State of Louisiana Versus Ronald Gasser

STATE OF LOUISIANA NO. 21-KA-255

VERSUS FIFTH CIRCUIT

RONALD GASSER COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-7108, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

December 16, 2021

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED
HJL
RAC

JOHNSON, J., DISSENTS, WITH REASONS
MEJ

COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLEE,
RONALD GASSER
Dane S. Ciolino
Clare S. Roubion

LILJEBERG, J.

The State of Louisiana appeals the trial court’s judgment granting

defendant’s Motion to Quash Second Degree Murder Indictment. For the

following reasons, we affirm.

PROCEDURAL HISTORY

On February 2, 2017, defendant, Ronald Gasser, was charged by grand jury

indictment with second degree murder, in violation of La. R.S. 14:30.1. Defendant

proceeded to trial before a twelve-person jury on January 16, 2018. On January

26, 2018, the jury returned a non-unanimous verdict of ten to two finding

defendant guilty of the lesser offense of manslaughter in violation of La. R.S.

14:31. On March 15, 2018, the trial court sentenced defendant to thirty years

imprisonment at hard labor.

Defendant appealed his conviction and sentence for manslaughter,

specifically challenging the sufficiency of the evidence, his non-unanimous

verdict, and the trial court’s admission of evidence. On July 3, 2019, this Court

affirmed defendant’s conviction and sentence for manslaughter. See State v.

Gasser, 18-531 (La. App. 5 Cir. 7/3/19), 275 So.3d 976.

Defendant then filed a writ application challenging this Court’s opinion with

the Louisiana Supreme Court. While defendant’s writ application was pending, on

April 20, 2020, the United States Supreme Court handed down its decision in

Ramos v. Louisiana, 590 U.S. - - , 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). In

Ramos, the United States Supreme Court found that the Sixth Amendment right to

a jury trial, as incorporated against the states by the Fourteenth Amendment,

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

On June 3, 2020, the Louisiana Supreme Court remanded the matter to this

Court for further proceedings and to conduct a new error patent review in light of

Ramos, supra. See State v. Gasser, 19-1220 (La. 6/3/20), 296 So.3d 1022. On

21-KA-255 1

July 15, 2020, this Court, in light of Ramos, found defendant is entitled to a new

trial, vacated the non-unanimous jury verdict, and remanded to the trial court for

further proceedings. State v. Gasser, 18-531 (La. App. 5 Cir. 7/15/20), 307 So.3d

1119, 1121.

On December 7, 2020, the State filed “State’s Notice of Intent to Prosecute

for Second Degree Murder,” indicating that since defendant’s conviction for the

responsive verdict of manslaughter was vacated, it intended to prosecute defendant

at his retrial for the original charge of second degree murder. On December 30,

2020, defendant filed a Motion to Quash Second Degree Murder Indictment,

arguing that double jeopardy and the right to appeal barred the State from

prosecuting him for second degree murder. The State filed a response on January

21, 2021.

A hearing on the motion to quash was held on January 27, 2021, and the trial

court took the matter under advisement. At a hearing on February 10, 2021, the

trial court granted the motion to quash and ordered that the State is precluded from

prosecuting defendant for the original charge of second degree murder. The trial

court also issued written reasons for the judgment that same day, stating that when

the jury came back with the ten to two verdict to convict defendant of

manslaughter, it was a legal verdict and also a legal acquittal of the second degree

murder charge. The trial court found that to allow the State to retry defendant on

the second degree murder charge would violate defendant’s protections against

double jeopardy and his right to appeal. The State appeals.1

1
The State filed a Motion for Appeal, which was granted on February 22, 2021. Thereafter, on April 19,
2021, the State filed a bill of information charging defendant with one count of manslaughter in violation of La. R.S.
14:31. On April 26, 2021, this Court granted the State’s motion for a stay of the trial court proceedings pending
resolution of the State’s appeal, “subject to the exceptions set forth in La. C.Cr.P. art. 916 and as otherwise provided
by law.”

21-KA-255 2

LAW AND DISCUSSION

On appeal, the State argues that the trial court erred by granting defendant’s

Motion to Quash Second Degree Murder Indictment. The State asserts that

prosecuting defendant for the original charge of second degree murder does not

violate either the protections of double jeopardy or the right to appeal.

We first address the State’s arguments regarding double jeopardy. The State

asserts that while a ten to two verdict was “facially authorized” by La. C.Cr.P. art.

