State of Louisiana v. Roosevelt T. Ardison

Judgment rendered June 26, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 992,
La. C. Cr. P.

No. 52,739-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

ROOSEVELT T. ARDISON Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 349995

Honorable Erin Leigh Waddell Garrett, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Chad Ikerd

JAMES EDWARD STEWART, SR. Counsel for Appellee
District Attorney

ROSS STEWART OWEN
ERICA N. JEFFERSON
CHARLES KENNETH PARR
Assistant District Attorneys

*****

Before WILLIAMS, McCALLUM, and THOMPSON, JJ.

WILLIAMS, C.J., dissents with written reasons.

McCALLUM, J.

Roosevelt Ardison appeals his convictions for possession with the

intent to distribute cocaine and for possession of a firearm or carrying a

concealed weapon by a convicted felon, and the concurrent 20-year

sentences that he received for his convictions.

We affirm his convictions, vacate his sentences, and remand for

resentencing.

FACTS

Donald Belanger Jr. is an agent with the Shreveport Police

Department’s street level interdiction unit. John Witham is a narcotics agent

with the Caddo Parish Sheriff’s Office (“CPSO”). On June 8, 2017,

Belanger and Witham were on patrol in the 1600 block of Oakdale Street in

Shreveport when they came upon a “trap house” located at 1653 Oakdale. A

trap house is a house where drug dealers, who do not live at that particular

home, gather to ply their trade.

As they pulled up to the trap house, the agents saw one male,

defendant Roosevelt Ardison, standing in the driveway with a small female

child with him. Two older males were sitting in chairs in the driveway.

Ardison, who began walking toward the street when the agents approached

the men, complied when Belanger asked him to step back into the driveway.

Meanwhile, Witham dealt with the other two men.

Belanger, noting that Ardison was looking around and fearing that he

may be armed because of the number of drug and weapon arrests that had

been made at that location, decided to pat down Ardison for weapons. When

Belanger touched Ardison’s back and told him what he was doing, Ardison

tried to pull away forcefully and violently. Belanger pinned Ardison’s arms
1

against his body. During the struggle, a 9mm handgun in Ardison’s

waistband was exposed. Agent Witham successfully retrieved the weapon,

which contained eight rounds in its magazine.

As Belanger took Ardison to the ground, Ardison threw a black object

which turned out to be a sock containing a gram of cocaine packaged in 11

individual bags. While being interviewed by Belanger, Ardison admitted

that the handgun was his, but claimed that he was only holding the cocaine

for someone else.

Ardison was charged by bill of information with: (1) violating La.

R.S. 14:95.1 by possessing a firearm or carrying a concealed weapon as a

person convicted of certain felonies; and (2) violating La. R.S. 40:967(A)(1)

by possessing a Schedule II CDS with the intent to distribute.

Ardison filed a motion to suppress the gun and drugs on the ground

that the officers lacked justification to physically stop him from walking

away by grabbing him. His motion to suppress was denied.

A jury trial was held in this matter on March 5-6, 2018. Tim Mills, a

probation and parole specialist with Louisiana State Probation and Parole,

testified that he supervised Ardison in connection with a November 28,

2000, guilty plea to distribution of a Schedule I CDS. Ardison was

sentenced to 15 years’ imprisonment at hard labor for that conviction.

Ardison, who had a full-term parole date of December 23, 2017, was still

under Mills’ supervision at the time of his arrest for the instant offenses.

Ardison was convicted by the jury as charged. The jury was

unanimous on the weapon charge, but not on the drug charge.

On May 8, 2018, Ardison filed a motion for a post-verdict judgment

of acquittal and a motion for a new trial. Ardison appeared for sentencing
2

on September 12, 2018. The court denied the pending motions before

sentencing Ardison to 20 years of imprisonment at hard labor without the

benefit of parole, probation, or suspension of sentence on the firearm

conviction. On the conviction of possession with the intent to distribute a

Schedule II CDS, Ardison was sentenced to 20 years of imprisonment at

hard labor, with two years to be served without the benefit of parole,

probation, or suspension of sentence. The two sentences were to be served

concurrently. Ardison was given credit for time served.

On September 27, 2018, Ardison filed a motion to reconsider sentence

in which he contended that his sentences were constitutionally excessive and

that the trial court failed to adequately consider his age. The trial court

denied the motion on October 2, 2018.

