State of Louisiana Versus Kyriene Vallery

STATE OF LOUISIANA NO. 22-K-71

VERSUS FIFTH CIRCUIT

KYRIENE VALLERY COURT OF APPEAL

STATE OF LOUISIANA

October 25, 2022

Linda Wiseman
First Deputy Clerk

IN RE KYRIENE VALLERY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE KATHERINE TESS
STROMBERG, DIVISION "C", NUMBER 69,50

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and John J. Molaison, Jr.

STAY LIFTED; WRIT GRANTED; REMANDED

The relator, Kyriene Vallery, seeks review of the trial court’s denial of his

motion to quash. On March 10, 2022, this Court stayed the underlying

proceedings pending the Louisiana Supreme Court’s resolution of an identical

issue in State v. Gasser, 22-00064 (3/2/22) --- So. 3d, ---, 2022 WL 610722.

The relator was indicted on January 27, 2014, for second-degree murder by a

St. James Parish Grand Jury. On November 1, 2018, a non-unanimous jury found

the relator guilty of the responsive verdict of manslaughter. He was sentenced to

40 years at hard labor with the Department of Corrections. The United States

Supreme Court decision in Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390, 206

L.Ed.2d 583 (2020) held that a unanimous jury verdict is required to convict a

defendant of a serious offense. On appeal, this Court vacated the relator’s

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

Vallery, 20-149 (La. App. 5 Cir. 12/16/20), 308 So.3d 785.

22-K-71

The State thereafter sought to try the relator using the original grand jury

indictment for second-degree murder. The relator filed a motion to quash the

indictment on the basis of double jeopardy. He argued that because a jury

convicted him of a responsive verdict of manslaughter, the State is precluded from

prosecuting him for the greater offense of second-degree murder because being

found guilty of a lesser degree of the offense charged, is an acquittal of the more

serious second-degree murder charge under La. C.Cr.P. art. 598. In the alternative,

the relator argued that allowing the State to retry him for a greater offense would

chill his appellate rights under article I, section 19 of the Louisiana Constitution

because he should not be required to elect between suffering an illegal conviction

to stand unchallenged at the cost of forfeiting a valid defense to a greater offense.

After a hearing on November 29, 2021, the trial court denied his motion on

December 17, 2021, finding the relator’s conviction, reversed in accordance with

Ramos, was a “procedural dismissal” unrelated to the relator’s factual guilt or

innocence, rather than an acquittal.

This Court had reached a contrary decision on December 16, 2021 in State v.

Gasser, 21-255 (La. App. 5 Cir. 12/16/21), --- So.3d ---, 2021WL59999978. In

that case, we found no error in a trial court’s granting of a motion to quash on the

basis of double jeopardy upon finding that the responsive verdict of manslaughter

was an acquittal of the second-degree murder charge. Relying on La. C.Cr.P. art.

598, we found the non-unanimous manslaughter verdict, legal at the time of the

conviction, served as an acquittal of the greater offense of second-degree murder

and the defendant could not be retried for that offense. In State v. Gasser, 22-

00064 (La. 6/1/22), the Supreme Court affirmed this Court’s opinion, and found

specifically:

After our review of the procedural history of this case and
relevant case law, we agree with the lower courts that double jeopardy
bars the reinstatement and retrial of a defendant on a higher charge

2

when he has been lawfully convicted of a lesser included offense,
even though the conviction is later vacated. We further agree with the
lower courts that, in this case, defendant's conviction of a lesser
included offense operated as an implied acquittal of the higher charge.
We thus affirm the trial court's ruling, granting defendant's motion to
quash.

Therefore, in applying the Supreme Court’s recent pronouncement in

Gasser, supra, to the instant facts, we find that double jeopardy precludes the State

from retrying the relator on the second-degree murder charge due to the implied

acquittal of the responsive verdict. Accordingly, we lift our previous stay, grant

the relator’s writ, reverse the trial court’s denial of the motion to quash, and

remand the matter for further proceedings.

Gretna, Louisiana, this 25th day of October, 2022.

JJM
JGG
SJW

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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COUNSEL, AS LISTED BELOW:

22-K-71
E-NOTIFIED
23rd Judicial District Court (Clerk)
Hon. Katherine Tess Stromberg (DISTRICT JUDGE)
Mark D. Plaisance (Relator)

MAILED
Honorable Ricky L. Babin (Respondent) Eric J. Santana (Relator) Marcus J. Plaisance (Relator)
District Attorney Attorney at Law Attorney at Law
23rd Judicial District Court 3500 North Hullen Street Post Office Box 1123
Post Office Box 1899 Suite 17K Prairieville, LA 70769
Gonzales, LA 70707 Metairie, LA 70002

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Honorable Ricky L. Babin
District Attorney
23rd Judicial District Court
Post Office Box 1899
Gonataies, LA 70707
...1..?.:~7:1 10-25-22

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