State of Louisiana Versus Frederick Seymore, Jr.

STATE OF LOUISIANA NO. 23-KA-50

VERSUS FIFTH CIRCUIT

FREDERICK SEYMORE, JR. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 16,340, DIVISION "A"
HONORABLE VERCELL FIFFIE, JUDGE PRESIDING

September 20, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

REVERSED AND REMANDED
MEJ
SMC
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA
Honorable Bridget A. Dinvaut
Anthony J. Ibert

COUNSEL FOR DEFENDANT/APPELLEE,
FREDERICK SEYMORE
Prentice L. White

JOHNSON, J.

Appellant, the State of Louisiana, appeals the October 14, 2022 order of the

40th Judicial District Court that declared Defendant, Frederick Seymore, Jr., was

acquitted of the charge of second degree murder, and further ordered that the State

was barred from retrying the Defendant on the charges delineated in the original

indictment filed on October 10, 2016. For the following reasons, we reverse the

district court’s judgment and remand the matter.

FACTS AND PROCEDURAL HISTORY

Defendant’s previous conviction of second degree murder by a non-

unanimous jury and subsequent sentence of life imprisonment without benefits

were vacated by this Court pursuant to Ramos v. Louisiana, 590 U.S. ––––, 140

S.Ct. 1390, 206 L.Ed.2d 583 (2020). See State v. Seymore, 20-129 (La. App. 5 Cir.

11/4/20), 305 So.3d 1038, 1047. On remand, a second trial commenced on January

4, 2022 to reconsider whether Defendant was guilty of second degree murder.

Ultimately, the jury cast “zero guilties” votes in response to the question of

whether Defendant was guilty of second degree murder. The jury also found, by a

verdict of 10-2, that Defendant was guilty of manslaughter and cast zero guilty

votes in response to the question of whether Defendant had committed negligent

homicide.1

After a sidebar, the district court declared a mistrial due to the illegal verdict.

Defendant’s counsel argued that “no yay votes under second degree murder”

equated to “twelve not guilties”. Thus, the defense believed the jury returned “a

legal verdict”, although the “yays and nays for manslaughter [was not] a legal vote

because it’s ten to two”. The State countered that the manslaughter verdict was not

legal, and advised that it would like an opportunity to research and submit a brief

on the matter. The district court set a status hearing for March 14, 2022, granted

1
Both the State and Defendant waived polling of the jury.

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leave to the parties to submit briefs, but advised both parties on the record that it

might issue a judgment before then.2

According to the abstract of minutes in the record, five post-trial status

hearings were held between March and October 2022. The district court finally

issued an order with written reasons for judgment on October 14, 2022. The court

ordered “that the trial resulted in an 12 - 0 acquittal of the charge of second degree

murder[, . . .] that the record be corrected to reflect this[, . . .] and that the State is

barred from retrying the case in all respects as related to the facts in the

indictment[.]” The State then filed a Motion to Reconsider the Court’s Order of

October 14, 2022, which was denied by the district court on November 14, 2022.

The next day, the State filed its writ application with this Court. On

December 2, 2022, this Court denied the State’s writ application finding that the

judgment was final and appealable. State v. Seymore, 22-529 (La. App. 5 Cir.

12/02/22) (unpublished writ disposition). This Court remanded the matter with

instructions for the district court to consider the State’s notice of intent to seek

supervisory writs as a motion for appeal and to proceed accordingly. Id. The

instant appeal followed.

ASSIGNMENTS OF ERROR

The State appeals the district court’s October 14, 2022 order that found

Defendant was acquitted of the charge of second degree murder, ordered the record

to be corrected to enter an acquittal of second degree murder, and barred the State

from retrying the matter in all respects as related to the factual circumstances

delineated in the original indictment filed on October 10, 2016. The State argues

that the jury did not reach a valid verdict on all the charges at the end of the

deliberations that took place on January 7, 2022.

2
Defendant remained released on bail with conditions pending judgment.

23-KA-50 2

The State also contends that the district court erred in barring the retrial of

Defendant, and in quashing the original indictment on the Court’s own motion.

The State asserts that neither party requested that the Court’s original ruling

ordering the mistral be reversed, and an order of acquittal be entered. The State

contends that Defendant has not filed any other motions, including a motion to

quash the indictment. As such, the State maintains that the Court acted without

authority in reversing the order of mistrial, ordering the entry of an acquittal on the

charge of second degree murder, and, in quashing the bill of indictment on its own

motion.

