State of Louisiana Versus Ivory D. Franklin

STATE OF LOUISIANA NO. 23-KA-524

VERSUS FIFTH CIRCUIT

IVORY D. FRANKLIN A/K/A DEUCE COURT OF APPEAL

STATE OF LOUISIANA

September 19, 2024

Susan Buchholz
Chief Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

REHEARING GRANTED FOR LIMITED PURPOSE OF CLARIFICATION;
OPINION OF AUGUST 28, 2024 MAINTAINED
TSM
MEJ
SUS

MARCEL, J.

Defendant filed an Application for Rehearing of our August 28, 2024

decision, which affirmed defendant’s convictions and sentences on the charges of

second-degree murder and attempted second-degree murder. In our August 28,

2024 decision, we concluded that the trial court did not abuse its discretion by

denying defense counsel’s Motion to Limit Voir Dire to 21 Prospective Jurors Per

Panel. The jury was selected through voir dire of a panel of thirty-nine prospective

jurors. We found the jury selection method directed by the trial judge did not

infringe upon defendant’s right to a full voir dire examination of prospective

jurors. Defendant argues our conclusion incorrectly relied upon the Louisiana

Supreme Court’s original decision in State v. St. Amant, 413 So.2d 1312 (La. 1981)

and not its decision on rehearing. We grant the application for rehearing for the

limited purpose of providing clarification that the Louisiana Supreme Court’s

decision on rehearing in St. Amant does not have any implication on our August

28, 2024 decision.

In his application for rehearing, defendant contends the Louisiana Supreme

Court’s St. Amant opinion on rehearing held that voir dire of thirty-six1 prospective

jurors at the same time is per se reversable error and that this procedure deprived

him of a meaningful voir dire examination of all members of the jury venire in

violation of La. Const. Art. I., § 17. We disagree.

In St. Amant, the Louisiana Supreme Court granted a rehearing to reconsider

the evidence related to whether or not defendant’s right to fully voir dire the

prospective jurors had been circumvented. In its opinion on rehearing, the

majority specifically noted that defense counsel twice asked the State to “slow

down” its voir dire examination of prospective jurors because he was unable to

1
Defendant points out that the trial court directed voir dire examination of prospective jurors in thirty-nine person
panels in this case.

23-KA-524 1

“keep up” with information provided by prospective jurors. Id. at 1319.

Additionally, defense counsel’s request to further question the twelve jurors

selected by lot from the panel of thirty-six during his voir dire was denied by the

trial judge, who stated: “This is it.” Id.

Ultimately, the Louisiana Supreme Court reversed its original decision and

remanded the case for a new trial. But it was careful to note that its holding was

specific to the case before it: “[u]nder the facts and circumstances of this case, we

conclude that the trial judge abused his discretion by requiring the examination of

thirty-six jurors at the same time.” Id. at 1320 (emphasis added).

After reviewing the voir dire in this case in its entirety, we concluded in our

August 28, 2024 decision that the defendant was not deprived of his right to a full

voir dire examination. On rehearing, and after considering the full implication of St.

Amant, we do so again and reject the defendant’s proposition that St. Amant held

that a jury selection procedure for voir dire examination of prospective jurors in

panels of thirty-six or more is per se reversible error. The material inquiry on appeal

is whether the trial court afforded a full and fair examination of the prospective

jurors.

In the instant case, the trial judge directed voir dire be conducted

simultaneously with thirty-nine prospective jurors, similar to the procedure in St.

Amant. Unlike St. Amant, the record does not reflect the trial judge placed any

restrictions on voir dire. The trial judge advised defense counsel at the onset of

jury selection that he would not limit voir dire. The record reflects the trial judge

took precautions to ensure that counsel for both the State and the defense were

given ample time for questioning. It also shows that defense counsel examined the

prospective jurors directly, individually and collectively, and was uninterrupted

during examination. Defendant was not prejudiced or hindered in any way by the

procedure in this case.

23-KA-524 2

Accordingly, we find defendant was afforded full and fair examination of the

prospective jurors. Our August 28, 2024 decision remains the same. The trial judge

did not abuse his discretion by denying defense counsel’s Motion to Limit Voir Dire

to 21 Prospective Jurors Per Panel.

REHEARING GRANTED FOR
LIMITED PURPOSE OF
CLARIFICATION; OPINION OF
AUGUST 28, 2024 MAINTAINED

23-KA-524 3

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

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

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 09/19/2024 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-KA-524
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald A. Rowan, Jr. (District Judge)
Matthew R. Clauss (Appellee) Thomas J. Butler (Appellee) Bertha M. Hillman (Appellant)

MAILED
Honorable Paul D. Connick, Jr. (Appellee)
District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053