and two motions for new trial filed by the

defendant. The trial court sentenced the defendant to life imprisonment at hard

labor without the benefit of probation, parole, or suspension of sentence. The

defendant now appeals, assigning error based on the sufficiency of the evidence,

prosecutorial statements during closing arguments, and the non -unanimous jury

verdict. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On the night of March 10, 2012, a group of individuals, mostly from

Donaldsonville, Louisiana, travelled in at least four separate vehicles to Geismar

and Gonzales, Louisiana, to attend social gatherings. In Geismar, they went to the

Geismar Community Center, but left abruptly, when a fight broke out and police

arrived.
Upon leaving, some in the group headed back to Donaldsonville while

others travelled to a Gonzales neighborhood where one member of the group,

Davonne Solomon (the victim herein), was shot in the chest.

According to Sparkle Bell, Ariel Dunn, Jardell Pleasant, and Robert Gibson

the driver), four Donaldsonville individuals who rode together to Gonzales with

the victim, when they turned off Darla Avenue to Amber Street ( a dead end street),

they saw a group of people standing outside. As they exited their vehicle, shots

were fired. At that time, Ariel, who did not see who was shooting, was shot in the

arm and in the side. Robert witnessed someone yell, " Back up, back up, back up

police, police," and saw Davonne stepping back just as " the dude" fired

gunshots. Robert did not know the person who shot Davonne, nor did he get a

2

good look at him, but he noticed that the shooter was wearing a camouflage jacket

and had dreadlocks. Jardell similarly stated that he saw a person with a gun in his

hand say, " Y' all back the f—k up." Jardell backed up and turned around, and the

shots were fired as he ran. Jardell noted that the person with the gun was wearing

a " camouflage jacket with the dreads in his head." Jardell did not see Davonne get

shot, as he was not looking toward Davonne at the time of the gunfire.'

Sparkle, however, maintained that she saw Davonne being shot. According

to Sparkle, after they exited their vehicle, the defendant, who she knew before that

night, approached Davonne, pointed a gun at his chest, and shot him. Sparkle was

approximately five feet from the defendant at the time. Sparkle noted that the

defendant had dreadlocks at the time of the shooting. Sparkle identified the

defendant as Davonne' s shooter in a photographic lineup, and again in court at

trial.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that the State failed

to meet its burden of proving all of the elements of the crime beyond a reasonable

doubt. Thus, the defendant argues that the trial court erred in denying his motion

for post -verdict judgment of acquittal and his motion for new trial on that basis.

Noting that the only question in this case was the identity of the shooter, the

defendant contends that there was no physical evidence to connect him to the

shooting. The defendant concedes that, before the trial, two witnesses identified

him as the shooter. However, he contends that, at trial, one of the witnesses, Max

Batiste, testified that he did not see the defendant shoot anyone. Regarding the

other witness, Sparkle, the defendant contends that she was inconsistent as to

1 According to Jardell, after the gunfire, Davonne ran to the vehicle that Jardell arrived in stating, " I' m
shot. Let me get in the car." Jardell and the driver, Martell Oliver, took Davonne to the hospital. Dr.

Christopher Tape, who performed the autopsy, testified that the victim' s cause of death was a gunshot
wound to the left chest from a bullet that went through the victim' s ribs, lungs, and heart, before exiting
his left back.
3

whether she was outside or in the civic center restroom when the fight began

between the Gonzales and Donaldsonville males. The defendant further contends

that, at trial, Sparkle had to be confronted with her pretrial police statement before

admitting that she believed two shooters were involved. He claims that Sparkle' s

account of the shooting contradicted the State' s theory that there was only one

shooter with one gun. Further, the defendant notes the lack of physical evidence or

a ballistic expert to support the State' s theory. The defendant argues that the trial

court, in denying the post -trial motions, failed to see the flaws in the evidence to

prove identity.

The standard of review for the sufficiency of the evidence to uphold a

conviction is whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 ( 1979). See also La. C. Cr.P. art. 821( B);

State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660. The Jackson

standard of review, incorporated in Article 821, is an objective standard for testing

the overall evidence, both direct and circumstantial, for reasonable doubt. State v.

Patorno, 2001- 2585 ( La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 141, 144.