Defendant maintains that the district court correctly entered a valid acquittal

on the charge of second degree murder that would bar the State from subsequently

retrying Defendant on the second degree murder charge. Pursuant to State v.

Gasser, 21-255 (La. App. 5 Cir. 12/16/21), 335 So.3d 342, writ granted, 22-64

(La. 3/2/22), 333 So.3d 823, aff'd, 22-64 (La. 6/29/22), 346 So.3d 249, Defendant

asserts that the jury’s unanimous not guilty verdict of the greater offense would act

as an implied acquittal of that offense for any future prosecutions[.]

LAW AND DISCUSSION

Acquittal of second degree murder charge

In a jury case, a mistrial may be ordered, and the jury dismissed, when the

jury is unable to agree upon a verdict. La. C.Cr.P. art. 775(2). “When a mistrial is

granted because the jury is deadlocked, a second trial is a ‘manifest necessity’.”

State v. Brossette, 93-1036 (La. App. 3d Cir. 3/2/94), 634 So.2d 1309, 1314-15,

writ denied, 94-802 (La. 6/24/94) 640 So.2d 1344, citing Oregon v. Kennedy, 456

U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). “In such a case of ‘manifest

necessity’, the double jeopardy clause does not attach to bar reprosecution.” Id.

In Gasser, supra, the defendant was charged with second degree murder in

connection with the shooting death of Joseph McKnight related to a 2016 road rage

23-KA-50 3

incident. 335 So.3d at 253. On January 26, 2018, the jury returned a non-

unanimous, responsive verdict of ten to two – a valid verdict at the time – finding

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

14:31. The Gasser court concluded “Defendant's conviction of the lesser included

offense of manslaughter was an implied acquittal of the second degree murder

charge and the State may not retry defendant for second degree murder.” Gasser,

346 So.3d at 262. 323, 329; Price v. Georgia, 90 S.Ct. 1757, 1761; 26 L.Ed.2d 300

(1970) (emphasis added, footnote omitted).

Although the Louisiana supreme court overruled State v. Goodley, 423 So.2d

648 (La. 1982), in Gasser, it took note of the following language from Goodley:

“[w]here no valid judgment has been obtained, the defendant's double jeopardy

interests simply cannot be considered to extend so far as to compel society to

relinquish its interest in punishing one whose guilt is clear by means of a fair and

procedurally accurate trial.” Id. at 651 (Emphasis added). “[I]t follows that the

Fifth Amendment likewise should not bar retrial of a defendant where a non-

waivable defect, such as an illegal verdict fails to result in either a conviction or

acquittal at defendant's first trial.” Id. (Emphasis added).

The only responsive verdicts which may be rendered when the indictment

charge is second degree murder are: Guilty; Guilty of manslaughter; Guilty of

negligent homicide; or Not Guilty. La. C.Cr.P. art. 814. In the instant case, the

district court entered and recorded the jury’s verdict, then discharged the jury

before declaring a mistrial. In reviewing the summary of the responsive verdicts

for the charges listed at the bottom of the verdict sheet, it appears that only two

jurors found Defendant “Not Guilty” of second degree murder – although the

verdict, and both the minute entry and transcript from the last day of trial, reveal

that no “Guilty” votes were cast. Additionally, because the 10-2 verdict on the

23-KA-50 4

manslaughter charge is not a legal verdict, it cannot operate as an implied acquittal

of the second degree murder charge as was the case in Gasser, supra.

The State cited to State v. Robinson, 21-561 (La. App. 5 Cir. 8/23/21)

(unpublished writ disposition), writ denied, 21-1315 (La. 8/27/21), 323 So.3d 381,

in support of its argument that it may proceed to trial with second degree murder

charges against Defendant until a “valid verdict” – a unanimous decision on one of

the four permissible verdicts allowed pursuant to La. C.Cr.P. art. 814(3) – is

returned. In Robinson, we reiterated this Circuit’s position that unanimous verdicts

are required to convict or acquit in felony cases. The jury in Robinson found the

defendant not guilty of felony charges by a verdict of ten to two. Because a non-

unanimous verdict cannot acquit a defendant of the charge(s) faced, in that case,

jeopardy did not attach, and the defendant could be retried on those same felony

charges after a mistrial had been declared. Likewise, in the case before us, we find

that the non-unanimous, illegal, non-responsive verdict returned by the jury cannot

acquit Defendant of the second degree murder charge. Double jeopardy did not

attach, and the State may retry Defendant on the second degree murder charge.