782 and La. Const. art. I, §17 at the time of defendant’s trial, we now know under

Ramos that the provisions of these laws allowing non-unanimous jury verdicts

were unconstitutional under the United States Constitution. Thus, the State argues

that defendant’s conviction for manslaughter was a nullity that did not serve as

either a conviction or an implied acquittal. Rather, it was “no verdict at all.” As

such, the State concludes that there is no double jeopardy bar to prosecuting

defendant for the original charge of second degree murder at his retrial.

The State further notes that at the time of the verdict, it had every reason to

believe that the ten to two verdict for manslaughter was constitutional. It contends

that pursuant to Ramos, the proper constitutional response to the ten to two

manslaughter verdict would have been either: (1) the jury would have been sent

back to deliberate longer and would have ultimately rendered a unanimous verdict;

or (2) the jury would have deadlocked, a hung jury and mistrial would have been

declared, and the State would have been permitted to retry defendant for the

original charge of second degree murder.

In response, defendant contends that double jeopardy precludes the State

from retrying him for second degree murder. He asserts that the responsive verdict

by a ten to two vote was lawful under the Louisiana Constitution and the Louisiana

Code of Criminal Procedure at the time it was rendered and thus, it served as an

acquittal of the second degree murder charge. Defendant avers that the Ramos

21-KA-255 3

decision did not reverse or affect his acquittal for second degree murder but rather

only reversed his manslaughter conviction. He states that in Ramos, the court

found that a unanimous verdict is required to convict a defendant of a serious

offense, but the court did not address whether a unanimous verdict is required to

acquit. Defendant argues that what matters in determining whether defendant was

in jeopardy is whether he would have served out his sentence under the purportedly

null verdict but for the appeal.

Defendant further asserts that by its nature, the United States Constitution

does not regulate what is required to acquit a person of a crime in a state criminal

court, stating that the Fourteenth Amendment “has no concerns with acquittals.”

He asserts that the United States Constitution sets the floor, not the ceiling, on

individual rights. He avers that while the United States Constitution now prohibits

the State of Louisiana from convicting any defendant of murder on less than a

unanimous verdict, it does not now, and did not prior to Ramos, prohibit a non-

unanimous acquittal.

The double jeopardy clauses of the United States Constitution and the

Louisiana Constitution protect a defendant from being punished or prosecuted

twice for the same offense. U.S. Const. Amend. V; La. Const. art. I, §15. See also

State v. Drewery, 12-236 (La. App. 5 Cir. 1/30/13), 108 So.3d 1246, 1256.

La. C.Cr.P. art. 591 states:

No person shall be twice put in jeopardy of life or liberty for the same
offense, except, when on his own motion, a new trial has been granted
or judgment has been arrested, or where there has been a mistrial
legally ordered under the provisions of Article 775 or ordered with the
express consent of the defendant.

The prohibition against double jeopardy is a guarantee against a second

prosecution for the same offense after an acquittal or conviction, and against

multiple prosecutions for the same offense. State v. Smith, 95-61 (La. 7/2/96), 676

21-KA-255 4

So.2d 1068, 1069; State ex rel. Robinson v. Blackburn, 367 So.2d 360, 362 (La.

1979).

A conviction on a lesser included offense operates as an acquittal on the

greater charged offense. La. C.Cr.P. art. 598; State v. Graham, 14-1801 (La.

10/14/15), 180 So.3d 271, 277; Green v. United States, 355 U.S. 184, 78 S.Ct. 221,

2 L.Ed.2d 199 (1957). La. C.Cr.P. art. 598(A) provides: “When a person is found

guilty of a lesser degree of the offense charged, the verdict or judgment of the

court is an acquittal of all greater offenses charged in the indictment and the

defendant cannot thereafter be tried for those offenses on a new trial.”

The State contends that State v. Goodley, 423 So.2d 648 (La. 1982), supports

the conclusion that the unconstitutional manslaughter verdict in this case was null

and thus, should not bar defendant’s prosecution for second degree murder at his

retrial. In Goodley, the defendant was indicted for first degree murder. At trial,

the trial court incorrectly instructed the jury that while all twelve jurors had to

concur in order to find the defendant guilty as charged, only ten of the twelve had

to agree on the responsive verdicts. The jury found the defendant guilty of

manslaughter by a ten to two vote. On appeal, in an error patent review, the

Louisiana Supreme Court reversed the conviction on the grounds that it was

invalid because it was not returned by a unanimous jury. Goodley, 423 So.2d at

649.