When analyzing circumstantial evidence, La. R.S. 15: 438 provides that the

factfinder, in order to convict, must be satisfied the overall evidence excludes

every reasonable hypothesis of innocence. When a case involves circumstantial

evidence and the trier of fact reasonably rejects the hypothesis of innocence

presented by the defense, that hypothesis falls, and the defendant is guilty unless

there is another hypothesis that raises a reasonable doubt. State v. Dyson, 2016-

1571 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 220, 228, writ denied, 2017- 1399 ( La.

6/ 15/ 18), 257 So. 3d 685.

G'

Second degree murder is the killing of a human being when the offender has

a specific intent to kill or to inflict great bodily harm. La. R.S. 14: 30. 1( A)( 1).

Specific criminal intent is that state of mind that exists when the circumstances

indicate that the offender actively desired theprescribed criminal consequences to

follow his act or failure to act. La. R.S. 14: 10( 1). Though intent is a question of

fact, it need not be proven as a fact. It may be inferred from the circumstances of

the transaction. Thus, specific intent may be proven by direct evidence, such as

statements by a defendant, or by inference from circumstantial evidence, such as a

defendant's actions or facts depicting the circumstances. Specific intent is an

ultimate legal conclusion to be resolved by the factfinder. State v. Coleman,

2017- 1045 ( La. App. 1st Cir. 4/ 13/ 18), 249 So. 3d 872, 877, writ denied, 2018-

0830 ( La. 2/ 18/ 19), 263 So. 3d 1155. Specific intent to kill maybe inferred from a

defendant's act of pointing a gun and firing at a person. See State v. Maten, 2004-

1718 ( La. App. 1st Cir. 3/ 24/ 05), 899 So. 2d 711, 717, writ denied, 2005- 1570 ( La.

1/ 27/ 06), 922 So. 2d 544; State v. Henderson, 99- 1945 ( La. App. 1st Cir. 6/ 23/ 00),

762 So. 2d 747, 751, writ denied, 2000- 2223 ( La. 6/ 15/ 01), 793 So. 2d 1235.

The State bears the burden of proving the elements of the charged offense,

as well as the identity of the defendant as the perpetrator. See State v. Draughn,

2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 593, cert. denied, 552 U.S. 1012, 128

S. Ct. 537, 169 L.Ed.2d 377 ( 2007). When the key issue is the defendant's identity

as the perpetrator, rather than whether the crime was committed, the State is

required to negate any reasonable probability of misidentification. A positive

identification by only one witness is sufficient to support a conviction. State v.

Weary, 2003- 3067 ( La. 4/ 24/ 06), 931 So.2d 297, 311, cert. denied, 549 U.S. 1062,

127 S. Ct. 682, 166 L.Ed. 2d 531 ( 2006).

5

Sergeant Stephen Nethken of the Gonzales Police Department ( GPD)

responded to St. Elizabeth Hospital, where Davonne and Ariel were transported.

He learned that he would not be able to speak with Davonne ( as he was suffering

from a fatal gunshot wound and attempts to sustain his life were taking place) and

that Ariel was in no position to identify the shooter ( as she was running and

ducking once the gunfire started). However, Sergeant Nethken interviewed

Sparkle, who was at the hospital with Ariel at the time. Sergeant Nethken also

interviewed Robert, who was also at the hospital. Robert showed Sergeant

Nethken a hole in the right rear quarter panel of his vehicle from a bullet that

entered his vehicle at the time of the shooting. Sergeant Nethken recovered the

projectile from the trunk of the vehicle. Both Sparkle and Robert described the

shooter as a dark- skinned black male with dreads wearing a camouflage jacket,

though Robert stated that he could not identify the shooter.

While at the hospital, Sergeant Nethken also interviewed Brandy Hill, who

stated that she witnessed the shooting, and she identified the shooter as Nathan

Curry. Her physical description of the shooter was consistent with that of Sparkle

and Robert. Sergeant Nethken then briefly left the hospital to create a six -person

photographic lineup that included a picture of the defendant. When he returned to

the hospital, he discovered that Brandy had left. Sergeant Nethken then showed

the lineup to Sparkle, who immediately identified the defendant as the person who

shot Davonne.

Sergeant Nethken then proceeded to the crime scene, which consisted of a

significant portion of Amber Street that was already being investigated by other

officers at the time. A projectile, which entered through a window, was recovered

from a residence located south of the crime scene, and another projectile was found

lying on Amber Street. Ten shell casings of the same caliber and brand were also

0

collected on Amber Street and from the yard of a nearby residence located closer

to the Darla Avenue side of Amber Street. All of the shell casings and projectiles,

including the one recovered from Robert' s vehicle, along with additional evidence,
2
were packaged and sent to the crime lab for testing.