Last, we find that the district court’s original order of a mistrial pursuant to La.

C.Cr.P. art. 775(2) was correct.

Sua sponte motion to quash indictment

The district court’s October 14, 2022 order effectively quashed the

indictment in this matter. A motion to quash is a procedural vehicle for

challenging an indictment or a bill information. La. C.Cr.P. arts. 531-533. La.

C.Cr.P. art. 536 states: “A motion to quash shall be in writing, signed by the

defendant or his attorney, and filed in open court or in the office of the clerk of

court. It shall specify distinctly the grounds on which it is based. The court shall

hear no objection based on grounds not stated in the motion.” Previously, this

Court has strictly construed the provisions of La. C.Cr.P. art. 536 and held that

23-KA-50 5

failure to file a written motion to quash, or specify grounds upon which it is based,

is reversible error. See State v. Branch, 00-1668 (La. App. 5 Cir. 3/28/01), 784

So.2d 43; State v. Bentel, 00-57 (La. App. 5 Cir. 9/26/00), 769 So.2d 1247. A

motion to quash a bill of information may be based on the grounds that trial for the

offense charged would constitute double jeopardy. See La. C.Cr.P. art. 532(6).

On appeal, the State contends, and the defense concedes, that Defendant has

not filed a motion to quash the indictment. In fact, Defendant’s brief on appeal

concedes that it is unprecedented for the trial court, on its own motion, to “make an

order that would essentially quash the indictment that was filed.”

In State v. Wiggins, 20-23 (La. App. 5 Cir. 9/22/20), 2020 WL 5640479

(unpublished opinion), the State contended that the trial court erred in granting the

defendant’s motion to enforce a plea agreement, thereafter quashing the bill of

information. This Court vacated the trial court’s ruling that effectively quashed the

prosecution and remanded the matter for further proceedings. First, this Court

noted that the defendant did not file a motion to quash seeking a dismissal of the

prosecution; rather, the defendant only requested throughout the proceedings that

the court enforce an alleged agreement that he would not serve jail time on his

current charges. This Court noted that a request for the enforcement of an

agreement that provided for no jail time does not necessarily require a dismissal of

the charges, and held that the trial court clearly exceeded its authority in quashing

the prosecution. Id. at *3.

See also State v. Everson, 15-1159 (La. App. 4 Cir. 4/20/16), 194 So.3d

1146, where the trial court sua sponte quashed bills of information, and the State

appealed the trial court’s rulings, arguing that only a defendant or his trial counsel

may file a motion to quash. The appellate court held that La. C.Cr.P. art. 536 does

not authorize a trial court to quash a bill of information on its own motion, and the

trial court’s action was a unilateral act not permitted by La. C.Cr.P. art. 536.

23-KA-50 6

Likewise, in the case at bar, we find that the district court was without

authority to issue an order sua sponte, stating that the State is “barred from retrying

this case in all respects as related to the factual circumstances delineated on the

indictment filed on October 10, 2016,” in the absence of a written motion to quash

as required by La. C.Cr.P. art. 536.3

DECREE

Considering the foregoing, the district court’s October 14, 2022 order that

the January 4, 2022 trial resulted in 12-0 acquittal in favor of Defendant of the

charge of second degree murder, that the record be corrected to enter the acquittal

of the second degree murder charge, and that the State is “barred from retrying

Defendant on the charge of second degree murder as related to the factual

circumstances delineated on the indictment filed on October 10, 2016” is reversed.

The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

3
See La. C.Cr.P. art. 61, which provides, “Subject to the supervision of the attorney general, as provided
in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or
pending in his district, and determines whom, when, and how he shall prosecute.” See also La. Const.
Art. V § 26(B), which states, “Except as otherwise provided by this constitution, a district attorney, or his
designated assistant, shall have charge of every criminal prosecution by the state in his district, be the
representative of the state before the grand jury in his district, and be the legal advisor to the grand jury.
He shall perform other duties provided by law.”

23-KA-50 7

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
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

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
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
SEPTEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-50
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE VERCELL FIFFIE (DISTRICT JUDGE)
VERCELL FIFFIE (APPELLANT) ANTHONY J. IBERT (APPELLANT) HONORABLE BRIDGET A. DINVAUT
(APPELLANT)

MAILED
PRENTICE L. WHITE (APPELLEE)
ATTORNEY AT LAW
LOUISIANA APPELLATE PROJECT
16731 CICERO AVENUE
BATON ROUGE, LA 70816