State Of Louisiana v. John Shallerhorn

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of June, 2023 are as follows:
BY Crichton, J.:
2022-KK-01385 STATE OF LOUISIANA VS. JOHN SHALLERHORN (Parish of Orleans
Criminal)
REVERSED AND REMANDED. SEE OPINION.

S
UPREME COURT OF LOUISIANA
No
. 2022-KK-01385
S
TATE OF LOUISIANA
VS.
JOHN SHALLERHORN
On
Writ of Certiorari to the Court of Appeal,
Fourth Circuit, Parish of Orleans Criminal
C
richton, J.
W
e granted the writ in this matter to answer the res nova question of whether
a defendant who is charged with first degree murder can elect a bench trial when the
state has filed a formal notice that it will not seek capital punishment. The question
presented involves the interpretation of Code of Criminal Procedure article 780,
specifically the meaning of the phrase “an offense other than one punishable by
death.” For the reasons set forth below, we reverse the court of appeal and hold that
after the state provides formal notice that it will not seek the death penalty, and
thereby elects to prosecute the offense of first degree murder as a non-capital case,
a defendant may waive a trial by jury and elect a bench trial.
BACKGROUND
On February 26, 2021, defendant John Shallerhorn was arrested for several
offenses, including on suspicion of first degree murder. On March 10, 2021, the state
filed notice that “for any charges for which the grand jury returns an indictment in
[this] case, the State will elect to forego capital punishment.” On June 17, 2021, an
Orleans Parish Grand Jury returned an indictment charging defendant with first
degree murder, a violation of La. R.S. 14:30, and armed robbery with a firearm, a
violation of La. R.S. 14:64.3.

2
Thereafter, on March 16, 2022, defendant filed a motion for a bench trial,
seeking to waive his right to a trial by jury pursuant to the provisions of La. C.Cr.P.
article 780. The state opposed this motion, and the trial court, agreeing with the state,
denied it. The trial court noted that though the state was not currently pursuing the
death penalty, “if something changes at the DA’s office and somehow death is back
on the table,” then the defendant could not waive a jury and elect a bench trial.
Defendant sought review in the court of appeal, which gran ted the writ and
affirmed the decision of the trial court. The court of appeal found that the defendant
cannot waive a jury trial or elect a bench trial, beca use the charge at issue here —
first degree murder —is “still a capital one insofar as it is ‘ punishable by death’”
under La. C.Cr.P. article 780. State v. Shallerhorn, 2022-0377, p.6 (La. App. 4 Cir.
8/19/22), 346 So. 3d 818, 821. Judge Jasmine dissented, explaining: “Once the State
filed its notice that it would not seek the death penalty, the State chose to prosecute
the first degree murder charge as a non-capital case,” and therefore the requirement
for trial by jury in a capital case “no longer applied. ” Id., 2022-0377, Dissent p.1,
346 So. 3d at 823. Defendant thereafter filed a writ application with this Court, and
we granted the application. State v. Shallerhorn, 2022-1385 (La. 1/25/23), 353 So.
3d 719.
ANALYSIS
To answer the question presented, we must interpret Code of Criminal
Procedure article 780, and therefore our inquiry begins, as it must, with the language
of the statute itself. State v. Taylor, 1999-2935, p.4 (La. 10/17/00), 769 So. 2d 535,
537. Criminal statutes must be “given a genuine construction, according to the fair
import of their words, taken in their usual sense, in connection with the context, and
with reference to the purpose of the provision.” La. R.S. 14:3. Courts must endeavor
to give an interpretation that will give the sta tute effectiveness and purpose, rather
than one that makes it meaningless. Taylor, 99-2935, p.4, 769 So. 2d at 537. In this

3
case, the lower court decisions are legal determinations; as such, a de novo standard
of review applies. State v. Thompson, 2011-0915, p.14 (La. 5/8/12), 93 So. 3d 553,
563.
Code of Criminal Procedure article 780 governs waiver of a jury trial and
election of a bench trial. It provides in Part A: “A defendant charged with an offense
other than one punishable by death may knowingly and intelligently waive a trial
by jury and elect to be tried by the judge.” (Emphasis added.) Likewise, La.C.Cr.P.
art. 782 provides:
A. A case in which punishment may be capital shall be tried by a jury
of twelve jurors, all of whom must concur to render a verdict. . .