After processing the evidence, Sergeant Nethken located Brandy, who

recanted her statement, stating that she was not actually at the crime scene, but had

heard from others in the hospital parking lot that the defendant was the shooter.

After Davonne' s autopsy, Sergeant Nethken located another witness, Max Batiste,

who stated that he saw Davonne' s shooting, that the defendant was the shooter, and

that the defendant was wearing a camouflage jacket and had medium length dreads

at the time. Sergeant Nethken further testified that Max identified the defendant

from a photographic lineup. However, at trial, when Max was asked if he saw the

defendant shoot anyone he responded, " No, sir." When asked if he gave a

statement to Sergeant Nethken, he stated, " I plead the fifth, man." He did not offer

any further testimony.

Several trial witnesses, including Sparkle, Ariel, Robert, and Jardell,

testified that they were with Davonne at the time of the shooting. They all testified

that to their knowledge, Davonne ( whom some also referred to as " Bateau") was

not armed with any sort of weapon at the time of the shooting. While there was

some discrepancy among the trial witnesses as to whether the group of individuals

who were standing outside were blocking their vehicles, each of the witnesses

maintained that they did not go to the neighborhood or exit their vehicles with the

intention of fighting or starting a conflict.

2 Although a weapon was not recovered, the crime lab determined that all of the tested projectiles and
casings were fired from the same weapon.

VA

Sparkle recalled telling the police that the people from Gonzales opened fire.

When asked how many shots the defendant fired, Sparkle testified, " I seen one."

She initially testified that she did not recall telling the police that she believed there

was a second shooter. But, when the question was rephrased, she confirmed that

she told the police that a second shooter was in the area based on her observation

of sparks from gunfire. She reiterated that the defendant was the person who she

saw shoot Davonne.

The defendant' s sister, Veshon Curry, testified at trial. Veshon indicated

that she initially went to the Geismar Community Center that night, but by the time

she and others arrived, the party had already been shut down. They subsequently

went to Jaylen Bell' s residence on Amber Street. She testified that, when they

arrived, at least fifteen car loads of people pulled into the subdivision playing loud

music and screaming as they exited their vehicles. She stated that she saw Max,

with "
Whe booty of his gun hanging out his pants" and that " Bateau" ( Davonne)

looked like he was reaching for a gun as he walked towards her. Suddenly, she

heard gunshots. At that point, she fled. She confirmed that Max and Sparkle were

also at the scene of the shooting. Veshon admitted that she neither called nor gave

a statement to the police about what she witnessed.

Defense witness Christopher Heard testified that he was at the party at the

Geismar Community Center that night with a group of friends. He said that people

from Donaldsonville were being turned around at the front door and not allowed in

due to a " beef' between the Donaldsonville and Gonzales residents. He further

testified that, at some point, he saw the people from Donaldsonville entering a side

door, that tension starting building, and that people started pushing each other. He

stated that, at some point, he was hit with a bottle, adding, " that' s when licks

started going, the fight broke out." After the police were called, Christopher and

his friends went to Worthy Street ( near the scene of the shooting), where they were

accosted by two individuals before running to Amber Street. While on Amber

Street, Christopher saw the defendant, who was at Joey Bell' s house. As he was

talking to the defendant, the group of cars with occupants from Donaldsonville

arrived in the area. He noted that they were outnumbered as it was only nine or ten

of them, but more occupants of the vehicles than he was able to count. He stated

that the individuals were playing loud music, and after exiting their vehicles, were

making threatening remarks. He observed two of the males lifting their shirt, a

gesture that he believed was an indication that they were armed with guns. He

testified, " I could tell that they had a gun." At that point, he feared for his life and

fled on foot.

When asked if he actually saw a gun, Christopher said, " No. But from what

it looked like, from what I could see, at nighttime, that' s what I thought." When

specifically asked if he saw Davonne with a gun, he testified, " I couldn' t tell you

who Davonne Solomon is if you even put a picture in front of me." He further

stated that he would not be able to pick out anyone who was involved in the fight

inside of the Geismar Community Center and did not know whether they were the

same individuals who went to Amber Street.

