State of Louisiana Versus Jerman Neveaux

STATE OF LOUISIANA NO. 23-K-461

VERSUS FIFTH CIRCUIT

JERMAN NEVEAUX COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-4029, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

October 26, 2023

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst

WRIT DENIED
SMC
FHW
SJW

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

COUNSEL FOR DEFENDANT/RELATOR,
JERMAN NEVEAUX
Richard J. Bourke
Elliott T. Brown

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Grant L. Willis

CHEHARDY, C.J.

Defendant, Jerman Neveaux, seeks supervisory review of the trial court’s

ruling that denied his Motion to Declare La. C.Cr.P. 905.7 Unconstitutional as

Violating the Right to a Jury Trial. For the reasons that follow, the writ is denied.

Procedural Background

On October 13, 2016, defendant was indicted in case number 16-4029 for

the first degree murder of Jefferson Parish Sheriff’s Office (JPSO) Detective David

Michel in violation of La. R.S. 14:30. On that same date, defendant was indicted in

case number 16-6301 for aggravated assault with a firearm in violation of La. R.S.

14:37.4 (count one), resisting a police officer (JPSO Detective George Kister) with

the use of violence or threats of violence in violation of La. R.S. 14:108.2 (count

two), resisting a police officer (JPSO Sergeant Christy Clement) with the use of

violence or threats of violence in violation of La. R.S. 14:108.2 (count three), and

illegal possession of a stolen firearm in violation of La. R.S. 14:69.1 (count four).

The State is seeking the death penalty.

On July 10, 2023, defendant filed a Motion to Declare La. C.Cr.P. 905.7

Unconstitutional as Violating the Right to a Jury Trial. On July 24, 2023, the State

filed State’s Omnibus Response to Defendant’s Motions Relative to Venire and

Indictment, to which defendant replied on August 7, 2023. On August 23, 2023,

the trial court denied defendant’s motion after a hearing. Defendant timely filed the

instant writ application on September 20, 2023.

Discussion

In conjunction with defendant’s indictment for the first degree murder of

Detective Michel in violation of La. R.S. 14:30, the State filed a Notice of

Aggravating Circumstances, indicating its intent to present evidence at trial

showing that defendant was engaged in the attempted perpetration of an armed

robbery at the time of the offense, citing La. C.Cr.P. art. 905.4(1), and during the

23-K-461 1

offense, defendant killed Detective Michel, a peace officer employed with the

JPSO while Detective Michel was engaged in his lawful duty, citing La. C.Cr.P.

art. 905.4(2).

La. C.Cr.P. art. 905.4 provides in pertinent part:

Art. 905.4. Aggravating circumstances

A. The following shall be considered aggravating
circumstances:

(1) The offender was engaged in the … attempted
perpetration of … armed robbery[.]

(2) The victim was a fireman or peace officer engaged in
his lawful duties[.]

On January 9, 2023, the State filed a Response to Supplement to Prior

Motions for Bill of Particulars, confirming its intent to establish at trial that: 1)

defendant violated La. R.S. 14:30(A)(2) in that he killed Detective Michel, a peace

officer engaged in the performance of his lawful duties; 2) Witness 19 is the victim

of the attempted armed robbery referenced in the State’s Notice of Aggravating

Circumstances; on the date of Detective Michel’s murder, defendant armed himself

with a firearm and followed Witness 19; and 3) the State would introduce all

evidence that it had produced to defendant in discovery in support the above

allegations.

On July 10, 2023, defendant filed a Motion to Declare La. C.Cr.P. 905.7

Unconstitutional as Violating the Right to a Jury Trial. Defendant explained that at

capital sentencing, a defendant is guaranteed a jury trial on every aggravating

circumstance alleged against him. He further explained that Louisiana’s statute

provides for the jury to convict of an aggravating circumstance by making a

unanimous finding that the aggravating circumstance is proven beyond a

reasonable doubt. Defendant contends, however, that Louisiana’s statutory scheme

provides no mechanism for the jury to acquit him of the aggravating

23-K-461 2

circumstances, even where the jury is unanimously convinced that the

circumstances has not been proven beyond a reasonable doubt. Additionally,

defendant argued that Article 905.7 violates the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution because it insulates the jury

findings at capital sentencing from Double Jeopardy protection.

In its response, the State points out that other challenges to Article 905.7

have been rejected by the Louisiana Supreme Court, citing State v. Manning, 03-

1982 (La. 10/19/04), 885 So.2d 1044, cert. denied, 544 U.S. 967, 125 S.Ct. 1745,

161 L.Ed.2d 612 (2005).

The State further contends that although it is unclear whether the precise

constitutional challenge defendant raised has previously been litigated, it is

nevertheless without merit. According to the State, the law requires the jury to find

at least one aggravating circumstance beyond a reasonable doubt to sentence

defendant to death, and the law provides for appellate review as to whether that

aggravating circumstance is supported by constitutionally sufficient evidence. The

State maintains that the jury is prohibited from returning a death sentence if it does

not find at least one aggravating circumstance beyond a reasonable doubt.

