State of Louisiana v. Troy Varnado

STATE OF LOUISIANA * NO. 2019-KA-0330

VERSUS *
COURT OF APPEAL
TROY VARNADO *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 534-923, SECTION “F”
Honorable Robin D. Pittman, Judge
******
Judge Joy Cossich Lobrano
******
ON REMAND FROM LOUISIANA SUPREME COURT

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany G. Chase)

Leon Cannizzaro
District Attorney
Donna Andrieu
Kyle Daly
DISTRICT ATTORNEY'S OFFICE
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR STATE/APPELLEE

Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P. O. Box 4015
New Orleans, LA 70178-4015

Troy L. Varnado
Louisiana State Penitentiary
Camp C Bear #3
Angola, LA 70712

COUNSEL FOR DEFENDANT/APPELLANT

VACATED IN PART; REMANDED.
JUNE 24, 2020

JCL, TFL, TGC This criminal appeal is on remand from the Louisiana Supreme

Court following Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390

(2020)(hereinafter referenced as “Ramos”), wherein the United States Supreme

Court held that non-unanimous jury verdicts are unconstitutional in state felony

prosecutions.

Defendant, Troy Varnado (“Defendant”) was convicted of second-degree

murder, second-degree kidnapping, and obstruction of justice. While the latter two

verdicts were unanimous, the jury verdict for the charge of second-degree murder

was 11-1.1 On appeal, this Court affirmed Defendant’s convictions and sentences,

rejecting, inter alia, Defendant’s assigned error concerning the non-unanimous

1
Specifically, the trial court recited:

On Count 1: New Orleans, Louisiana. Dated September 19th of 2018. We, the
jury, find the defendant, Troy Varnado guilty as charged of second degree
murder. The court has had an opportunity to review the twelve polling slips and
eleven of the twelve jurors have indicated on the polling slip[s] that that was their
verdict.”

2

verdict. See State v. Varnado, 19-0330 (La. App. 4 Cir. 1/29/20), --- So.3d ---,

2020 WL 476793.

Defendant sought review by the Louisiana Supreme Court, and Ramos was

decided while Defendant’s writ application was pending. The United States

Supreme Court determined that the Sixth Amendment to the United States

Constitution does not permit non-unanimous verdicts and this prohibition applies

to the states through the Fourteenth Amendment. 590 U.S. at ---, 140 S.Ct. at 1397.

The Ramos decision overruled long-standing precedent authorizing non-unanimous

jury verdicts in state prosecutions. Because of the Ramos decision, the Louisiana

Supreme Court granted Defendant’s pending writ application and remanded

Defendant’s case to this Court to conduct an error patent review.

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. Varnado, 20-0356, p. 1 (La. 6/3/20), --- So.3d ---.

3

This Court routinely reviews the record on appeal for errors patent. La.

C.Cr.P. art. 920;2 State v. Lewis, 15-0773, p. 9 (La.App. 4 Cir. 2/3/16), 187 So.3d

24, 29. A review of the record reveals one error patent. Defendant’s conviction for

second-degree murder was by a non-unanimous jury verdict, rendering it

unconstitutional in light of Ramos. Consequently, we vacate Defendant’s

conviction and sentence for second-degree murder and the case is remanded to the

district court for further proceedings. Notably, however, we find that Defendant’s

convictions by unanimous jury verdicts for second-degree kidnapping and

obstruction of justice and respective sentences should not be disturbed.

VACATED IN PART; REMANDED.

2
La. C.Cr.P. art. 920(2) states that an errors patent is “[a]n error that is discoverable by a mere
inspection of the pleadings and proceedings and without inspection of the evidence.” State v.
Duckett, 19-0319, p. 8, n. 3 (La. App. 4 Cir. 12/18/19), 288 So.3d 167, 173-74.

4