At the outset, we note that a trial court' s determination regarding the weight

of the evidence under La. C. Cr.P. art. 851( B)( 1) is not reviewable on appeal,

except for error of law. Dyson, 222 So. 3d at 234; see also La. C. Cr.P. art. 858.

Article 851( B)( 5) allows the trial court to grant a new trial if the ends of justice

would be served, although the defendant may not be entitled to a new trial as a

matter of strict legal right. The grant or denial of a new trial pursuant to Article

851( 5) does not involve questions of fact. In deciding whether the trial court

abused its discretion in granting or denying a new trial under Article 851( 13)( 5), we

9

keep in mind two precepts. One, the trial court is vested with almost unlimited

discretion, and its decision should not be disturbed unless there has been a palpable

abuse of that discretion. Two, this ground for a new trial is based on the

supposition that injustice has been done the defendant, and, unless such is shown to

have been the case, the motion should be denied, no matter upon what allegations

it is grounded. State v. Guillory, 2010- 1231 ( La. 10/ 8/ 10), 45 So. 3d 612, 615 ( per

curiam). Herein, the defendant has made no showing that an error of law,

injustice, or abuse of discretion was committed. Accordingly, we find no error in

the trial court' s denial of the motion for new trial on this basis.

Further, the trier of fact is free to accept or reject, in whole or in part, the

testimony of any witness. Coleman, 249 So. 3d at 878. After a careful review of

the record, we cannot say that the jury' s determination was irrational under the

facts and circumstances presented to them. See Ordodi, 946 So. 2d at 662. Sparkle

repeatedly positively identified the defendant as Davonne' s shooter and did not

waver in that regard.' Further, others at the scene described the shooter as having

dreads and wearing a camouflage jacket. Specifically, although they were unable

to make a positive identification, Robert' s and Jardell' s description of the shooter' s

hair and attire was consistent with Sparkle' s description. While testimony from

Veshon and Christopher was presented in an attempt to show that Davonne was

armed with a gun, their testimony does not establish that either of them actually

3 As the defendant notes on appeal, Sparkle testified at trial that she had gone into the restroom at the
Geismar Community Center, but admitted that before trial, she told the police that she did not go inside of
the Geismar Community Center. The jury heard this minor discrepancy. Regardless of any
inconsistencies in Sparkle's testimony, the verdict indicates that the jury chose to believe her testimony as
to her visual identification of the defendant as Davonne' s shooter. This court cannot second guess that
credibility determination. See State v. Alexander, 2017- 1166 ( La. App. 3d Cir. 9/ 26/ 18), 256 So.3d 365,
376, writ denied, 2018- 1794 ( La. 4/ 15/ 19), 267 So. 3d 1130 ( wherein the court held that it could not
second guess the credibility determination made by the jury in choosing to believe a witness' s testimony,
despite inconsistencies and even an admission that some of the witness' s testimony was untruthful).

me]

saw Davonne with a weapon. Christopher testified that he did not know Davonne,

was not familiar with Davonne at the time of the shooting, and was not certain if

Davonne was one of the individuals who he saw at the scene. Further, Veshon and

Christopher testified that they fled before or at the point of the gunfire and did not

see who was firing the gunshots. Finally, neither Veshon nor Christopher offered

any testimony that conflicted with Sparkle' s identification of the defendant as

Davonne' s shooter.

An appellate court errs by substituting its appreciation of the evidence and

credibility of witnesses for that of the factfinder and thereby overturning a verdict

on the basis of an exculpatory hypothesis of innocence presented to, and rationally

rejected by, the trier of fact. See State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269

So. 3d 698, 703 ( per curiam); State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d

417, 418 ( per curiam). Viewing the evidence in the light most favorable to the

prosecution, we are convinced that a rational trier of fact could find that the State

proved beyond a reasonable doubt, and to the exclusion of every reasonable

hypothesis of innocence, all of the elements of second degree murder and the

defendant' s identity as the perpetrator. Thus, the trial court did not err in denying

the defendant' s motion for post -verdict judgment of acquittal. Assignment of error

number one lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant argues that the prosecutor

made an inappropriate, unprofessional statement about the defense attorney during

rebuttal closing arguments. Specifically, he contends that when the prosecutor

referred to the defense attorney as a magician, he was in essence calling the

defense attorney a liar. The defendant notes that the defense attorney, " in a

professional manner,"
waited for the prosecutor to complete the rebuttal closing

11

argument before requesting a bench conference and requesting an admonishment.