Ardison has appealed, arguing that: (1) the trial court erred by denying

his motion to suppress; (2) the trial court failed to adequately build a record

with reasons justifying his concurrent sentences of 20 years; (3) his

sentences are constitutionally excessive; and (4) his rights to due process and

a fair trial were violated by Louisiana allowing a non-unanimous jury

conviction.

DISCUSSION

Motion to suppress

In his motion to suppress the drugs and weapon, Ardison argued that

the evidence should be suppressed because the agents lacked a reason or

cause to stop him.

Agent Belanger testified at the hearing on the motion to suppress that

he and Agent Witham were on routine patrol when they stopped at a home in

the 1600 block of Oakdale that was well-known as a trap house. Belanger
3

described a trap house as a home where nobody in particular lives, but where

drug dealers set up shop. Belanger asserted that he had been at that

residence many times for narcotics activity, and he considered it to be in a

high crime area.

Ardison was standing in the driveway while holding the hand of a

very young girl. Two older males were sitting in lawn chairs. Belanger

noted that when they typically approached people outside that residence,

someone would throw away drugs or weapons while running from the

location.

As Belanger and Witham exited their vehicle and approached the

three men, two of the men remained seated, but Ardison began walking out

to the street. Belanger “cut off” Ardison’s route and asked him to come

back to the driveway, which Ardison did. Belanger noted that Ardison

positioned the child between them and was acting in an evasive and

suspicious manner. Based on Ardison’s behavior and the nature of the

location, Belanger began to suspect that Ardison may be armed. By the

nature of the location, Belanger meant that it was a high crime and high drug

area, and usually someone was armed whenever officers had gone to that

particular residence. Belanger put his arm to Ardison’s back, told him to

relax, and stated he was going to pat him down. It was at that point that

Ardison began resisting. The weapon in Ardison’s waistband was revealed

as the pair struggled.

Asked if he had blocked Ardison’s way, Belanger explained that he

walked around the back of Ardison and asked him to “come back over here.”

Ardison, who complied by changing direction toward the house, returned to

nearly the same spot in the driveway where he had been originally standing.
4

Belanger noted that Ardison continued to act in an evasive manner as

he stepped left and right while standing in the driveway, and that Ardison

was looking around as if he was searching for an escape route. Ardison kept

placing the little girl between them, and Belanger could not engage him in

conversation. Accordingly, based on his knowledge, training, and

experience, Belanger became suspicious that Ardison was involved in

criminal activity. Belanger testified that he knew at that point that they

needed to pat Ardison down, because they could not allow Ardison to

continue without knowing that he was in fact unarmed. Ardison had his

back to Belanger at the time.

Agent Witham, who was assigned to narcotics with the CPSO,

testified that he had conducted four or five prior narcotics arrests or

investigations in the 1600 block of Oakdale. In reference to 1653 Oakdale,

Witham stated that it was a known drug location, he had executed search

warrants at that house, and he also had an open case at the house at the time

of his encounter with Ardison.

When Belanger and Witham first pulled up to the house, Witham

thought Ardison resembled someone he had previously arrested for crimes

involving drugs and guns. Witham described Ardison as looking like a

“deer in the headlights” when they first made contact with him. Witham

recalled that the two men sitting down were calm, but that Ardison looked

like he knew that he was in trouble when he saw the officers. Witham also

interpreted Ardison’s body language as expressing that something that “just

wasn’t right” was taking place between Ardison and the other two men.

Witham believed the little girl with Ardison was his daughter, and he

5

remembered that Ardison kept her close to him and basically used her as a

shield while Belanger was talking to him.

Witham also recalled that Ardison was creating distance from the two

other men when the officers first approached by making a “zigzag” motion

back and forth. After Ardison complied with Belanger’s request to come

back, he continued with this motion while Belanger was talking to him.

The State argued at the hearing on the motion to suppress that the

agents had reasonable suspicion to approach Ardison and conduct an

investigatory stop based on Ardison’s evasive and suspicious behavior, the

home’s history as a drug location known to the agents, and the high crime

nature of the area.

At the conclusion of the hearing, the trial court denied the motion to

suppress, stating, as follows:

So, Mr. Bowers, I agree with a lot of your argument. But at the
end of the day I’m going to deny the motion to suppress
because of the expertise and observation that the agents were
able to view and feel, for lack of a better word, without us being
there. I think that the testimony that they provided indicated
what amounted to reasonable suspicion for them. . . . based on
what they testified to and I believe that their expertise, skill and
training in that particular area gives them a leg up on something
that I’m not able to see from right here. So based on that I’m
going to deny the motion to suppress.

