State of Louisiana v. Marvin Santiago

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #022

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 10th day of May, 2024 are as follows:

PER CURIAM:

2023-K-00501 STATE OF LOUISIANA VS. MARVIN SANTIAGO (Parish of St. Bernard)

REVERSED AND REINSTATED. SEE PER CURIAM.

Weimer, C.J., dissents and assigns reasons.
Hughes, J., dissents for reasons assigned by Chief Justice Weimer.
Crichton, J., additionally concurs and assigns reasons.
Griffin, J., dissents for reasons assigned by Chief Justice Weimer.

SUPREME COURT OF LOUISIANA

No. 2023-K-00501

STATE OF LOUISIANA

VS.

MARVIN SANTIAGO

On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of St. Bernard

PER CURIAM:

We granted the State’s application to consider whether the court of appeal

correctly found that defendant’s claim that he was denied peremptory challenges to

which he was entitled was preserved for appellate review. After careful review, we

find that the court of appeal erred in determining that defendant preserved the claim

for appeal based on a “tacit objection.” The record clearly shows that counsel did

not object, as required by Code of Criminal Procedure art. 841, to the trial court’s

ruling denying him the full twelve peremptory challenges to which he was entitled.

Accordingly, we reverse the court of appeal’s opinion. Defendant’s conviction for

failure to register and notify as a sex offender, and sentence imposed by the trial

court, are hereby reinstated and affirmed.

Defendant was charged with failure to register and notify as a sex offender, in

violation of La. R.S. 15:542.1.4, after he failed to renew his registration in 2020.

Defendant testified at trial that he repeatedly attempted to register at the detective’s

bureau, but he was unable to do so because the building was locked during and due

to COVID restrictions. A detective testified that he was present at the detective’s

bureau and, although the building was locked, instructions were clearly posted with

a phone number at which he could be reached, but defendant never called.

According to the detective, all other persons required to register during this time

were able to do so. After trial, a St. Bernard Parish jury found defendant guilty as

charged. The district court sentenced him to serve four years imprisonment at hard

labor.

During jury selection, the district court limited the State and defense to six

peremptory challenges each, although the law requires twelve when, as here, the

offense is necessarily punishable by imprisonment at hard labor. 1 After voir dire of

the first jury panel, the trial court informed the parties that the State had three

remaining peremptory challenges, and the defense had exhausted its six peremptory

challenges. Defense counsel did not object. After voir dire of the second panel, the

defense then attempted to exercise a seventh peremptory challenge against a

prospective juror who had attended school with the prosecutor’s mother. After the

trial court did not allow defense counsel a seventh peremptory challenge, counsel

did not object, but instead stated, “I thought we had seven.”

Midway through the State’s presentation of its case at trial, the trial judge

informed the parties that upon reading Code of Criminal Procedure art. 799, he

discovered that each party had been entitled to 12 peremptory challenges rather than

six as the court had directed, as the charged offense was necessarily punishable by

imprisonment at hard labor. Defense counsel requested a mistrial at that time. The

trial court denied the motion for a mistrial, and later denied a motion for new trial,

which was made based on the denial of a mistrial.

The court of appeal reversed the conviction in a divided decision. State v.

Santiago, 2022-0607 (La. App. 4 Cir. 3/7/23), 359 So.3d 540 (Lobrano, J.,

1
Code of Criminal Procedure art. 799 provides:

In trials of offenses punishable by death or necessarily by imprisonment at hard
labor, each defendant shall have twelve peremptory challenges, and the state
twelve for each defendant. In all other cases, each defendant shall have six
peremptory challenges, and the state six for each defendant.

The offense for which defendant was tried and convicted is punishable “with hard labor for not
less than two years nor more than ten years without benefit of parole, probation, or suspension of
sentence.” La. R.S. 15:542.1.4 (A)(1).

2

dissenting). The majority of the panel correctly found that the trial court erred in

denying defendant the full 12 peremptory challenges to which he was entitled by La.

C.Cr.P. art. 799. The majority further found that defendant “tacitly objected” to the

trial court’s erroneous ruling by attempting to exercise a seventh peremptory

challenge, and therefore the error was preserved for appellate review. After stating

that the State failed to show the error was harmless, i.e. that the jury’s verdict was

unattributable to the error, the court of appeal reversed the conviction.2

Judge Lobrano dissented, correctly observing that “[t]he contemporaneous

objection rule does not allow a ‘tacit’ or ‘implicit’ objection.” Instead, Code of

Criminal Procedure art. 841 provides that an irregularity or error cannot be raised on

appeal unless an objection was made at the time of the occurrence, and further “that

the party articulate the basis of the objection[,]” citing and quoting La. C.Cr.P. art.