Noting that the trial court only agreed to give the standard instruction that

arguments do not consist of evidence as opposed to a specific admonishment, the

defendant argues that there was no actual repercussion for the prosecutor' s

personal insult" and improper comment. The defendant further notes that his first

motion for new trial was partly based on the prosecutor' s comment. He argues that

once the jury heard the inflammatory and prejudicial comment, the nearly

unavoidable inference that the defense attorney was being deceptive made a fair

trial and fair assessment of the evidence unlikely, The defendant argues that the

error was not harmless, claiming that it played on the " bad reputation" of criminal

defense attorneys, that the evidence was " tenuous at best[,]" and that the ten of

twelve verdict was " barely secured[,]" as one of the jurors wavered.

Closing arguments in criminal cases should be restricted to the evidence

admitted, to the lack of evidence, to conclusions of fact that may be drawn

therefrom, and to the law applicable to the case. Further, the State' s rebuttal shall

be confined to answering the argument of the defendant. See La. C. Cr.P. art. 774.

The trial court has broad discretion. in controlling, the scope of closing argument.

State v. Mitchell, 2016- 0834 ( La. App. 1st Cir..9/ 21/ 17), 231 So. 3d 710, 719, writ

denied, 2017- 1890 ( La. 8/ 31118), 251 So. 3d 410. Upon request of defendant, the

court may, in its discretion, grant a mistrial or an admonishment, premised upon

argument by the State which is irrelevant or immaterial and of such a nature that it

might create prejudice against defendant in the mind of the jury. La. C. Cr.P. arts.

770 and 771.

Prosecutors are allowed wide latitude in choosing closing argument tactics.

See Draughn, 950 So. 2d at 614; State v. Patton, 2010- 1841 ( La. App. 1st Cir.

6/ 10/ 11), 68 So. 3d 1209, 1221. The State should avoid personal attacks on defense

12

counsel and trial strategy. State v. Jones, 2015- 0123 ( La. App. 4th Cir. 12/ 2/ 15),

182 So. 3d 251, 279, writ denied, 2016- 0027 ( La. 12/ 5/ 16), 210 So. 3d 810.

However, such statements generally do not rise to the level that merits reversal of a

conviction. See State v. Dabney, 2015- 0001 ( La. App. 4th Cir. 9/ 9/ 15), 176 So. 3d

515, 527, 529, writ denied, 2015- 1852 ( La. 10/ 17/ 16), 208 So.3d 374 ( holding that

instances where the State attacked defense strategy and tactics, branded defense

counsel a liar and not worthy of belief, and suggested that the defendant may have

killed someone in the past" did not require reversal "[ in] light of the traditional

breadth accorded the scope of closing argument by the courts of this state[.]")

Even if the prosecutor exceeds the bounds of proper argument, a reviewing court

will not reverse a conviction if not " thoroughly convinced" that the argument

influenced the jury and contributed to the verdict. See State v. Prestridge, 399

So. 2d 564, 579 ( La. 1981); Mitchell, 231 So. 3d at 719.

In the instant case, the defendant references the following portion of the

State' s rebuttal in closing argument referring to the defense attorney, Mr. John:

And Mr. John brings up a piece, of evidence, a shirt in the yard.
We didn' t introduce it as evidence because why? It had no
evidentiary value. Smoke and mirrors. Throw some stuff out there,
get you looking here when you' re doing something over there.

And that' s what this is about. You know, I knew Mr. John was
a pilot. I. didn' t realize he was a magician. You know what a
magician uses as his trick? He sits over here and shows you all of this
in this hand, get you flashing, when it' s in this hand. And that' s what
he' s doing.

At the conclusion of the rebuttal, the defense attorney requested a bench

conference and asked the trial court to admonish the jury regarding the above

remarks.
In response, the trial court stated that it would inform the jury that

closing arguments are not evidence.

