State of Louisiana v. Richard Donovan

STATE OF LOUISIANA * NO. 2019-KA-0722

VERSUS *
COURT OF APPEAL
RICHARD DONOVAN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 531-459, SECTION “J”
Honorable Darryl A. Derbigny, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)

Leon Cannizzaro, District Attorney
Donna Andrieu, Assistant District Attorney
Irena Zajickova, Assistant District Attorney
Michael Ambrosia, Assistant District Attorney
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR APPELLEE/STATE OF LOUISIANA

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

COUNSEL FOR APPELLANT/DEFENDANT

VACATED AND REMANDED

MAY 27, 2020

SCJ
EAL
RBW
At the conclusion of his jury trial, on the charge of second degree murder,

the defendant, Richard Donovan, was convicted of the responsive offense of

manslaughter, by a non-unanimous jury verdict of ten to two. In this direct appeal

of his conviction, the defendant raises four assignments of error, the first of which

challenges the constitutionality of the non-unanimous jury verdict. While this

appeal was pending, the United States Supreme Court announced a new

constitutional rule in the case of Ramos v. Louisiana, __ U.S. __, 140 S.Ct. 1390,

__ L.Ed.2d __ (2020), holding that non-unanimous jury verdicts in state felony

trials are unconstitutional. Because the Ramos decision must be applied in all

cases pending on direct review, we vacate the defendant’s conviction and sentence,

and we remand this case to the trial court. See Griffith v. Kentucky, 479 U.S. 314,

107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that newly declared constitutional

rules of criminal procedure apply to all criminal cases pending on direct review).

BACKGROUND

On December 8, 2016, an Orleans Parish grand jury indicted the defendant

on one count of second degree murder, a violation of La. R.S. 14:30.1. A three-

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day jury trial commenced on August 27, 2018. At the conclusion of the trial, the

jury found the defendant guilty of the responsive offense of manslaughter, a

violation of La. R.S. 14:31. The jury’s polling slips reflect a non-unanimous

verdict of ten to two to convict the defendant of manslaughter.

On October 30, 2018, the trial court sentenced the defendant to 40 years at

hard labor, to be served without the benefit of probation, parole, or suspension of

sentence, under the firearm sentencing provisions of La. C.Cr.P. art. 893.3(E).

This direct appeal followed.

DISCUSSION

In his first assignment of error, the defendant argues that his constitutional

rights under the Sixth and Fourteenth Amendments to the United States

Constitution were violated by the lack of a unanimous verdict. In his brief, the

defendant noted that, earlier in 2019, the U.S. Supreme Court had granted

certiorari and heard oral arguments in the case of Ramos v. Louisiana, supra,1 to

consider the issue of whether non-unanimous jury verdicts violate the Sixth

Amendment, and that the forthcoming ruling in Ramos would likely affect the

outcome of his appeal.

At the time the defendant’s appeal was submitted to this Court, the

controlling Louisiana jurisprudence consistently upheld the constitutionality of

non-unanimous jury verdicts for cases tried before a twelve-person jury, in

accordance with La. C.Cr.P. art. 782.2 See State v. Bertrand, 08-2215 (La.

1
See State v. Ramos, 2016-1199 (La. App. 4 Cir. 11/02/17), 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, ___ U.S. ___, 139 S.Ct.
1318, 203 L.Ed.2d 563 ([Mar. 18] 2019). Oral arguments were held on October 7, 2019.
2
Prior to being amended by Acts 2018, No. 493, §1, effective January 1, 2019, 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

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3/17/09), 6 So.3d 738 (upholding the constitutionality of La. C.Cr.P. art. 782,

which sanctioned non-unanimous verdicts of ten out of twelve jurors in cases in

which punishment is necessarily confinement at hard labor); see also, State v.

Ravy, 19-0144, p. 17 (La. App. 4 Cir. 9/11/19), 282 So.3d 289, 301-02 (following

Bertrand, and finding no merit to the defendant’s argument challenging the

constitutionality of his non-unanimous jury verdict); State v. Hickman, 15-0817,

pp. 13-15 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1168-69 (“Under both state

and federal jurisprudence, a criminal conviction by less than a unanimous jury does

not violate Defendant’s right to trial by jury as specified by the Louisiana

Constitution, or the Sixth Amendment as made applicable to the states by the Due

Process Clause of the Fourteenth Amendment.”) The Louisiana jurisprudence

upholding non-unanimous jury verdicts for serious felony offenses relied

consistently upon the U.S. Supreme Court’s decision in Apodaca v. Oregon, 406

U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), as explained by the Louisiana

Supreme Court in Bertrand, stating as follows:

In Apodaca, the United States Supreme Court examined an Oregon
statute similar to Article 782, in that the Oregon statute did not require
unanimous jury verdicts in noncapital cases. In a plurality decision,
the Court determined that the United States Constitution did not
mandate unanimous jury verdicts in state court felony criminal trials,
with four Justices holding that the Sixth Amendment guarantee of a
jury trial, made applicable to the States by the Fourteenth
Amendment, does not require that a jury's vote be unanimous. Justice
Powell concurred in the judgment of the Court for reasons different
than those expressed by the author of the opinion. Four Justices,

render a verdict.” Following the passage of a constitutional amendment, in 2018, to require
unanimous verdicts in Louisiana felony trials, La. C.Cr.P. art. 782(A) was amended and
reenacted to provide, in pertinent part, as follows:
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.