Ardison argues on appeal that the trial court erred in denying his

motion to suppress because the agents did not objectively have reasonable

suspicion to stop and frisk him. He urges that the agents did not observe any

weapons or illegal activity when they stopped him from walking away from

the driveway. Ardison contends that he was illegally seized when the agents

called him back to the driveway and it was clear by the authority asserted

that he was not free to leave.

6

Ardison maintains that the agents, who were dressed in uniform, made

a show of authority by telling Ardison that he needed to stay and talk after

he attempted to leave with his daughter. He argues that a reasonable person

in his position would not have felt free to leave. Moreover, based on the

information available to the agents at the time, there was not reasonable

suspicion to detain him.

In response, the State argues that Belanger’s approach and initial

encounter with Ardison were consensual. The State further argues that an

investigatory stop was justified when looking at the totality of the

circumstances (Ardison’s presence in a high crime area coupled with his

nervousness and other suspicious actions upon approach of the officers) and

considering the agents’ experience.

The Fourth Amendment to the United States Constitution and Article

1, §5 of the Louisiana Constitution prohibit unreasonable searches and

seizures. It is well settled that a search and seizure conducted without a

warrant issued on probable cause is per se unreasonable unless the

warrantless search and seizure can be justified by one of the narrowly drawn

exceptions to the warrant requirement.1 State v. Thompson, 2002-0333 (La.

4/9/03), 842 So. 2d 330.

One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88

S. Ct. 1868, 20 L.Ed.2d 889 (1968), when the Supreme Court held that a

police officer may, in appropriate circumstances and in an appropriate

1
Ardison was still under parole supervision at the time of his arrest. A person on
parole or probation has a reduced expectation of privacy under the Fourth Amendment
and under Article I, §5 of the Louisiana Constitution. State v. Angel, 44,924 (La. App. 2
Cir. 1/27/10), 31 So. 3d 547. This reduced expectation of privacy allows reasonable
warrantless searches of their person and residence by a probation or parole officer. See
La. C. Cr. P. art. 895(A)(13)(a); State v. Malone, 403 So. 2d 1234 (La. 1981). However,
neither agent involved in the encounter was a probation or parole officer.
7

manner, approach a person for purposes of investigating possibly criminal

behavior even though there is no probable cause to make an arrest. State v.

Morgan, 2009-2352 (La. 3/15/11), 59 So. 3d 403. To satisfy the

reasonableness requirement of the Fourth Amendment, police officers

conducting an investigatory stop must have a reasonable suspicion supported

by articulable facts that criminal activity “may be afoot.” United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)

(citing Terry, supra).

The officer must be able to articulate something more than an

inchoate and unparticularized suspicion or hunch as the Fourth Amendment

requires some minimal level of objective justification for making the stop.

Sokolow, supra.

Officers are allowed to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative

information available to them. United States v. Arvizu, 534 U.S. 266, 122 S.

Ct. 744, 151 L. Ed. 2d 740 (2002).

When determining whether the officers had a particularized and

objective basis for suspecting the person they stopped of criminal activity, a

court must take into account the totality of the circumstances, giving

deference to the inferences and deductions of a trained police officer. See

United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621

(1981); State v. Huntley, 1997-0965 (La. 3/13/98), 708 So. 2d 1048.

While a subject’s presence in a high crime area alone is insufficient to

support a reasonable suspicion of criminal activity, officers are not required

to ignore a location’s relevant characteristics to determine whether the

circumstances are sufficiently suspicious to warrant additional investigation.
8

Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).

A subject’s nervous, evasive behavior is another pertinent factor in

determining reasonable suspicion. Id. Headlong flight is the consummate

act of evasion. Id.

Presence in a high crime area, coupled with nervousness or flight or

other suspicious actions upon approach of officers, is sufficient to justify an

investigatory stop. State v. Marshall, 46,457 (La. App. 2 Cir. 8/10/11), 70

So. 3d 1106.

The Terry exception has been codified in La. C. Cr. P. art. 215.1,

which reads, in part:

A. A law enforcement officer may stop a person in a public
place whom he reasonably suspects is committing, has
committed, or is about to commit an offense and may demand
of him his name, address, and an explanation of his actions.