841(A) (“It is sufficient that a party, at the time the ruling or order of the court is

made or sought, makes known to the court the action which he desires the court to

take, or of his objections to the action of the court, and the grounds therefor.”).

2
As a preliminary matter, the court of appeal determined that it would treat defendant’s appeal as
timely because, although it was not filed within 30 days after the ruling on the motion to reconsider
sentence, it was filed within the post-conviction limitations period, citing State v. Counterman,
475 So.2d 336 (La. 1985).

After finding that the claim was preserved for review and required reversal, the court of appeal
also found merit to defendant’s alternative claim that defense counsel rendered ineffective
assistance by failing to object to the trial court’s erroneous ruling. That determination was
unnecessary given that the court of appeal had already found the error required reversing
defendant’s conviction.

While we reverse the court of appeal and reinstate defendant’s conviction, we do not reach his
claim of ineffective assistance of counsel. As a general rule, claims of ineffective assistance of
counsel are more properly raised by application for post-conviction relief in the trial court where
a full evidentiary hearing may be conducted if warranted. See, e.g., State v. Hamilton, 92-2639, p.
4 (La. 7/1/97), 699 So.2d 29, 31. We think it appropriate to relegate defendant’s claim of
ineffective assistance here to collateral review, where he will have the burden of showing that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. See Strickland v. Washington, 466 U.S. 668, 694–95, 104 S.Ct. 2052,
2068–69, 80 L.Ed.2d 674 (1984) (“When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.”); cf. State v. Chandler, 2022-0156, p. 5 (La. 5/5/23), 362 So.3d
347, 352 (“The seating of the juror alone does not establish prejudice under Strickland.”).
3

Because counsel did not timely object to the restriction on peremptory challenges

during voir dire, the dissent found the claim was not preserved for appellate review.

We agree with the dissent that Code of Criminal Procedure art. 841 does not

leave room for “tacit” objections in the jurisprudence. This article provides in

Part(A) (with emphasis added):

An irregularity or error cannot be availed of after verdict unless it was
objected to at the time of occurrence. A bill of exceptions to rulings or
orders is unnecessary. It is sufficient that a party, at the time the ruling
or order of the court is made or sought, makes known to the court the
action which he desires the court to take, or of his objections to the
action of the court, and the grounds therefor.

An objection that fails to make known to the court the action a party desires the court

to take, and the grounds therefor, is not tacit. Rather, it is no objection at all. To the

extent the court of appeal found otherwise, it relied on a legal fiction to construct

something from nothing, in direct contradiction of the plain language of Art. 841.3

Cf. State v. Sagastume, 2022-0184 (La. 12/8/23), 379 So.3d 1243.

Our law is settled that an objection need not be raised by incantation. “It is

sufficient that a party, at the time the ruling or order of the court is made or sought,

makes known to the court the action which he desires the court to take, or of his

objections to the action of the court, and the grounds therefor.” La. C.Cr.P. 841; State

v. Boutte, 384 So.2d 773 (La. 1980). The requirement that an objection be raised

contemporaneously is not meant to be inflexible but is designed “to promote judicial

efficiency and to insure fair play.” State v. Lee, 346 So.2d 682, 684 (La. 1977). This

Court has further observed that:

3
Statutory interpretation begins with “the language of the statute itself.” Cat’s Meow v. City of
New Orleans, 1998-601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198; see also Connecticut Nat’l
Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“[C]anons
of construction are no more than rules of thumb that help courts determine the meaning of
legislation, and in interpreting a statute a court should always turn first to one, cardinal canon
before all others. We have stated time and again that courts must presume that a legislature says
in a statute what it means and means in a statute what it says there.... When the words of a statute
are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”) (citations
and internal quotation marks omitted).
4

There are two purposes to this rule: to put the trial court on notice of
the alleged irregularity or error, so that the trial judge can cure the error,
and to prevent a party from gambling for a favorable outcome and then
appealing on errors that could have been addressed by an objection if
the outcome is not as hoped.

State v. Lanclos, 2007-0082, p. 6 (La. 4/8/08), 980 So.2d 643, 648.

