State Of Louisiana v. Michael Hawk

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 0360

STATE OF LOUISIANA

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VERSUS
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MICHAEL HAWK

Judgment Rendered: NOV 1 2 2020

On Appeal from the
20th Judicial District Court
In and for the Parish of East Feliciana
State of Louisiana
Trial Court No. 16 -CR -999

Honorable Kathryn E. Jones, Judge Presiding

Samuel C. D' Aquilla Attorney for Appellee,
District Attorney State of Louisiana
Clinton, LA

Franz N. Borghardt Attorneys for Defendant -Appellant,
Baton Rouge, LA Michael Hawk

Thomas " T.C." Wicker
New Orleans, LA

BEFORE: HIGGINBOTHAM, THERIOT, AND WOLFE, JJ.

HIGGINBOTHAM, J.

The defendant, Michael Hawk, was charged by grand jury indictment with

first degree rape ( victim under the age of thirteen years), a violation of La. R.S.

14: 42( A)(4). He pled not guilty. Following a jury trial, the jury found the defendant

guilty of the responsive offense of sexual battery, a violation of La. R.S. 14: 43. 1. 1

He moved for a post -verdict judgment of acquittal or, in the alternative, a new trial,

but the motion was denied. The defendant was sentenced to forty years at hard labor

without benefit of parole, probation, or suspension of sentence. The defendant

appeals.
In his sole assignment of error, he challenges his conviction by a non -

unanimous ( ten -to -two) jury verdict.

CONSTITUTIONALITY OF NON -UNANIMOUS VERDICT

The defendant argues the district court erred in instructing the jury that it could

convict him by less than a unanimous verdict, erred in denying the motion for new trial

based on the non -unanimous verdict, and erred in sentencing him on the basis of the

non -unanimous verdict in violation of the Sixth and Fourteenth Amendments to the

United States Constitution. The defendant cites Ramos v. Louisiana, _ U.S. _, 140

S. Ct. 1390, 206 L.Ed.2d 583 ( 2020).

In Ramos, U.S. at , 140 S. Ct. at 1397, the United States Supreme Court

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

The Ramos Court held that the right to a jury trial under the Sixth Amendment of the

United States Constitution, incorporated against the States by way of the Fourteenth

Amendment of the United States Constitution, requires a unanimous verdict to convict

a defendant of a serious offense. The Ramos Court further noted that the ruling applied

to those defendants convicted of felonies by non -unanimous verdicts whose cases are

1 See La. Code Crim. P. art. 814( A)( 12).

2

still pending on direct appeal.' Ramos, U.S. at , 140 S. Ct. at 1406. Thus,

where the defendant' s conviction was not final when Ramos was decided, the holding

of Ramos applies. State v. Bueso, 2019- 01675 ( La. 6/ 22/ 20), 297 So. 3d 719 ( per

curiam) ( citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L.

Ed. 2d 649 ( 1987)).

CONCLUSION

Accordingly, this assignment of error has merit. The defendant' s conviction and

sentence are vacated, and this case is remanded to the district court.

CONVICTION AND SENTENCE VACATED; REMANDED.

1 In Crehan v. Louisiana, _ U. S. S. Ct. _, 206 L.Ed. 2d 850 ( 2020), 2020 WL
1978930, Justice Alito concurred in the judgment with the understanding that in cases in which
the United States Supreme Court grants, vacates, and remands in light of Ramos, " the [ United
States Supreme Court] is not deciding or expressing a view on whether the question was properly
raised below but is instead leaving that question to be decided on remand." In Crehan, this court
noted the defendant made " a pro forma challenge to the constitutionality of his non -unanimous
guilty verdict." State v. Crehan, 2018- 0746 ( La. App. 1st Cir. 11/ 5/ 18), 2018 WL 5785479 at * 9,
writ denied, 2018- 2024 ( La. 4/ 15/ 19), 267 So. 3d 1124. We are aware that a constitutional
challenge may not be considered by an appellate court unless it was properly pleaded and raised
in the district court below. Vallo v. Gayle Oil Co., Inc., 94- 1238 ( La. 11/ 30/ 94), 646 So. 2d 859,
864- 865. Further, while there is no single procedure for attacking the constitutionality of a statute,
it has long been held that the unconstitutionality of a statute must be specially pleaded and the
grounds for the claim particularized. First, a party must raise the unconstitutionality in the district
court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds
outlining the basis of unconstitutionality must be particularized. State v. Hatton, 2007- 2377 ( La.
7/ 1/ 08), 985 So. 2d 709, 719- 720.

The defendant failed to follow the proper procedure for preserving his challenge to the non -
unanimous verdict in this matter. However, the error is reviewable as patent error. See State v.
Boyd, 2019- 00953 ( La. 6/ 3/ 20), 296 So. 3d 1024- 1025 ( per curiam).
The minutes reflect that only
ten of twelve jurors concurred in the verdict. Accordingly, this claim is properly before this court.