At the trial on a motion to suppress, the State has the burden of

proving the admissibility of any evidence seized without a warrant. La. C.

Cr. P. art. 703(D).

This court reviews the district court’s ruling on a motion to suppress

under the manifest error standard in regard to factual determinations, while

applying a de novo review to its findings of law. State v. Hemphill, 41,526

(La. App. 2 Cir. 11/17/06), 942 So. 2d 1263, writ denied, 2006-2976 (La.

3/9/07), 949 So. 2d 441.

A trial court’s denial of a motion to suppress is afforded great weight

and will not be set aside unless a preponderance of the evidence clearly

favors suppression. State v. White, 39,681 (La. App. 2 Cir. 5/11/05), 903 So.

2d 580.

9

When reviewing a trial court’s pretrial ruling on a motion to suppress,

the appellate court must look at the totality of the evidence presented at the

hearing on the motion to suppress and may review the entire record,

including testimony at trial. State v. Bates, 51,890 (La. App. 2 Cir. 2/28/18),

246 So. 3d 672.

We begin our analysis by considering the nature of the initial

encounter between Ardison and Agent Belanger. An encounter between a

police officer and a citizen does not trigger Fourth Amendment scrutiny

unless it loses its consensual nature. Florida v. Bostick, 501 U.S. 429, 111

S. Ct. 2382, 115 L. Ed. 2d 389 (1991).

The Fourth Amendment is not violated when a law enforcement

officer merely approaches an individual on the street or in another public

place to ask him if he is willing to answer some questions or by putting

questions to him if the person is willing to listen. Florida v. Royer, 460 U.S.

491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). As long as a reasonable

person would feel free to disregard the police and go about his business, the

encounter is consensual and no reasonable suspicion is required. Florida v.

Bostick, supra.

In United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L.

Ed. 2d 497 (1980), the Supreme Court concluded that a person has been

“seized” within the meaning of the Fourth Amendment only if, in view of all

of the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.

California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d

690 (1991), added the requirement to Mendenhall that the person actually

submit to the officer’s authority before the Fourth Amendment threshold is
10

crossed. State v. Richardson, 2009-0638 (La. 10/20/09), 23 So. 3d 254.

Thus, following Hodari D., a person was seized for purposes of the Fourth

Amendment only if he was physically restrained or if he actually submitted

to an official show of authority under circumstances in which a reasonable

person understood that his freedom of movement had been decisively

curtailed. State v. Richardson, supra.

The initial encounter between Ardison and Agent Belanger retained

its voluntary nature even after Ardison returned to the driveway following

Belanger’s request that he return. While Belanger “cut off” Ardison’s route

when he walked away as the agents approached, compare these facts to those

in State v. Lewis, 2000-3136 (La. 4/26/02), 815 So. 2d 818. In Lewis, two

police officers went to a housing project to investigate complaints that

trespassers were selling drugs there. As Lewis and a companion approached

the officers, Lewis and his companion separated. One officer stepped in

front of Lewis while the other officer stepped in front of his companion in

order to ask basic questions of them. When Lewis was asked for his

identification, he began running from the officers. The Louisiana Supreme

Court concluded that the officer’s request for identification without any

greater show of authority did not convert the encounter into a forcible

detention.

Even if Fourth Amendment scrutiny was triggered when Belanger

asked Ardison to return to the driveway, our consideration of the totality of

the circumstances, while giving deference to the inferences and deductions

of the agents, reveals that the agents had the requisite reasonable suspicion

to stop Ardison.

11

Ardison was not merely present in a generic high crime area, as he

was also present at the location of a known trap house. Belanger testified

that as the agents approached the group, they tried to key on suspicious

behavior, and Ardison was the only one displaying such behavior.

According to Witham, Ardison looked like a “deer in the headlights” when

the officers approached. In contrast, the two men sitting down remained

calm. Accordingly, the trial court did not err in denying the motion to

suppress.

Frisk for a weapon

Ardison also argues that the agents lacked reasonable suspicion to

frisk him for a weapon. He contends that even if the initial stop was lawful,

a detention for questioning does not automatically give a law enforcement

officer the authority to conduct a pat-down for weapons. He maintains that

the only information the agents had prior to their interaction with him was

that the location was a “high crime area,” and that his subsequent refusal to

converse with Belanger was not enough to cross the threshold of reasonable

suspicion that he had a weapon. Ardison adds that his reaction to being

grabbed is irrelevant to the determination of whether the agents had

reasonable suspicion to seize him and pat him down.