B. Trial by jury may be knowingly and intelligently waived by the
defendant except in capital cases.

(Emphasis added.) See also La. Const. art. I, §17A (“A criminal case in which the
punishment may be capital, shall be tried before a jury of twelve persons. . . . Except
in capital cases, a defendant may knowingly and intelligently waive his right to a
trial by jury . . . .”) (emphasis added).
The question presented in this case is whether first degree murder is an
“offense other than one punishable by death” for purposes of La. C.Cr.P. article 780.
1
Therefore, for purposes of interpreting article 780, we must turn to the statute
defining the “offense” charged. No statutory or constitutional provision expressly
defines what constitutes an “offense . . . punishable by death.” However, since a
2007 amendment, punishments for the offense of first degree murder as defined in
La. R.S. 14:30(A) have been bifurcated into capital and non-capital provisions. The
statute provides:
C. (1) If the district attorney seeks a capital verdict, the offender shall
be punished by death or life imprisonment at hard labor without benefit
of parole, probation, or suspension of sentence, in accordance with the

1 Importantly, the election of the bench trial is the key issue here, as even a capital defendant can waive
a jury trial —at least for the culpability phase —by pleading guilty. See generally State v. Louviere ,
2000-2085 (La. 9/4/02), 833 So. 2d 885 (“[O]nly the issue of the ultimate penalty of death is strictly
required to be put before the jury.”).

4
determination of the jury. The provisions of Code of Criminal
Procedure Article 782 relative to cases in which punishment may be
capital shall apply.

(2) If the district attorney does not seek a capital verdict, the offender
shall be punished by life imprisonment at hard labor without benefit of
parole, probation or suspension of sentence. The provisions of Code of
Criminal Procedure Article 782 relative to cases in which punishment
is necessarily confinement at hard labor shall apply.

La. R.S. 14:30(C) (emphasis added).
2
We find that the plain language of La. C.Cr.P. article 780 permits this
defendant to elect a bench trial. When the state, through the district attorney, makes
its discretionary decision not to seek the death penalty, then La. R.S. 14:30(C)(2)
clearly instructs that the case is not “capital” and the refore the offense is not
“punishable by death.” Compare La. R.S. 14:30(C)(1) (“If the district attorney seeks
a capital verdict , the offender shall be punished by death or life imprisonment at
hard labor. . . .”), with La. R.S. 14:30(C)(2) (“If the district attorney does not seek
a capital verdict, the offender shall be punished by life imprisonment at hard labor.
. . .”) (emphasis added in both). Further, La. R.S. 14:30(C )(2) references Code of
Criminal Procedure article 782, specifically stating: “[t]he provisions of Code of
Criminal Procedure Article 782 relative to cases in which punishment is necessarily
confinement at hard labor shall apply.” La. R.S. 14:30(C)(2) (emphasis added). One
of those provisions, of course, is waiver of trial by jury in all cases “except capital”
ones. La. C.Cr.P. art. 782(B). Together, these provisions provide clear instruction

2 2007 La. Acts 125 amended La. R.S. 14:30 as follows:
C. Whoever commits the crime of first degree murder shall be punished by death or life
imprisonment at hard labor without benefit of parole, probation, or suspension of sentence
in accordance with the determination of the jury. Penalty provisions.
(1) If the district attorney seeks a capital verdict, the offender shall be punished by death
or life imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art
782 relative to cases in which punishment may be capital shall apply.
(2) If the district attorney does not seek a capital verdict, the offender shall be punished by
life imprisonment at hard labor without benefit of parole, probation or suspension of
sentence. The provisions of C.Cr.P. Art 782 relative to cases in which punishment is
necessarily confinement at hard labor shall apply.