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disagreed, finding that the Sixth Amendment guarantee of a jury trial
was made applicable to the States by the Fourteenth Amendment, and
does require a unanimous jury.

The defendants argue here that, because no single rationale for the
non-unanimity position prevailed in Apodaca and in light of more
recent Supreme Court Sixth Amendment jurisprudence, the validity of
the Apodaca decision is questionable. Defendants further argue that
the Apodaca decision is diametrically opposed to the approach taken
by the U.S. Supreme Court in recent Sixth Amendment cases
involving Federal criminal jury trials, in that, rather than looking at
the text of the Amendment and the Framers' understanding of the right
at the time of adoption, the decision relied on the function served by
the jury in contemporary society. Finally, defendants argue that the
use of non-unanimous verdicts have an insidious racial component,
allow minority viewpoints to be ignored, and is likely to chill
participation by the precise groups whose exclusion the Constitution
has proscribed.

This Court has previously discussed and affirmed the constitutionality
of Article 782 on at least three occasions. In State v. Jones, 381 So.2d
416 (La.1980), we ruled that Article 782 did not violate the Sixth and
Fourteenth Amendments. Later, in State v. Simmons, 414 So.2d 705
(La.1982), we found that Article 782 did not violate either the Fifth or
Fourteenth Amendments. Finally, in State v. Edwards, 420 So.2d 663
(La.1982), we again affirmed the statute's constitutionality.

Despite defendants' arguments to the contrary, the case law of the
United States Supreme Court also supports the validity of these
decisions. Although the Apodaca decision was, indeed, a plurality
decision rather than a majority one, the Court has cited or discussed
the opinion not less than sixteen times since its issuance. On each of
these occasions, it is apparent that the Court considered
that Apodaca’s holding as to non-unanimous jury verdicts represents
well-settled law.

* * *

Due to this Court's prior determinations that Article 782 withstands
constitutional scrutiny, and because we are not presumptuous enough
to suppose, upon mere speculation, that the United States Supreme
Court's still valid determination that non-unanimous 12 person jury
verdicts are constitutional may someday be overturned, we find that
the trial court erred in ruling that Article 782 violated the Fifth, Sixth,
and Fourteenth Amendments. With respect to that ruling, it should go
without saying that a trial judge is not at liberty to ignore the
controlling jurisprudence of superior courts.

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Thus, at the time the instant appeal was submitted to this Court for a decision, the

controlling jurisprudence had rejected the defendant’s argument that a non-

unanimous jury verdict violated his Sixth and Fourteenth Amendments rights.

But while this appeal was pending, on April 20, 2020, the U.S. Supreme

Court released its opinion in Ramos, ruling that the Sixth Amendment right to a

jury trial—as incorporated against the States through the Fourteenth Amendment—

requires a unanimous jury verdict to convict a defendant of a serious offense.

In Ramos, the Court’s majority overruled Apodaca, noting that that plurality

decision was a “badly fractured set of opinions” that was was “gravely mistaken.”

Ramos, __ U.S. at __, 140 S.Ct. at 1397, 1405. Justice Gorsuch further noted that,

in presenting the State’s argument in Ramos, “not even Louisiana tries to suggest

that Apodaca supplies a governing precedent”; “[t]he State expressly tells us it is

not ‘asking the Court to accord Justice Powell’s solo opinion

in Apodaca precedential force.’ Instead, in an effort to win today’s case, Louisiana

embraces the idea that everything is up for grabs. It contends that this Court has

never definitively ruled on the propriety of nonunanimous juries under the Sixth

Amendment—and that we should use this case to hold for the first time that

nonunanimous juries are permissible in state and federal courts alike.” Ramos, __

U.S. at __, 140 S.Ct. at 1399.

Now, in deciding Ramos, the U.S. Supreme Court has ruled definitively that

non-unanimous jury verdicts are unconstitutional. Furthermore, as recognized

within the opinion, the Court’s ruling invalidates the non-unanimous convictions of

defendants who preserved the issue for review in cases still on direct review.3

3
The Court further acknowledged that the question of whether the right to jury unanimity applies
to cases on collateral review was not at issue and is left for a future case, which is “sure to come,

5

Ramos, __ U.S. at __, 140 S.Ct. at 1406-08; see also, Griffith, 479 U.S. at 328, 107

S.Ct. at 716 (“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”). Accordingly, the Ramos holding applies in this case and invalidates the

defendant’s conviction by a non-unanimous jury verdict.

In light of this result, any discussion of the defendant’s other assignments of

error is rendered moot.

CONCLUSION

Finding that the new constitutional rule announced by the U.S. Supreme

Court in Ramos v. Louisiana, which requires unanimous jury verdicts in state

felony trials, applies to this direct appeal of the defendant’s non-unanimous

conviction, we hereby vacate the defendant’s conviction and sentence, and we

remand this matter to the trial court.

VACATED AND REMANDED

and will rightly take into account the States’ interest in the finality of their convictions.” Ramos,
__ U.S. __, 140 S.Ct. at 1407.

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