State of Louisiana Versus Felton Thompson

STATE OF LOUISIANA NO. 23-K-337

VERSUS FIFTH CIRCUIT

FELTON THOMPSON COURT OF APPEAL

STATE OF LOUISIANA

April 04, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE FELTON THOMPSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEPHEN D. ENRIGHT,
JR., DIVISION "N", NUMBER 19-0534

Panel composed of Judges Stephen J. Windhorst,
Scott U. Schlegel, and Jason Verdigets, Pro Tempore

WRIT DENIED

Defendant, Felton Thompson, seeks review of the trial court’s denial of his

Motion for Verdicts Other Than Conviction to be by Concurrence of Ten Jurors. For

the following reasons, we deny the writ application.

Procedural History

On January 28, 2019, the Jefferson Parish District Attorney filed a bill of

information, charging defendant with aggravated burglary in violation of La. R.S.

14:60 (count one) and sexual battery in violation of La. R.S. 14:43.1 (count two). Both

offenses are alleged to have occurred on or about October 7, 2016.

On March 3, 2023, defendant filed a Motion for Verdicts Other Than Conviction

to be by Concurrence of Ten Jurors, wherein he asked the trial court to instruct the jury

“that a verdict of conviction must be unanimous but that any other verdict may be

rendered by the concurrence of ten jurors.” The State filed an Opposition to Defense’s

Motion for Verdicts Other Than Conviction to be by Concurrence of Ten Jurors and

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Motion for Special Jury Instructions on March 14, 2023. A hearing was held on March

29, 2023, and the trial court denied defendant’s motion on May 10, 2023, stating:

And the matter is submitted to the Court. And at this time, the Court does
deny the Defense motion, first of all just from the standpoint of
commonsense. This Court is of the belief that if there is a unanimous
verdict that’s required for a conviction, then there needs to be a
unanimous verdict that’s required for an acquittal. And, so, the motion
filed by the Defense to have the Court hold that for an acquittal it would
need a ten out of twelve only but for a conviction twelve out of twelve is
hereby denied at this time.

Defendant now seeks review of the trial court’s denial of his motion.

Discussion

La. Const. art. I § 17(A) states in pertinent part:

A case for an offense committed prior to January l, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried before a
jury of twelve persons, ten of whom must concur to render a verdict. A
case for an offense committed on or after January l, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried before a
jury of twelve persons, all of whom must concur to render a verdict.

Similarly, La. C.Cr.P. art. 782(A) states in pertinent part:

…A case for an offense committed prior to January l, 2019, in which
punishment is necessarily confinement at hard labor shall be tried by a
jury composed of twelve jurors, ten of whom must concur to render a
verdict. A case for an offense committed on or after January l, 2019 in
which the punishment is necessarily confinement at hard labor shall be
tried before a jury of twelve persons, all of whom must concur to render a
verdict. A case in which the punishment may be confinement at hard labor
shall be tried by a jury composed of six jurors, all of whom must concur
to render a verdict.

In this case, the offense was committed prior to 2019, so Defendant requested a

special jury charge stating that a verdict of not guilty requires only ten jurors to concur.

Defendant argues that the United States Supreme Court in Ramos v. Louisiana,

590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), found that unanimity is required

for convictions only by operation of the Sixth and Fourteenth Amendments to the

United States Constitution, and that Ramos did not address the question of

nonunanimous acquittals nor did it declare the provisions governing nonunanimous

acquittals in La. Const. art. I, § 17 and La. C.Cr.P. art. 782 to be unconstitutional.

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In its opposition, the State argues that La. Const. art. I, § 17 and La. C.Cr.P. art.

782 are superseded and rendered unconstitutional per Ramos. And, despite the fact

that Ramos was silent on the issue of whether unanimity is required for acquittals, the

State asserts that unanimity is required to render any verdict, whether it be to convict

or acquit. We agree.

Based on the plain language of La. Const. art. I § 17(A) and La. C.Cr.P. art.

782(A), we find that the use of the word “verdict” encompasses all verdicts. Louisiana

law does not distinguish between verdicts of conviction or acquittal.

We further note that this Court recently “reiterated [its] position that unanimous

verdicts are required to convict or acquit in felony cases.” See State v. Seymore, 23-50

(La. App. 5 Cir. 9/20/23), 371 So.3d 587, 590 (citing State v. Robinson, 21-K-197 (La.

App. 5 Cir. 4/28/21) (unpublished writ disposition), writ denied, 21-1315 (La.