Furthermore, the State argues that even if the jury finds at least one aggravating

circumstance beyond a reasonable doubt, the jury is still free to decline to return a

death sentence.

As to any concern about double jeopardy, the State asserts that if defendant

is sentenced to death, the Louisiana Supreme Court will review whether the

evidence supports the jury determination of aggravating circumstances sufficient to

justify a death sentence. Further, “the state may not subject a defendant to a second

prospect of death on retrial of a capital case in which he has received a sentence of

life imprisonment[.]” State v. Washington, 380 So.2d 64, 67 (La. 1980). As such,

23-K-461 3

under Louisiana’s scheme, the State argues that there is no viable double jeopardy

issue.

At the August 23, 2023 hearing on the motion, the trial court denied the

motion, stating:

That motion’s denied. I just -- and it’s -- I don’t know if
I’m missing something; but, everything under Chapter 3 is
everything in capital cases. So we’re not talking about the
guilt phase of the trial. We’re talking about the sentencing
portion of a trial.

And if Mr. Neveaux is found guilty then the jury has to
decide, if in fact, there was an aggravated circumstance.
And, if there was one, that the jury could consider the
death penalty. If not, then the jury cannot consider the
death penalty. So I don’t know if I’m missing something
in the argument, if I’m not understanding; but, again,
that’s in the sentencing phase.

Again, that’s a legislative amendment if it needs to be. I
only, again, follow the law, apply the law to the facts; and,
therefore, Number 80, we’re on, the unconstitutionality of
905.7 is denied.

Law and Analysis

La. C.Cr.P. art. 905.3, entitled “Sentence of death; jury findings,” provides:

A sentence of death shall not be imposed unless the jury
finds beyond a reasonable doubt that at least one statutory
aggravating circumstance exists and, after consideration
of any mitigating circumstances, determines that the
sentence of death should be imposed. The court shall
instruct the jury concerning all of the statutory mitigating
circumstances. The court shall also instruct the jury
concerning the statutory aggravating circumstances but
may decline to instruct the jury on any aggravating
circumstance not supported by evidence. The court may
provide the jury with a list of the mitigating and
aggravating circumstances upon which the jury was
instructed.

La. C.Cr.P. art. 905.7, entitled “Form of determination,” provides:

The form of jury determination shall be as follows:

“Having found the below listed statutory aggravating
circumstance or circumstances and, after consideration of
the mitigating circumstances offered, the jury

23-K-461 4

unanimously determines that the defendant should be
sentenced to death.

Aggravating circumstance or circumstances found:

s/_________________________
Foreman”

or

“The jury unanimously determines that the defendant
should be sentenced to life imprisonment without benefit
of probation, parole or suspension of sentence.

s/_________________________
Foreman”

La. C.Cr.P. art. 905. 8, entitled “Imposition of sentence,” provides:

The court shall sentence the defendant in accordance with
the determination of the jury. If the jury is unable to
unanimously agree on a determination, the court shall
impose a sentence of life imprisonment without benefit of
probation, parole or suspension of sentence.

La. C.Cr.P. art. 905.9, entitled “Review on appeal,” provides:

The Supreme Court of Louisiana shall review every
sentence of death to determine if it is excessive. The court
by rules shall establish such procedures as are necessary
to satisfy constitutional criteria for review.

Statutes generally are presumed constitutional, and any doubt is to be

resolved in the statute’s favor. State v. Fleury, 01-871 (La. 10/16/01), 799 So.2d

468, 472. “Constitutional scrutiny favors the statute. Statutes are presumed to be

valid, and the constitutionality of a statute should be upheld whenever possible.”

State v. Hill, 20-323 (La. 10/1/20), 341 So.3d 539, 545 n.3, cert. denied, 142 S.Ct.

311, 211 L.Ed.2d 147 (2021).1

1
This law applies to both statutes and codal articles. See State v. Cousan, 94-2503 (La.
11/25/96), 684 So.2d 382, 392 (“At the time of defendant’s trial, the Code of Criminal Procedure
article quoted above was presumed constitutional.”). See also State v. Landry, 463 So.2d 761,
763 (La. App. 5th Cir.), writ denied, 464 So.2d 1373 (La. 1985) (“However, we do not find it
necessary to directly pass upon error number 4, namely the constitutionality of LSA–
Constitution Article I, Section 17 and LSA–C.Cr.P. Article 493.1 as applied to driving while
intoxicated prosecution, since such articles are presumed constitutional and have indeed been
held constitutional and defendant failed, in the trial court, to either raise the issue of their
constitutionality or traverse the presumption they enjoy.”).