The Terry court stated that if “an officer is justified in believing that

the individual whose suspicious behavior he is investigating at close range is

armed and presently dangerous to the officer or to others, it would appear to

be clearly unreasonable to deny the officer the power to take necessary

measures to determine whether the person is in fact carrying a weapon and

to neutralize the threat of physical harm.” Id., 392 U.S. at 24, 88 S. Ct. at

1881. The Terry court went on to hold that in such circumstances, when
12

“nothing in the initial stages of the encounter serves to dispel his reasonable

fear for his own or others’ safety, [the officer] is entitled for the protection of

himself and others in the area to conduct a carefully limited search of the

outer clothing of such persons in an attempt to discover weapons which

might be used to assault him.” Id., 392 U.S. at 30, 88 S. Ct. at 1884-5.

This right of an officer to conduct a protective frisk is also codified in

La. C. Cr. P. art. 215.1(B), which provides that “[w]hen a law enforcement

officer has stopped a person for questioning pursuant to this Article and

reasonably suspects that he is in danger, he may frisk the outer clothing of

such person for a dangerous weapon.”

The officer’s suspicion that he is in danger is not reasonable unless the

officer can point to particular facts which led him to believe that the

individual was armed and dangerous. Sibron v. New York, 392 U.S. 40, 88

S. Ct. 1889, 20 L. Ed. 2d 917 (1968); State v. Hunter, 375 So. 2d 99 (La.

1979). The officer need not establish that it was more probable than not that

the detained individual was armed and dangerous, but it is sufficient that the

officer establish a “substantial possibility” of danger. Id. In determining the

lawfulness of an officer’s frisk of a suspect, courts must give due weight not

to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to

the specific reasonable inferences which he is entitled to draw from the facts

in light of his experience.” State v. Sims, 2002-2208 (La. 6/27/03), 851 So.

2d 1039 (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880).

The State counters that Ardison is precluded from having this

particular issue reviewed by this Court because Ardison’s argument that

Agent Belanger lacked reasonable suspicion to conduct a frisk was not

presented to the trial court. The State is correct on this point, as Louisiana
13

courts have long held a defendant may not raise new grounds for

suppressing evidence on appeal that he did not raise at the trial court in a

motion to suppress. See State v. Brown, 434 So. 2d 399 (La. 1983); State v.

Winzer, 49,316 (La. App. 2 Cir. 10/8/14), 151 So. 3d 135, writ denied, 2014-

2373 (La. 4/22/16), 191 So. 3d 1044.

Even if this Court considered Ardison’s argument, we would find that

Agent Belanger possessed the necessary justification for frisking Ardison for

a weapon. The location where they were standing was known for narcotics.

There is an association of weapons with drugs, and the agents had

encountered individuals with weapons at that location in the past. Ardison

was also acting in a suspicious manner as he had his back to Agent Belanger,

was using a young child as a shield, was not standing still, and looked to be

seeking an escape route. Under the circumstances, the frisk for weapons

was justified.

Excessive sentence

After pronouncing the sentence, the trial court stated that it had

considered the fact pattern and the factors outlined in La. C. Cr. P. 894.1. In

his motion to reconsider sentence, Ardison argued that his sentence was

cruel and unusual and in violation of the Eighth Amendment, and that the

court did not give adequate consideration to his age.

Ardison argues on appeal that his concurrent sentences of 20 years’

imprisonment are constitutionally excessive and unsupported by the record.

He complains that the trial judge did not tailor his sentences as she failed to

state what specific factors she took into consideration when imposing the

sentences. Ardison further complains that the judge failed to ask if he

wanted to give a statement, and that no PSI report was ordered, submitted, or
14

reviewed by the court. Ardison maintains that the trial court failed to

provide this Court with a record sufficient for review, and that his case

should be remanded for full consideration on the record of the factors used

in sentencing.

The State counters that Ardison failed to contemporaneously object to

not being able to address the court, and therefore, he has waived this

argument. The State also argues that the trial court complied with La. C. Cr.