8/27/21), 323 So.3d 381); see also State v. Mills, 23-1332 (La. App. 1 Cir. 2/16/24),

2024 WL 660257; State v. Heard, 22-378 (La. App. 3 Cir. 11/23/22), 353 So.3d 326,

337, writ denied, 22-1829 (La. 4/18/23), 359 So.3d 508 (citing State v. Rodgers, 21-

190 (La. App. 3 Cir. 4/14/21), 318 So.3d 315, 316, writ denied, 21-675 (La. 9/27/21),

324 So.3d 87), where the first and third circuits examined proposed jury instructions

regarding acquittals and found that unanimity is required for all verdicts.

We thus conclude that in cases in which the punishment is necessarily

confinement at hard labor, the jury must unanimously reach a verdict to acquit as well

as to convict. Accordingly, the trial court did not err in denying defendant’s motion

for a special jury instruction. The writ is denied.

Gretna, Louisiana, this 4th day of April, 2024.

JMV
SUS

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STATE OF LOUISIANA NO. 23-K-337

VERSUS FIFTH CIRCUIT

FELTON THOMPSON COURT OF APPEAL

STATE OF LOUISIANA

WINDHORST, J., DISSENTS WITH REASONS
I respectfully disagree with the majority disposition and dissent, and I would

grant the writ to the extent of ordering the trial court to instruct the jury that at least

10 of 12 jurors must concur to reach a verdict of “not guilty.” Neither the U.S. or

Louisiana Supreme Courts have held, or even implied, that a unanimous jury is

required for acquittals. The language of both the Louisiana Constitution Article 1,

Section 17(A) and La. C.Cr.P. art. 782 establish a clear right to verdicts of acquittal

by 10 of 12 jurors for offenses committed prior to January 1, 2019 and necessarily

punishable by hard labor. Neither of these provisions has been struck down,

amended, or deleted.

In his writ application, defendant-relator, Felton Thompson, seeks supervisory

review of the trial court’s denial of his “Motion For Verdicts Other Than Conviction

To Be By Concurrence Of Ten Jurors.” Despite the title of his Motion, defendant-

relator argues primarily for the non-unanimous instruction for a verdict of acquittal.

I address only the acquittal issue.

PROCEDURAL HISTORY

On January 28, 2019, the Jefferson Parish District Attorney filed a bill of

information charging defendant with aggravated burglary in violation of La. R.S.

14:60 (count one) and sexual battery in violation of La. R.S. 14:43.1 (count two),

both alleged to have occurred October 7, 2016. On March 3, 2023, defendant his

“Motion For Verdicts Other Than Conviction To Be By Concurrence Of Ten

Jurors,” which argued for a non-unanimous acquittal.

23-K-337

With his Motion, defendant moved the court for a jury instruction that “a

verdict of conviction be unanimous but that any other verdict may be rendered by

the concurrence of ten jurors.” Defendant argued that while a verdict to convict must

be unanimous by operation of the Sixth and Fourteenth Amendments, only ten jurors

must concur for a not guilty verdict. Defendant relied on the United States Supreme

Court decision in Ramos v. Louisiana, 590 U.S. —, 140 S.Ct. 1390, 206 L.Ed.2d

583 (2020), asserting that the U.S. Supreme Court did not address the question of

non-unanimous acquittals, nor did it declare Louisiana’s constitutional or statutory

provisions (La. Const. art. I, § 17 and La. C.Cr.P. art. 782 providing for non-

unanimous verdicts to be unconstitutional. Because his alleged offenses occurred

before January 1, 2019 and the law in effect at the time required only the concurrence

of ten jurors to render a verdict, relator argued that an acquittal requires only

concurrence of ten jurors in this case. La. Const. art. I, § 17 and La. C.Cr.P. art. 782.

The State opposed defendant’s Motion, asserting that unanimity is required

for all verdicts. The State relied on rulings from this court and the Louisiana Third

Circuit Court of Appeal that previously rejected the same argument by other

defendants. See, State v. Robinson, 21-197 (La. App. 5 Cir. 4/28/21)(unpublished

writ disposition); State v. Rodgers, 21-190 (La. App. 3 Cir. 4/14/21), 318 So.3d 315,

writ denied, 21-675 (La. 9/27/21), 324 So.3d 87; and State v. Heard, 22-378 (La.

App. 3 Cir. 11/23/22), 353 So.3d 326. After a hearing on March 29, 2023, the trial

court denied defendant’s Motion on May 10, 2023, finding a unanimous verdict is

required for both a conviction and an acquittal.

I disagree with the reasoning in the cases cited, and further point out that they

are not precedent and are not binding authority.