On remand in Goodley, the State attempted to retry the defendant for first

degree murder. The defendant filed a motion to quash the first degree murder

indictment based on principles of double jeopardy. The trial court granted the

motion, ruling that jeopardy had attached, and therefore, the defendant could not be

retried for first degree murder. The State appealed, and the Louisiana Supreme

Court found that the principles of double jeopardy did not preclude retrial of the

defendant, stating, “Under the Fifth Amendment, where a non-waivable defect,

21-KA-255 5

such as an illegal verdict, prevents a jury from delivering either a conviction or

acquittal at a defendant’s first trial, that defendant cannot avail himself of the plea

of double jeopardy.” Goodley, 423 So.2d at 651.2

The State also cites State v. Davenport and State v. Mayeux in support of its

position. In State v. Davenport, 13-1859 (La. 5/7/14), 147 So.3d 137, the

Louisiana Supreme Court found that double jeopardy did not bar the State from re-

trying the defendant on the original charge after the trial judge entered an unlawful

directed verdict of acquittal in a jury trial, which is a legal nullity. The Court

found that because the trial judge was not authorized by law to grant a directed

verdict of acquittal, the illegally rendered verdict had no legal effect. Id. at 151.

In State v. Mayeux, 498 So.2d 701 (La. 1986), the Court found that double

jeopardy did not bar the State from re-trying the defendant for the original charge

of aggravated battery where the jury had returned a verdict of “attempted

aggravated battery,” which is not specifically designated as a crime by the

legislature. The Court found that the jury rendered an illegal verdict and that the

Fifth Amendment does not bar a retrial when a jury’s verdict amounted to a

conviction of a non-crime and, as such, it could not operate as a conviction or an

acquittal. Id. at 705.

The present case is distinguishable from the Goodley, Davenport, and

Mayeux cases cited by the State. As noted by the trial judge, at the time of the

verdict in the present case, the non-unanimous ten to two verdict was authorized by

the laws of this state. There was no defect in the verdict at the time it was

rendered, whereas the verdicts in Goodley, Davenport, and Mayeux were invalid at

the time they were rendered. Because the verdicts in Goodley, Davenport, and

Mayeux were not legal and valid at the time they were rendered, they did not act as

2
In Goodley, although the Supreme Court found that double jeopardy did not preclude a retrial of the defendant on
the original charge, it found that to retry him for the crime of first degree murder would unconstitutionally impair
the exercise of his right to appeal under La. C.Cr.P. art. 912.1 and La. Const. Art. I, § 19 (1974).

21-KA-255 6

acquittals of the charged offenses. The ten to two verdict in the present case was

valid at the time it was rendered, and therefore, it acted as an acquittal of the

second degree murder charge.

After the verdict was rendered at defendant’s trial, the United States

Supreme Court subsequently issued its ruling in Ramos, holding that a unanimous

jury verdict is required to convict a defendant of a serious offense. The Ramos

court specifically indicated that its holding applies to cases pending on appeal and

to future cases. 140 S.Ct. at 1407. Defendant’s case was still on appeal awaiting

review by the Louisiana Supreme Court at the time of the Ramos decision and thus,

defendant was entitled to have his ten to two manslaughter conviction vacated

pursuant to Ramos. Accordingly, this Court vacated defendant’s manslaughter

conviction and remanded the case to the trial court for further proceedings. See

Gasser, 307 So.3d at 1121.

At the time of defendant’s trial in the present case, a unanimous verdict was

not required by Louisiana law in order to acquit a defendant. Therefore, when the

jury returned a ten to two verdict of guilty of manslaughter, it served as a valid

acquittal of the second degree murder charge, precluding retrial of defendant for

second degree murder based on the principles of double jeopardy. See La. C.Cr.P.

art. 598(A). 3

After review, we find no error in the trial court’s judgment granting

defendant’s Motion to Quash Second Degree Murder Indictment on the grounds of

3
Although the State asserts that this Court and the Third Circuit have found non-unanimous acquittals to
be invalid, citing State v. Rodgers, 21-190 (La. App. 3 Cir. 4/14/21), 318 So.3d 315, writ denied, 21-675
(La. 9/27/21), 2021 WL 4398246, 324 So.3d 87; and State v. Robinson, 21-K-197 (La. App. 5 Cir.
4/28/21) (unpublished writ disposition), we note that these cases involved trials occurring after the Ramos
decision. Because we find the portion of the verdict that acquitted Mr. Gasser of second degree murder
was a valid verdict at the time it was rendered, which resolves the issue before us in this appeal, we
decline to address the issue of whether a non-unanimous acquittal would be valid for cases where the
offense occurred prior to January 1, 2019, but which are tried subsequent to the Ramos decision.

21-KA-255 7

double jeopardy. Accordingly, we affirm the trial court’s judgment providing that

defendant cannot be retried for second degree murder.

The State also argues that the right to appeal does not bar prosecution of

defendant for the original charge of second degree murder on retrial. However,

considering our finding that double jeopardy bars the prosecution of defendant for

second degree murder, we pretermit discussion of the State’s claims regarding the

right to appeal.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990). Our review reveals no errors patent in this case.