As the defendant notes on appeal, he reasserted the issue in his first motion

for new trial. Under La. C. Cr.P. art. 851( B), in pertinent part, the court, on motion
13

of the defendant, shall grant a new trial whenever the court' s ruling on an objection

made during the proceedings shows prejudicial error, or when the court is of the

opinion that the ends of justice would be served by the granting of a new trial. The

ruling on a motion for new trial is committed to the sound discretion of the trial

court and will be disturbed on appeal only when there is a clear showing of an

abuse of that discretion. State v. Duvall., 97- 2173 ( La. App. 1st Cir. 12/ 28/ 99),

747 So. 2d 793, 797, writ denied, 2.000- 1362 ( La. 2/ 16/ 01), 785 So. 2d 838, cert.

denied, 543 U.S. 1160, 125 S. Ct. 1319, 161 L.Ed.2d 130 ( 2005).

We note that, during jury instructions, the trial court informed the jury that

statements of counsel are not evidence. As the defendant concedes, in accordance

with its ruling on the request for an admonishment, the trial court also informed the

jury that opening and closing arguments are not to be considered as evidence. We

further note that credit must be given to the " good sense and fair-mindedness of the

jurors who heard the evidence" at trial. State v. Mills, 2013- 0573 ( La. App. 1st

Cir. 8/ 27/ 14), 153 So. 3d 481, . 496, writs denied, 2014- 2027 ( La. 5/ 22/ 15), 170

So. 3d 982 and 2014- 2269 ( La. 9/ 18/ 15), 178 So. 3d 139: The comments at issue

herein were in response to: the defense counsel' s argument in closing that the

evidence, despite eyewitness testimony identifying the defendant as the shooter

and the consistent descriptions of the shooter, did not show that the defendant was

at the scene or committed the shooting. Therefore, the State' s responsive remarks

are arguably within the scope of La. C. Cr.P. art. 774. Moreover, we are not

thoroughly convinced" the comments, . even if, improper, contributed to or

influenced the verdict considering the entirety of the record. Therefore, we find no

abuse of discretion in the trial court' s decision to not specifically admonish the

jury, nor do we find any reason to disturb the trial court's denial of the motion for

new trial on this basis. Accordingly, assignment of error number two lacks merit.

14

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant argues that, because his

conviction is not yet final, his conviction is subject to the retroactive application of

the amended version of La. C. Cr.P. art. 782( A). The defendant acknowledges that

the amendment provides that the change in the law is prospective, but argues that

under State v. Draughter, 2013- 0914 ( La. 12/ 10/ 13), 130 So. 3d 855, 860, and

Griffith v. Kentucky, 479 U. S. 314, 328, 107 S. Ct. 708, 716, 93 L.Ed.2d 649

1987), the amendment should be applied retroactively. Considering the ten of

twelve concurrence in the jury verdict in this case, the defendant argues that a

retroactive application of the law requires a -reversal of his conviction.

It is well settled that a constitutional challenge may not be considered by an

appellate court unless it was properly pleaded and raised in the trial court below.

A party must raise the unconstitutionality in the trial court, the unconstitutionality

must be specially pleaded, and the grounds outlining the basis of

unconstitutionality must be particularized. See State v. Hatton, 2007- 2377 ( La.

7/ 1/ 08), 985 So. 2d 709, 718- 19. As noted by the State, based on the record in the

instant case, the defendant failed to raise his challenge to La. Const. art. I, § 17( A)

and La. C. Cr.P. art. 782( A) in the trial court. ' Thus, this issue is not properly before

this court. See State v. Talley, 2018- 1300 ( La. App. 1st Cir. 5/ 9/ 19), So. 3d

2019 WL 20513391 * 7.

Moreover, even if we were to address the issue, it is meritless. As provided

by La. Const. art. T, § 17( A) ( as amended by 2018 La. Acts No. 722, § 1) and La.

C. Cr.P. art. 782( A) ( as amended by 2018 La. Acts No. 493, § 1), 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

15

of whom must concur to render a verdict.' Under both state and federal

jurisprudence, it has been held that a criminal conviction by a less than unanimous

jury does not violate a defendant' s right to trial by jury as specified by the Sixth

Amendment and made applicable to the states by the Fourteenth Amendment. See

Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 ( 1972); State v.

Belgard, 410 So. 2d 720, 726 ( La. 1982); State v. Brooks, 2017- 1755 ( La. App.

1st Cir. 9/ 24/ 18), 258 So. 3d 944, 953, writ denied, 2018- 1718 ( La. 2/ 25/ 29), 266

So. 3d 289.