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LAW and ANALYSIS

In 2018, the legislature passed and the voters of Louisiana ratified an

amendment to the Louisiana Constitution, Article 1, Section 17(A), effective

December 12, 2018, which provides:

A case for an offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, ten of whom must concur to render a
verdict. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, all of whom must concur to
render a verdict.

In the same legislative session, the legislature amended La. C.Cr.P. art. 782 to

include a provision identical to the amendment above, contingent upon ratification

of the Constitutional amendment. Thus, in all cases tried by jury, for offenses which

occurred before January 1, 2019 and which were necessarily punishable by

confinement at hard labor, all verdicts reached by the jury required only ten of twelve

jurors, including a verdict of “not guilty.”

Unanimous Verdicts for Acquittal Are Not Required by Ramos or Gasser

Sixteen months later, the U.S. Supreme Court decided in Ramos that all trials

by jury which result in conviction of a crime or crimes must be by unanimous verdict

of the jury. The Ramos Court did not, however, address non-unanimous acquittals,

thus leaving in place a Louisiana defendant’s Constitutional and statutory right of

the accused to obtain an acquittal by only ten of twelve jurors when on trial for an

offense committed before January 1, 2019 and necessarily punishable by

confinement at hard labor.

In State v. Gasser, 22-64, (La. 6/29/22), 346 So.3d 249, the Louisiana

Supreme Court made clear that neither they nor the U.S. Supreme Court had made

any decision on whether a verdict of acquittal must be unanimous. The Louisiana

Supreme Court expressly made this point twice in Gasser:

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We likewise find it unnecessary to address the issue of whether a non-
unanimous verdict is required for an acquittal post-Ramos. First,
Ramos only addressed the constitutionality of non-unanimous
verdicts to convict and made no findings with respect to acquittals.
Second, the only issue before this Court is whether the State may retry
defendant on the higher charge of second-degree murder. . . . Thus,
although we express no opinion on this issue at this time, even if
unanimity is now required for an acquittal, this rule cannot invalidate
a lawful acquittal, even one implied by the conviction of a lesser
included offense. [Emphasis added.]

State v. Gasser, 346 So.3d at 265.

Thus, neither Ramos nor Gasser extinguished the right to a 10 of 12 jurors

acquittal which exists in Louisiana for offenses committed prior to January 1, 2019.

With no such judicial determination, unanimous jury decisions for acquittals did not

suddenly become mandated, and the still-existing right to a 10 of 12 verdict for

acquittals was not inexplicably lost.

The Writ Denials in Rodgers & Robinson Are Inapplicable

The State and the majority rely on the denial of writs in Rodgers, and

Robinson. I find these writ dispositions to be both unpersuasive and non-

authoritative. The State also cites Heard, which relies on the previous denial of the

writ by the same court in Rodgers. In Rodgers, the Third Circuit denied the writ,

stating that unanimity was required in all verdicts:

While Ramos does not specifically address a non-unanimous 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 added.]

Rodgers, 318 So.3d at 318.

I disagree. No “other jurisprudence” supporting a non-unanimous verdict for

acquittal is necessary to maintain still-valid provisions of law (See Gasser except

above). That authority is in La. Const. Article 1, Section 17(A) and La. C.Cr.P. art.

782, neither struck down, limited, amended, or deleted.

4

Moreover, Rodgers was the denial of an application for a supervisory writ,

which does not set a precedent.

In Heard, the Third Circuit addressed an argument that it should reconsider its

decision in Rodgers based on the Gasser, in which the Louisiana Supreme Court

ruled that the ten to two jury verdict of guilty of manslaughter served as a valid

acquittal of defendant’s second degree murder charge based on the principles of

double jeopardy. The Third Circuit declined to reconsider its decision in Rodgers,

concluding that its decision in Rodgers was not inconsistent with the Gasser

decision. As a result, the Third Circuit reiterated its determination that unanimity is

required for all verdicts, despite that neither the U. S. Supreme Court in Ramos, nor

the Louisiana Supreme Court in Gasser, had addressed non-unanimous verdicts of

acquittal. Thus, Heard relies on the non-authoritative writ denial in Rodgers, the

substance of which I respectfully find to be unpersuasive.

This court denied a writ application on the identical issue raised in Robinson,

stating:

[W]e conclude that Ramos, 140 S.Ct. 1390, does not support
defendant’s argument that he is entitled to his requested jury
instruction. It makes no distinction between acquittals and convictions
when declaring non-unanimous verdicts unconstitutional. Thus,
finding no error in the trial court’s ruling . . . , denying defendant’s
motion for a special jury instruction at trial to inform the jury of twelve
people that only ten of them must concur in a verdict of not guilty, we
find no reason to reconsider the trial court’s ruling on the State’s
motion. [Emphasis added.]