Even accepting for the sake of argument that counsel made known to the trial

court the action counsel wished to take by attempting to exercise a seventh

peremptory challenge, counsel did not state the grounds for any objection. Thus, the

trial court was not put on notice of the error during voir dire and given an opportunity

to cure it. Because counsel did not object to the trial court’s erroneous ruling at the

time of its occurrence, the error cannot be availed of after verdict in accordance with

La. C.Cr.P. art. 841.

While it is settled that an objection need not be raised by incantation, Article

841 requires that a defendant make a contemporaneous objection to a ruling, and the

article further provides: “The nature of the objection and grounds therefor shall be

stated at the time of objection.” That did not happen here. Instead, the record shows

that defendant did not object during voir dire when he was denied the full twelve

peremptory challenges to which he was entitled, and he later assigned that as error

on appeal. Therefore, the court of appeal erred in reviewing that assignment of error

and in finding that a “tacit objection” sufficed to preserve the issue for appellate

review. Accordingly, we reverse the ruling of the court of appeal. We reinstate

defendant’s conviction and sentence, which we hereby affirm.

REVERSED AND REINSTATED

5

SUPREME COURT OF LOUISIANA

No. 2023-K-00501

STATE OF LOUISIANA

VS.

MARVIN SANTIAGO

On Writ of Certiorari to the Court of Appeal, Fourth Circuit,
Parish of St. Bernard

WEIMER, C.J., dissenting.

As a general rule, multiple harmless errors do not result in a reversal. State v.

Brown, 18-1999, p. 117 (La. 9/30/21), 330 So.3d 199, 284; State v. Holliday, 17-

1921, p. 87 (La. 1/29/20), 340 So.3d 648, 714; see also Mullen v. Blackburn, 808

F.2d 1143, 1147 (5th Cir. 1987). However, in this matter, the State, the defense, and

the district court all erred by applying the wrong number of peremptory challenges

available. See La. C.Cr.P. art. 799 (“In trials of offenses punishable by death or

necessarily by imprisonment at hard labor, each defendant shall have twelve

peremptory challenges, and the state twelve for each defendant.”) During jury

selection, after the defense exercised the sixth peremptory challenge, the district

judge stated that this defendant was limited to six peremptory challenges. When the

defense then attempted to exercise a seventh peremptory challenge, the district court

denied that challenge by declaring that the defendant had already exhausted his

peremptory challenges. “[A]n erroneous ruling depriving an accused of a peremptory

challenge violates his substantial rights and constitutes reversible error.” Holliday,

17-1921 at 28, 340 So.3d at 677 (citing State v. Cross, 93-1189, p. 7 (La. 6/30/95),

658 So.2d 683, 686). During side bar conference, midway through the State’s

presentation of its case, the district court recognized its improper limitation on the

number of peremptory challenges available to the defendant. Without pause, the

defense requested a mistrial on that issue. “A mistrial may be ordered, and in a jury

case the jury dismissed, when . . . [t]here is a legal defect in the proceedings which

would make any judgment entered upon a verdict reversible as a matter of law.” La.

C.Cr.P. art. 775(3). It is my belief that under the totality of the circumstances, the

defense objected in a manner that was adequate to put the district court on notice of

the issue. As the majority opinion states, “it is settled that an objection need not be

raised by incantation.” State v. Santiago, 23-0501 (La. __/__/24), slip op. at 5. I

agree with the majority that the use by the court of appeal of the term “tacit objection”

is not legally supported.

Where otherwise non-reversible errors aggregate in such a way as to result in

a denial of the right to a fair trial, cumulative error doctrine justifies reversal. See

United States v. Lara, 23 F.4th 459, 484 (5th Cir. 2022) (“The cumulative error

doctrine provides that an aggregation of non-reversible errors (i.e., plain errors failing

to necessitate reversal and harmless errors) can yield a denial of the constitutional

right to a fair trial, which calls for reversal.”) (internal citation omitted). The doctrine

is applied only in rare instances, in cases in which the errors so fatally infected the

trial that they violated the trial’s fundamental fairness. Id. The doctrine justifies

reversal only in the unusual case in which synergistic or repetitive error violates the

defendant’s constitutional right to a fair trial. Id. In this particular case, there were

too many errors by too many participants, including the district court, to have

confidence in the outcome when the district court limited the number of peremptory

challenges to six on a twelve-person jury. I would reverse the conviction and remand

to the district court for a new trial.