P. art. 894.1 as evidenced by the court stating it did so on the record. The

State further maintains that the record shows a factual basis for the sentences

imposed in this case, and that the sentences are not excessive because

Ardison displayed a blatant disregard for the law.

A reviewing court imposes a two-prong test to determine whether a

sentence is excessive. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court

is not required to list every aggravating or mitigating circumstance so long

as the record reflects adequate consideration of the guidelines of the article.

State v. Smith, 433 So. 2d 688 (La. 1983); State v. Boehm, 51,229 (La. App.

2 Cir. 4/5/17), 217 So. 3d 596. The court shall state for the record the

considerations taken into account and the factual basis therefor in imposing

sentence. La. C. Cr. P. art. 894.1(C). The articulation of the factual basis

for the sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or

mechanical compliance with its provisions; and, where the record clearly

shows an adequate factual basis for the sentence, resentencing is

unnecessary even where there has not been full compliance with La. C. Cr.

P. art. 894.1. State v. Fontenot, 49,835 (La. App. 2 Cir. 5/27/15), 166 So. 3d

1215.
15

The defendant’s personal history (age, family ties, marital status,

health, employment record), prior criminal record, seriousness of the

offense, and the likelihood of rehabilitation are important elements to

consider. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Boehm, supra.

There is no requirement that specific matters be given any particular weight

at sentencing. State v. Boehm, supra.

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out

of proportion to the seriousness of the offense or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993). A sentence is considered grossly

disproportionate if, when the crime and punishment are viewed in light of

the harm done to society, it shocks the sense of justice. State v. Weaver,

2001-0467 (La. 1/15/02), 805 So. 2d 166.

A trial court has wide discretion to sentence within the statutory

limits. Absent a showing of manifest abuse of that discretion, a sentence

will not be set aside as excessive. On review, an appellate court does not

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. State v. Boehm, supra.

Whoever violates La. R.S. 14:95.1 shall be imprisoned at hard labor

for not less than 5, nor more than 20 years, without the benefit of probation,

parole, or suspension of sentence, and be fined not less than $1,000.00, nor

more than $5,000.00.

At the time of this offense, whoever committed the crime of

possession with intent to distribute cocaine was subject to a term of

imprisonment at hard labor for not less than 2 years, nor more than 30 years,

with the first 2 years without benefits, and possibly a fine of not more than
16

$50,000.00. La. R.S. 40:967(B)(4)(b). The penalty provisions were

amended by 2017 La. Acts. No. 281, effective August 1, 2017.

Even when a trial court assigns no reasons, the sentence will be set

aside on appeal and remanded for resentencing only if the record is either

inadequate or clearly indicates that the sentence is excessive. State v.

Honea, 2018-0018 (La. App. 1 Cir. 12/21/18), 268 So. 3d 1117. On

appellate review of a sentence, the relevant question is whether the trial

court abused its broad sentencing discretion, not whether another sentence

might have been more appropriate. State v. Thomas, 1998-1144 (La.

10/9/98), 719 So. 2d 49.

The record does not provide an adequate basis to review the

concurrent sentences for excessiveness. No PSI report was considered, and

the trial court made only a blanket statement about considering the “fact

pattern” and the factors outlined in La. C. Cr. P. 894.1. We discern nothing

about Ardison’s personal history and little about his criminal history from

this record. Accordingly, we vacate his sentences and remand for

resentencing.

Conviction by a non-unanimous jury

Ardison makes a claim of error patent regarding his conviction for

possession with the intent to distribute being based upon a jury verdict that

was not unanimous. He maintains that the issue is a matter of federal

constitutional law, and that the Louisiana Supreme Court is not the final

arbiter of this issue.

Ardison contends that when a “reasonable” juror has doubt as to

whether the State met its burden by voting not guilty, it is per se evidence

that the State did not prove its case beyond a reasonable doubt. Thus,
17

Ardison concludes that his procedural and substantive due process rights

were violated because the State failed to meet its burden of proving to the

entire jury that Ardison possessed cocaine with the intent to distribute it.

In response, the State argues that Ardison failed to contemporaneously

object to the jury composition, and thus, waived this argument. The State

further contends that the new jury conviction law is inapplicable to Ardison

because the law specifically applies to crimes committed after January 1,

2019, and Ardison committed the present offenses on June 8, 2017.