Robinson, 21-197, p. 4-5.

I also disagree with the reasoning in Robinson. For reasons stated above, and

expressly stated in Gasser, Id., the Ramos Court declared only

non-unanimous convictions to be unconstitutional, not acquittals. The supposed

absence of any distinction between non-unanimous acquittals and convictions, as

suggested by Robinson, has no significance, especially considering that the

discussion and analysis in Ramos related exclusively to a defendant convicted by a

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non-unanimous jury. The lack of a distinction between non-unanimous acquittals

and convictions in Ramos is not significant, but expected. Aside from that, a

conclusion of unconstitutionality of a jury’s acquittal under existing valid law is

practically inconceivable. The only issue in Ramos was, and could only involve,

non-unanimous convictions.

Moreover, Robinson was also an unpublished denial of an application for a

supervisory writ, which does not set a precedent.

In State v. Seymore, 23-50 (La. App. 5 Cir. 9/20/23) 371 So.3d 587, the

defendant was charged with second degree murder. In a post-Ramos trial, the trial

court ruled that the jury’s 10-2 verdict of guilty to the responsive offense of

manslaughter operated as a “not guilty” verdict of second degree murder, and barred

retrial of the defendant on the charge of second degree murder, citing Gasser. This

court reversed, finding that unlike in Gasser and Robinson, the Seymore jury’s 10-2

verdict of guilty to manslaughter was not a valid non-unanimous verdict and was of

no effect, so it did not operate “to acquit” the defendant of the second degree murder

charge. Thus, because the non-unanimous “verdict” in Seymore on the lesser offense

was a conviction, and not an acquittal, it has little relevance to the case before us.

In discussing the requirement of a unanimous verdict for conviction of a

responsive verdict, the Seymore opinion correctly concluded that a non-unanimous

“conviction” of a responsive verdict is illegal and of no effect, and therefore did not

“acquit” the defendant of the original charge, but it was not a decision on non-

unanimous acquittals by a jury. Therefore, use of the words “or acquit” was

incidental, and in this context might well be considered dicta. Regardless, it was

certainly not authoritative on acquittals by a jury.1

1
The subject of non-unanimous acquittals was not raised, assigned as error, or briefed in Seymore.
6

The Flaw of the Majority’s Core Argument

Having citing the cases above, the majority expressly and unequivocally

admits that “despite the fact that Ramos was silent on the issue of whether

unanimity is required for acquittals,” unanimity is nonetheless required to render

any verdict, whether it be to convict or acquit.

The majority states its core reasoning for its conclusion:
Based on the plain language of La. Const. art. I § 17(A) and La. C.Cr.P.
art. 782(A), we find that the use of the word “verdict” encompasses all
verdicts. Louisiana law does not distinguish between verdicts of
conviction or acquittal.

The indisputable fallacy of this logic is that it ignores that both La. Const. art. I §

17(A) and La. C.Cr.P. art. 782 expressly state that all such verdicts for pre-2019

offenses, including acquittals, shall be by concurrence of 10 jurors. When Ramos

was later decided, its unanimity requirement applied only to convictions, as the

majority now clearly concedes. The Louisiana Supreme Court said the same in

Gasser. This admitted “silence” as to acquittals left in place and enforceable the

accused’s right of a 10 of 12 verdict of acquittal.

Lastly, I point out the obvious: that criminal laws and doctrine are construed

stricti juris (of strict right). State v. Vanicor, 239 La. 357, 365, 118 So.2d 438, 441

(1960); State v. Penniman, 224 La. 95, 98, 68 So.2d 770, 771 (1953). It is therefore

well-settled in Louisiana law that uncertainties in the application of criminal laws

are resolved in favor of the accused.

CONCLUSION
For the foregoing reasons, I would find the trial court’s ruling denying

relator’s “Motion For Verdicts Other Than Conviction To Be By Concurrence Of

Ten Jurors” to be in error, to the extent that it denies a 10 of 12 instruction for

acquittal. Accordingly, I would grant this writ, and order the trial court to instruct

the jury that at least 10 of 12 jurors must concur to reach a verdict of “not guilty.”

SJW

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

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

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 04/04/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

23-K-337
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Stephen D. Enright, Jr. (DISTRICT JUDGE)
Richard J. Bourke (Relator) Thomas J. Butler (Respondent)

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