2

SUPREME COURT OF LOUISIANA

No. 2023-K-00501

STATE OF LOUISIANA

VS.

MARVIN SANTIAGO

On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of St. Bernard

Crichton, J., additionally concurs and assigns reasons.
I write separately to emphasize the critical importance of the

contemporaneous objection rule, La.C.Cr.P. art. 841(A). Lawyers must be competent

in the law, including its procedural rules. La. Rules of Prof. Conduct, R. 1.1(a)

(“Competent representation requires the legal knowledge, skill, thoroughness and

preparation reasonably necessary for the representation.”). It is the role of attorneys

to challenge rule violations that occur in a courtroom—objecting and articulating

their reasons is not a burden, it is simply their job.

As explained in the per curiam opinion, requiring contemporaneous

objections promotes judicial efficiency by “put[ting] the trial judge on notice of the

alleged irregularity so that he may cure the problem” at the time it occurs. State v.

Thomas, 427 So.2d 428, 433 (La. 1982). Barring appellate review of an irregularity

or error that was not objected to at the time of the occurrence “prevent[s] a defendant

from gambling for a favorable verdict and then resorting to appeal on errors that

might easily have been corrected by objection.” Id.

In this case, when the trial court erroneously violated defendant’s statutory

right to twelve peremptory challenges, his attorney did not object and only

challenged the decision after it was too late for the trial judge to cure the error.

Accordingly, as I have ruled previously, that issue was not preserved for appellate

review and should be deemed waived. See La. C.Cr.P. art. 841(A), see also, State v.

Johnson, 2021-01850, p. 2, n. 1, (La. 2/22/22), 333 So.3d 441, 442 (Crichton, J.,

concurring) (citing State v. Ruiz, 06-1755, p. 8 (La. 4/11/07), 955 So.2d 81, 87, where

this Court held Louisiana’s contemporaneous objection rule provides “[a]n

irregularity or error cannot be availed of after verdict unless it was objected to at the

time of the occurrence” and failure to do so constitutes waiver.). Thus, the court of

appeal erred in considering the waived issue.

The court of appeal likewise erred in considering defendant’s claim of

ineffective assistance of counsel on direct review. This Court has long held that such

claims are best reserved for collateral review, see e.g., State v. Deloch, 380 So.2d 67

(La. 1980), and for good reason. Unlike on direct appeal, in post-conviction

proceedings, the trial court may conduct an evidentiary hearing. New evidence

relating to counsel competency that is not contained in the appellate record may be

admitted into evidence for full consideration. While there are occasional exceptions

to this rule, see e.g., State v. Ratcliff, 416 So.2d 528, 530 (La. 1982), this is not one

of those rare cases. Accordingly, I agree with the per curiam opinion reversing the

ruling of the court of appeal that found merit in defendant’s claim of ineffective

assistance of counsel.1

1
The dissent envisions relief for defendant under the cumulative error doctrine which provides
that in rare cases an aggregation of non-reversible errors can yield a denial of the constitutional
right to a fair trial. United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir.2012) (en banc). I
begin by pointing out that this case does not involve multiple errors to aggregate. There was only
one error alleged: the denial of the correct number of peremptory challenges. Furthermore, the per
curiam opinion does not conclude the error was harmless, only that it was not preserved for review.
For these reasons, the cumulative error theory of relief advanced by the dissent does not apply to
this case. Moreover, even if this case did involve multiple, harmless errors, this Court has never
endorsed cumulative error arguments. Instead, this Court has universally found that harmless
errors, however numerous, do not aggregate to reach the level of reversible error. State v. Sheppard,
350 So.2d 615, 651 (La. 1977) (“We are unwilling to say that the cumulative effect of assignments
of error lacking in merit warrants reversal of a conviction.”); see also, e.g., State v. Strickland, 94-
0025, pp. 51–52 (La. 11/1/96), 683 So.2d 218, 239; State v. Tart, 93-0772, p. 55 (La. 2/9/96), 672
So.2d 116, 154; State v. Copeland, 530 So.2d 526, 544–45 (La. 1988) (citing State v. Graham, 422
So.2d 123, 137 (La. 1982)). Other courts treating the issue in greater depth have reached the same
conclusion. Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (rejecting cumulative error
claim and finding that “twenty times zero equals zero”). Accordingly, consistent with this Court’s
long-held disapproval of this theory of relief, I too reject it.
2