5
from the legislature to treat the offense charged here, where the district attorney has
filed a formal notice not to pursue the death penalty, as an offense “other than one
punishable by death,” and therefore permits election of a bench trial under La.
C.Cr.P. article 780.
The Fourth Circuit examined these same provisions and reached the opposite
conclusion.3 Notwithstanding the s tate’s filing of notice that it does not intend to
seek a death sentence in this case, the court concluded that this prosecution for first
degree murder “is still a capital one insofar as it is ‘ punishable by death,’” and
therefore defendant cannot waive his right to a jury and elect a bench trial.
Shallerhorn, 2022-0377, p.5, 346 So. 3d at 821 (emphasis in original). We disagree
with the court of appeal majority that this case remains “punishable by death.” The
court of appeal is apparently referencing a situation— not presented here—where the
state changes its mind on the nature of the prosecution and revokes the formal notice.
This is a purely theoretical situation, as the state ha s in fact filed the formal notice
in this case, exercising its right to control the prosecution of the case under La.
C.Cr.P. art. 61 and R.S. 14:30(C)(2). 4 In any event, as noted above, the plain
language of the statute does not support this interpretation, as the statute requires the
district attorney to exercise his or her sole discretion to select the nature of the

3 With the exception of the court of appeal here, the circuit courts have determined that a case is
not considered “capital” after the district attorney elects not to seek the death penalty. See State v.
Lewis, 2009-846, p.10 (La. App. 3 Cir. 4/7/10), 33 So. 3d 1046, 1055 (where a defendant “was not
faced with the prospect of a death penalty,” he could elect a bench trial); State v. Lastrapes, 2019-
0056, p.23 (La. App. 3 Cir. 10/2/19), 280 So. 3d 679, 693 (“The statute is clear: if the district
attorney does not seek the death penalty, as was the situation in this case, the case is not considered
a capital case.”); see also State v. Singleton, 200 5-0622, pp.9-10 (La. App. 5 Cir. 1/31/06), 922
So. 2d 647, 652- 53 (finding, under La. R.S. 14:42, that “since the state did not seek a capital
verdict, defendant was entitled to waive his right to a jury trial”).
4 The state has not identified any case where it has revoked such a notice. Doing so, of course,
would result in a significant shift in the entire prosecution of the case, transforming it into a death
penalty prosecution. See generally La. C.Cr.P. art. 512 (requiring appointment of capital qualified
counsel in death penalty cases); State v. Brooks , 1994-2438 (La. 10/16/95), 661 So. 2d 1333
(requiring assistance of reasonably competent counsel acting as a diligent, conscientious advocate
for defendant’s life i n capital cases); La. C.Cr.P. arts. 905, 905.2 (requiring special sentencing
hearing before imposing death sentence); Tennard v. Dretke , 542 U.S. 274 (2004) (requiring
presentation of mitigating evidence at death penalty sentencing hearing); Wiggins v. Smi th, 539
U.S. 510 (2003) (requiring mitigation investigation in preparation for capital sentencing hearing).