Our supreme court in State v. Bertrand, 2008- 2215 ( La. 3/ 17/ 09), 6 So. 3d

7389 742- 43, found that a non -unanimous., twelve -person jury verdict is

constitutional and ,that Article 732 does not violate the Fifth, Sixth, or Fourteenth

Amendments. Regarding, the equal protection argument that such verdicts have an

insidious racial component, the Bertrand court noted that the issue had already

been decided as meritless by a majority of the United States Supreme Court in

Apodaca. Bertrand, 6 So. 3d at 743. The 2018 statutory amendments at issue

here do not undermine those holdings.

We note that the United States Supreme Court, and other courts, have cited

or discussed the Apodaca opinion various times since its issuance and, it is

apparent that its holding as to non -unanimous j-ury verdicts represents well-settled

law. Bertrand, 6 So.3d at 7421. In McDonald v. City of Chicago, 561 U.S. 742,

764- 65, 1. 30 S. Ct., 3020, 3.034- 35, 177 L.Ed.2d 894 ( 2010), the Supreme Court

recognized that most, but not all, of the protections of the Bill of Rights are

enforceable against the states, through the Fourteenth Amendment. However,

For cases in which the punishment is necessarily confinement at hard labor, the constitutional and
statutory provisions at issue were amended to require unanimous jury verdicts, if the offense was
committed on or after January 1, 2019. However, for an offense committer) before January 1, 2019, in
which the punishment is necessarily confinement at hard labor, as in the instant case, ten of twelve jurors
must concur to render a valid verdict:

citing Apodaca in support of the proposition, the Supreme Court specifically

stated in McDonald that, although the Sixth Amendment requires unanimous jury

verdicts in federal criminal trials, it does not require unanimous jury verdicts in

state criminal trials. McDonald,- 561. U.S. at 766 n. 14, 130 S. Ct. at 3035 n. 14.

Therefore, in McDonald the Supreme Court reaffirmed the holding of Apodaca. 5

Considering the foregoing; La. Const. art. I, § 17( A) and La. C. Cr.P. art.

782( A), insofar as the provisions continue to permit non -unanimous jury verdicts,

are not unconstitutional and, therefore, not in violation of the defendant's

constitutional rights. See State v. Hammond, 2012- 1559 ( La. App. 1st Cir.

3/ 25/ 13), 115 So.3d 513, 514- 15, writ denied, 2013- 0887 ( La. 11/ 8/ 13), 125 So. 3d

442, cert. denied, 572 U.S. 1090, 134 S. Ct. 1939, 188 L.Ed.2d 965 ( 2014). We

further note that Louisiana follows the general rule that a constitutional provision

or amendment has prospective effect only, unless a contrary intention is clearly

expressed. State v. Cousan, 1994- 2503 ( La. 11/ 25/ 96), 684 So. 2d 382, 392- 393.

But we need not defer to the general rule, because La. Const. art. I, § 17( A) and La.

C. Cr.P. art. 782( A), as amended in 2018 to require unanimous jury verdicts,

explicitly provide that the amendment is applicable to offenses that occur on or

after January 1, 2019. In accordance with the above, there can be no retroactive

application of these amendments, and the defendant's conviction by a non -

unanimous jury verdict is not unconstitutional. Thus, assignment of error number

three lacks merit.

5 We recognize that State v. Ramos, 2016- 1199 ( La. App. 4th Cir. 11/ 2/ 17), 231 So. 3d 44, writ denied,
2017- 2133 ( La. 6/ 15/ 18), 257 So. 3d 679, and writ denied sub nom., State ex rel. Evangelisto Ramos v.
State, 2017- 1177 ( La. 10/ 15/ 18), 253 So. 3d 1300, and cert. granted sub. nom, Ramos v. Louisiana, 139
S. Ct. 1318, 203 L.Bd.3d 563 ( 2019), is currently before the United States Supreme Court, which may
address the issue of whether the unanimous jury verdict requirement of the Sixth Amendment to the
United States Constitution applies to . the states through application of the Fourteenth Amendment.
However, as stated by the Louisiana Supreme Court in Bertrand. under current jurisprudence from the
U.S. Supreme Court, non -unanimous twelve -person jury verdicts are constitutional. As an intermediate
court, we are bound by that precedent. State v. Acevedo, 2018- 683 ( La. App. 5th Cir. 5/ 8/ 19), 273 So. 3d
462, 487.
17

DECREE

Therefore, for the foregoing. reasons, the conviction and sentence are

affirmed.

CONVICTION AND SENTENCE AFFIPMED.