DECREE

For the reasons stated above, we affirm the trial court’s judgment granting

defendant’s Motion to Quash Second Degree Murder Indictment.

AFFIRMED

21-KA-255 8

STATE OF LOUISIANA NO. 21-KA-255

VERSUS FIFTH CIRCUIT

RONALD GASSER COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion in this matter. I find that the

trial court erroneously granted Defendant’s, Ronald Gasser, motion to quash his

second degree murder indictment for the following reasons.

In this matter, Defendant was charged with second degree murder. The jury

returned a non-unanimous verdict of 10-2 and convicted Defendant of the lesser

offense of manslaughter. Defendant was sentenced to 30 years imprisonment at hard

labor. Pursuant Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390, 206 L.Ed.2d 583

(2020) and State v. Gasser, 19-1220 (La. 6/3/20); 296 So.3d 1022, Defendant’s

conviction and sentence for manslaughter were vacated, and the matter was

remanded to the trial court for a new trial. See, State v. Gasser, 18-531 (La. App. 5

Cir. 7/15/20); 307 So.3d 1119, 1121. Upon remand, the State filed its notice of intent

to prosecute Defendant for second degree murder. In opposition, Defendant filed

the motion to quash at issue, which was granted by the trial court.

The majority opinion finds that the 10-2 verdict was a valid acquittal of the

second degree murder charge, which precludes retrial of Defendant for second

degree murder under the principle of double jeopardy, because a unanimous verdict

was not required under Louisiana law. However, the opinion also acknowledges that

same non-unanimous jury verdict was found to be unconstitutional in Ramos for

conviction purposes. To vacate a jury verdict convicting a defendant because it was

a non-unanimous jury verdict then uphold the implied acquittal of a defendant

21-KA-255 1

resulting from the same non-unanimous jury verdict is rationally irreconcilable.

(See, Bravo-Fernandez v. U.S., 137 S.Ct. 352, 356, 196 L.Ed.2d 242 (2016), citing

United States v. Powell, 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984),

where the Supreme Court found acquittals resulting from rationally irreconcilable

verdicts gain no preclusive effect.).

Furthermore, I agree with the rationale in State v. Rodgers, 21-190 (La. App.

3 Cir. 4/14/21); 318 So.3d 315, 318, which states:

The [Ramos] opinion further addresses unanimous verdicts only
in terms of convictions in stating, “[a] jury must reach a unanimous
verdict in order to convict[,]” and, “[s]o if the Sixth Amendment’s right
to a jury trial requires a unanimous verdict to support a conviction in
federal court, it requires no less in state court.” (emphasis added).
However, the opinion also states “at the time of the Sixth Amendment’s
adoption the right to trial by jury included a right to a unanimous
verdict” without limiting the unanimous verdict to convictions only.
While Ramos does not specifically address a nonunanimous
verdict of not guilty, arguably permitting a lesser requirement than a
verdict of conviction, we can find no other jurisprudence to suggest the
standard for a verdict of not guilty, or an acquittal, to be less than that
required for conviction. We conclude from the Supreme Court’s
analysis in Ramos that the Constitution requires unanimity in all
verdicts, not just guilty verdicts.

(Emphasis in original). (Internal citations omitted). (See also, State v. Robinson,

21-561 (La. App. 5 Cir. 8/23/21)(unpublished writ application), where this Court

adopted the Third Circuit’s rationale in Rodgers and upheld the denial of the

defendant’s “Motion to Quash due to Acquittal.”).

I also find that—considering the strong language expressed in Ramos

concerning the unconstitutionality of non-unanimous jury verdicts in Louisiana—

the date the non-unanimous verdict was rendered is inconsequential when

determining whether that verdict is valid and legal. Because I find that a non-

unanimous jury verdict in a criminal case is not a legal verdict, I am of the opinion

that the right to appeal does not bar prosecution of a defendant for the original charge

upon a retrial resulting from a non-unanimous jury verdict.

21-KA-255 2

For the foregoing reasons, I dissent from the majority opinion. Accordingly,

I would reverse the trial court’s judgment and deny Defendant’s motion to quash his

second degree murder indictment.

21-KA-255 3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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DECEMBER 16, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-KA-255
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLANT) THOMAS J. BUTLER (APPELLANT) DANE S. CIOLINO (APPELLEE)
GRANT L. WILLIS (APPELLEE)

MAILED
CLARE S. ROUBION (APPELLEE) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLANT)
610 WOODVALE DRIVE DISTRICT ATTORNEY
LAFAYETTE, LA 70503 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053