An amendment to Article I, §17 of the Louisiana Constitution was

approved by voters in November of 2018. That Section now states:

Jury Trial in Criminal Cases. A criminal case in which the
punishment may be capital shall be tried before a jury of twelve
persons, all of whom must concur to render a verdict. 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. . . .

The Legislature amended La. C. Cr. P. art. 782(A) in 2018 to provide,

in part:

A case for an offense committed prior to January 1, 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 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 State v. Ramos, 2016-1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d

44, writs denied, 2017-2133 (La. 6/15/18), 257 So. 3d 679, 2017-1177 (La.

10/15/18), 253 So. 3d 1300, Ramos argued that the trial court erred in

denying his motion to require a unanimous jury verdict. Ramos complained

18

that La. C. Cr. P. art. 782(A) violated the Equal Protection Clause, and that

Louisiana’s statutory scheme permitting non-unanimous jury verdicts in

non-capital felony cases should be declared unconstitutional.2 The Fourth

Circuit held in Ramos that under current jurisprudence from the U.S.

Supreme Court, non-unanimous 12-person jury verdicts are constitutional.

In reaching this result, the court in Ramos noted that in State v.

Bertrand, 2008-2215 (La. 3/17/09), 6 So. 3d 738, the Louisiana Supreme

Court reversed the trial court’s finding that La. C. Cr. P. art. 782(A) violated

the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution. The Supreme Court stated as follows:

Due to this Court’s prior determinations that Article 782
withstands constitutional scrutiny, and because we are not
presumptuous enough to suppose, upon mere speculation, that
the United States Supreme Court’s still valid determination that
non-unanimous 12 person jury verdicts are constitutional may
someday be overturned, we find that the trial court erred in
ruling that Article 782 violated the Fifth, Sixth, and Fourteenth
Amendments. With respect to that ruling, it should go without
saying that a trial judge is not at liberty to ignore the controlling
jurisprudence of superior courts.

Id., 2008-2215 at p. 8, 6 So. 3d at 743.

We recognize that on March 18, 2019, the United States Supreme

Court granted certiorari in Ramos to consider whether the Fourteenth

Amendment fully incorporates the Sixth Amendment guarantee of a

unanimous verdict. Ramos v. Louisiana, 139 S. Ct. 1318 (2019). However,

under current jurisprudence from the United States Supreme Court, non-

unanimous 12-person jury verdicts remain constitutional.

2
La. C. Cr. P. art. 782(A) provided at the time that “[c]ases 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.”
19

Under Louisiana law, the requirement of a unanimous jury conviction

specifically applies only to crimes committed after January 1, 2019. The

instant crimes were committed in 2017, and thus, the amended unanimous

jury requirement is inapplicable to Ardison’s case. Ardison’s assertion of an

“error patent” is without merit.

CONCLUSION

For the foregoing reasons, Roosevelt Ardison’s convictions are

AFFIRMED, his sentences are VACATED, and this matter is REMANDED

to the trial court for resentencing.

20

WILLIAMS, C.J., dissents.

I respectfully dissent. I cannot say the evidence demonstrates that the

officer possessed articulable knowledge of specific facts which provided

reasonable grounds to suspect defendant of illegal activity at the time of the

stop.

The majority’s assertion that defendant’s return to the driveway was

“voluntary” strains credulity in a situation where the officer walked from

behind defendant to step in front of him and cut off his path. The evidence

shows that a reasonable person in that situation would not have felt free to

leave.

The testimony demonstrates that defendant did not run at the sight of

the police, but began walking away with his child as the officers approached.

Although this was a high-crime area, the police officers were not responding

to a reported crime when they stopped at the house. In addition, the

encounter did not occur late at night in a dimly lit area. The record shows

that at the time defendant was prevented from leaving, the police officer’s

suspicion was based on defendant’s presence in front of that house in a high

crime area, his physical appearance and his behavior in walking away.

These facts show that in stopping defendant, the officer was acting on

nothing more than a hunch. The result of the trial court’s ruling and this

court’s decision is to signal that a person who happens to reside in an area

labeled as a high-crime zone has a reduced expectation of privacy and fewer

rights than those who reside in low-crime areas.

When considering the totality of the circumstances, I cannot say the

state met its burden to show that defendant’s act of walking away as police

approached at that location gave the officer the minimal level of objective
1

justification to make the investigatory stop of defendant. Based upon this

record, I conclude the trial court erred in denying defendant’s motion to

suppress.

2