6
offense— that is, to either seek capital punishment or not. The statute does not permit
the district attorney to exercise both options simultaneously.
Our holding today is consistent with State v. Serigne , 2016 -1034 (La.
12/6/17), 232 So. 3d 1227. In Serigne, the Court explained that where a defendant
“never faced the prospect of the death penalty,” 5 he was permitted to waive a jury
trial and elect a bench trial. 2016-1034, p.7, 232 So. 3d at 1231. The Court rejected
the “prior ‘capital classification’ jurisprudence” on which the lower court in that case
relied. Id.6 Here, the Fourth Circuit distinguished Serigne, noting tha t unlike
defendant Serigne, Shallerhorn did in fact “face the prospect of the death penalty”
when the state charged him with a capital offense, “at least until the state notified
the defense that it did not intend to seek that punishment.” Shallerhorn, 2022-0377,
p.4, 346 So. 3d at 820. Again, we find this distinction to be unavailing for the same
reason the court of appeal’s position that Shallerhorn’s offense remains “punishable
by death” is unavailing— defendant at this moment in time does not “face the
prospect of the death penalty” at all. The state has filed its formal notice not to seek
the death penalty, and thereby has elected, at its discretion, to proceed with this
prosecution as non-capital.
Finally, our interpretation is also in accord with Article 2 of the Code of
Criminal Procedure, which instructs that the Code is “intended to provide for the just
determination of criminal proceedings,” and the provisions “ shall be construed to
secure simplicity in procedure, fairness in administrati on, and the elimination of

5 In Serigne, the defendant was indicted for aggravated rape committed at a time when that crime
was punishable by death. After the United States Su preme Court held the death penalty was
unconstitutional for a non-homicide offense, see generally 2016-1034, p.2 n.1, 232 So. 3d at 1228
n.1, the defendant waived his right to trial by jury and, following a bench trial, was convicted of
aggravated rape. Th ough the court of appeal in Serigne overturned the conviction, finding the
defendant was ineligible to waive the death penalty because the aggravate d rape charge was, at
one time, considered “capital,” this Court reversed the court of appeal.
6 The Serigne case contains a thorough description of the evolution of the classification of capital
and non-capital crimes in Louisiana and in the United States Supreme Court. 2016- 1034, pp.4-6,
232 So. 3d at 1229-30.

7
unjustifiable delay.” Permitting a defendant to elect a bench trial in a first degree
murder case that is not a capital offense simplifies the trial process and eliminates
delay, while at the same time providing fairness to the defendant who opts for such
a trial. See generally Duncan v. State , 391 U.S. 145, 160 (1968) (noting that the
benefits of trial without a jury include “the benefits to efficient law enforcement and
simplified judicial administration resulting from the availability of speedy and
inexpensive nonjury adjudications”).7
CONCLUSION
For the reasons set forth above, we reverse the majority of the court of appeal.
When the state opts not to seek the death penalty, then La. R.S. 14:30(C)(2) clearly
instructs that the case is not “capital” and therefore the offense is not “punishable by
death” under Code of Criminal Procedure article 780. Thus, under the plain language
of La. C.Cr.P. article 780, this defendant may elect a bench trial, because the state
has given notice that it does not seek the death penalty in this case.
REVERSED AND REMANDED

7 Any such waiver must, of course, be unequivocal . See La. C.Cr.P. art. 780(A) (“A defendant
charged with an offense other than one punishable by death may knowingly and intelligently waive
a trial by jury and elect to be tried by the judge.”) (emphasis added). This Court has continued to
assess the “ knowing and intelligent” waiver standard by considering the totality of the
circumstances and has declined to adopt rigid standards for that waiver colloquy . See generally
State v. Johnson, 389 So. 2d 1302, 1305 (La. 1980) (“ The record also bears witness to the facts
that the defendant’s options were presented to him by the trial judge, as is required by C.Cr.P. art.
780, and that the defendant stated his election to waive jury trial not once but twice, clearly and
unequivocally. Greater proof of knowing and intelligent waiver has been neither constitutionally
nor jurisprudentially required.”). See also State v. Wilson, 437 So. 2d 272, 275 (La. 1983) (“I n
order to protect this valuable right, as well as to prevent postconviction attacks on the waiver, the
better practice is for the trial judge to advise the defendant personally on the record of his right to
trial by jury and require the defendant to waive the right personally either in writing or by oral
statement in open court on the record. By this procedure, the trial judge not only insures that an
express waiver is recorded, but also assures that the waiver is made voluntarily and knowingly.”)
(internal citation omitted).