23-K-461 5

In State v. Leger, 05-11 (La. 7/10/06), 936 So.2d 108, 175, cert. denied, 549

U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), the Louisiana Supreme Court

discussed capital sentence review as follows:

Under La. C.Cr.P. art. 905.9 and La. Sup.Ct. Rule 28, this
court reviews every sentence of death imposed by the
courts of this state to determine if it is constitutionally
excessive. In making this determination, the court
considers whether the jury imposed the sentence under the
influence of passion, prejudice or other arbitrary factors;
whether the evidence supports the jury’s findings with
respect to a statutory aggravating circumstance; and
whether the sentence is disproportionate, considering both
the offense and the offender.

Additionally, as the State has argued here, “the state may not subject a

defendant to a second prospect of death on retrial of a capital case in which he has

received a sentence of life imprisonment.” Washington, 380 So.2d at 67.

Furthermore, 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; 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

So.2d 1068, 1069.

The Louisiana Supreme Court has upheld the constitutionality of La. C.Cr.P.

art. 905.7, and the form of jury determination when sentencing in capital cases, in

other contexts. For example, in Manning, 885 So.2d at 1106, the defendant argued

23-K-461 6

that the penalty phase form was constitutionally insufficient because the language

the form used impermissibly shifted the burden of proving the propriety of a life

sentence to the defense. Specifically, the defendant claimed that although the

verdict form conformed to the statutory requirements of La. C.Cr.P. art. 905.7, it

offended constitutional principles by limiting the jury’s consideration of mitigation

to that offered on the form. The Louisiana Supreme Court pointed out that the jury

was fully informed of both the aggravating and mitigating circumstances that it had

to consider in its deliberation, and found nothing to suggest that the jury was

misled by the statutory language used in the verdict form. Accordingly, the Court

determined that defendant failed to show that the form introduced an arbitrary

factor into the jury’s deliberations. Id.

In State v. Myles, 389 So.2d 12 (La. 1979), the defendant claimed that La.

C.Cr.P. art. 905.7 was unconstitutionally vague and ambiguous because it led the

jury to believe that it had to unanimously agree on the recommended sentence. The

defense argued that, in effect, the statute failed to inform the jury that the

defendant would be sentenced to life imprisonment if the jury failed to make a

unanimous sentencing recommendation. The Court noted that the defendant’s

argument was based on apparent confusion concerning the jury’s role in the

sentencing phase of the trial. “Under the scheme provided in the Code of Criminal

Procedure, the jury must unanimously agree on any sentencing recommendation.

La. C.Cr.P. art. 905.7. However, the jurors are not required to make a

recommendation, and if they failed to reach an agreement, a sentence of life

imprisonment will be imposed. La. C.Cr.P. art. 905.8.” Id. at 17. The Supreme

Court noted that the trial judge explained this to the jurors in a jury charge, where

the jurors were informed of only two possible recommendations and instructed that

any response other than a unanimous recommendation of death, coupled with a

supported finding of an aggravating circumstance, would result in a sentence of life

23-K-461 7

imprisonment. The Court concluded from this charge that a reasonable juror could

infer that failure to reach a unanimous sentencing recommendation would result in

life imprisonment, and therefore, that the defendant’s constitutional challenge to

La. C.Cr.P. art. 905.7 lacked merit. Id.

Here, defendant argues that the Form of Determination mandated by Article

905.7 is unconstitutional because it violates his right to a jury trial and because it

violates the Double Jeopardy Clause. We find no merit in defendant’s arguments.

First, Articles 905.7 and 905.3 require a unanimous jury to find at least one

aggravating circumstance beyond a reasonable doubt in order to sentence

defendant to death. In addition, pursuant to Article 905.9, the Louisiana Supreme

Court reviews every sentence of death to determine if it is excessive. See Leger,

936 So.2d 108, 175. Second, Article 905.7 has previously withstood other

constitutional challenges. See Manning, supra, and Myles, supra. Third, we find no

double-jeopardy violation because the State may not seek the death penalty on

retrial of a capital case where the defendant received a sentence of life

imprisonment at the first trial. See Washington, 380 So.2d 64, 67. Lastly, it is well

settled that statutes generally are presumed constitutional, and any doubt is to be

resolved in the statute’s favor. See Fleury, 799 So.2d at 472. Defendant’s

arguments fail to overcome that presumption.

Accordingly, finding no error in the trial court’s decision to deny

defendant’s motion to declare La. C.Cr.P. art. 905.7 (form of jury determination)

unconstitutional, the writ is denied.

WRIT DENIED

23-K-461 8

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
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-K-461
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
DARREN A. ALLEMAND (RESPONDENT) THOMAS J. BUTLER (RESPONDENT) ELLIOTT T. BROWN (RELATOR)
RICHARD J. BOURKE (RELATOR) GRANT L. WILLIS (RESPONDENT)

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(RESPONDENT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
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