State of Louisiana v. Glynn Juniors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-649

STATE OF LOUISIANA

VERSUS

GLYNN JUNIORS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF VERMILION, NO. 37,733,
HONORABLE J. STERLING SNOWDY, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

CONVICTION AND SENTENCE CONDITIONALLY
AFFIRMED; REMANDED WITH INSTRUCTIONS.

Rodney A. Brignac
Special Assistant District Attorney
Post Office Box 399
LaPlace, Louisiana 70069-0399
(985) 652-9757
Counsel for:
State of Louisiana

Michael Harson
District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502-3306
(337) 232-5170
Counsel for:
State of Louisiana

Katherine M. Franks
Louisiana Appellate Project
Post Office Box 2341
Slidell, Louisiana 70459-2341
(985) 847-1212
Counsel for Defendant/Appellant:
Glynn Juniors

SULLIVAN, Judge.

Defendant, Glynn Juniors, was indicted in St. John the Baptist Parish in the

Fortieth Judicial District for the first degree murder of Joann Edler, a violation of

La.R.S. 14:30. Pursuant to a defense motion for a change of venue, the case was

transferred to Vermilion Parish in the Fifteenth Judicial District. Subsequently, the

charge against Defendant was amended to second degree murder, a violation of

La.R.S. 14:30.1. After a jury trial in Vermilion Parish, Defendant was found guilty

of second degree murder by a vote of eleven to one. He was later sentenced to the

mandatory term of life imprisonment at hard labor. He appeals his conviction and

sentence, raising seven assignments of error. For the following reasons, we

conditionally affirm Defendant’s conviction and sentence pending remand for a

determination of whether a nunc pro tunc hearing to assess Defendant’s competency

is possible, and if so, the outcome of that hearing.

Procedural History

A grand jury indicted Defendant and a co-defendant, Ronald Williams, for the

first-degree murder of Joann Edler, an employee of BRS Seafood in LaPlace,

Louisiana, who was found dead at her place of employment with her throat slashed

and a gunshot wound to her head.1 That indictment initially bore docket number 98-

88 and was assigned to Division “B” of the Fortieth Judicial District. The same

individuals were also indicted for attempted first degree murder and attempted armed

robbery in an incident that occurred at the In & Out Food Store in Reserve, Louisiana.

That indictment was assigned docket number 98-12 and allotted to Division “C.”

On January 22, 1998, Defendant appeared with appointed counsel from the

indigent defender board (IDB) in Division “C” and pleaded not guilty to all charges

1
Williams was charged with being a principal to the first degree murder of Ms. Edler. He
later pleaded guilty as charged and testified against Defendant in the instant trial.

in both indictments. At that hearing, counsel for the State stated that the first

indictment handed down, for first degree murder, was “inadvertently filed into the

wrong jacket” and requested that the court switch the docket numbers so that “the

murder indictment is in the proper number 98-12(2) and the attempted first degree

murder and attempted armed robbery indictment is in its proper jacket which would

be 98-88.” The present case thereafter proceeded under docket number 98-12 in

Division “C.”

On January 30, 1998, two capital-qualified attorneys enrolled as counsel for

Defendant. Various pre-trial filings were dealt with throughout 1998 and 1999. On

January 3, 2000, Defendant filed a “Motion for Mental Examination.” The court

granted the motions, and set a hearing for April of 2000. The record does not show

a ruling on this motion. The case was reset multiple times, then on October 9, 2000,

in open court, the State announced it would not seek the death penalty. On

October 19, 2000, capital counsel moved to withdraw; the trial court granted the

motion and again appointed counsel from the IDB.

On April 12, 2001, Defendant filed a motion for change of venue, which the

trial court granted on June 22, 2001. On July 23, 2001, the trial court issued an order

setting jury selection in Lafayette Parish. However, on July 31, 2001, the court issued

a new order, transferring the case to Vermilion Parish “by special arrangement with

the judges of the 15th Judicial District Court.”

On August 14, 2001, the trial court ordered that the entire record be transferred

to Vermilion Parish. On August 17, 2001, the State filed a motion to amend the

indictment to second degree murder. The record was physically delivered to

Vermilion Parish on the same date. On August 22, 2001, Defendant pleaded not

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guilty to the amended charge. The minutes are not clear regarding which judicial

district conducted the plea hearing, but Defendant was returned to the St. John the

Baptist Parish jail at the close of the hearing.

After additional pre-trial motions, jury selection commenced in the Fifteenth

Judicial District in Vermilion Parish on September 5, 2001. After hearing evidence

for two days, the jury found Defendant guilty of second degree murder.

In response to Defendant’s written motion to be sentenced in the original

venue, trial court set the sentencing hearing for St. John the Baptist Parish. On

November 13, 2001, the trial court sentenced Defendant to the mandatory term, life

imprisonment at hard labor.

Defendant filed a timely motion for appeal on November 16, 2001. The motion

included a request that the Louisiana Appellate Project (LAP) represent him on

appeal. The trial court sent the notice of appeal to the Louisiana Fifth Circuit Court

of Appeal. Subsequently, the appeals clerk for the Fortieth Judicial District filed for

an extension of the return date with the fifth circuit. The appellate court granted the

motion on February 27, 2002, extending the return date to March 13, 2002. On

March 27, 2002, the LAP filed a letter in the district court naming Jennifer Pate as the

LAP attorney assigned to the case. The record indicates the case then lay dormant for

approximately two years.

On June 2, 2004, the clerk of court for St. John the Baptist Clerk Parish filed

a notice with the Vermilion Parish clerk’s office, indicating transcripts and other

filings were transferred to the latter clerk’s office. On June 13, 2004, the LAP sent

a letter to the St. John the Baptist Parish clerk indicating that Kay Franks had been

appointed to handle the case. On June 30, 2004, the Vermilion Parish clerk’s office

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filed a notice that it was transferring a large number of transcripts, exhibits, and other

filings back to St. John the Baptist Parish. Counsel Franks then proceeded with

filings in St. John the Baptist Parish and in the fifth circuit. On March 31, 2005, a

panel of the fifth circuit concluded that it lacked jurisdiction over the case and

ordered that the record be transferred to this court.

Assignment of Error No. 1

In his first assignment of error, Defendant argues that the trial court erred by

allowing the State to “swap” docket numbers for the two cases in which he was

charged. He asserts that the exchange of docket numbers, in effect, allowed the State

to choose which judge would hear the case.

District attorneys are prohibited from having any power to select the trial judge

for a particular case. The allotment of cases to trial judges must be on a random

basis; the prosecution cannot have any power to control the allotment process. State

v. Broussard, 03-1340 (La. 6/26/03), 852 So.2d 978; State v. Simpson, 551 So.2d

1303 (La.1989). However, as Defendant raises this issue for the first time on appeal,

he must show prejudice to warrant reversal of his conviction. Such alleged prejudice

is assessed pursuant to a harmless-error analysis. State v. Huls, 95-541 (La.App. 1

Cir. 5/29/96), 676 So.2d 160, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126.

As Defendant observes, he was arraigned on January 22, 1998. The minutes

show that the trial court granted the State’s motion to “transfer” the indictment

bearing the present charges (Case 1998-88(2)) into another case (Case 1998-12(2)).

Neither the minutes nor the transcript of that hearing indicate that Defendant objected

to the transfer as shown in the following exchange:

MRS. GRAUGNARD [for the State]:

4

Your Honor, in connection with the arraignment, the State would
move in accordance with the situation we explained in the
Williams’ matter, that the indictment against Mr. Juniors was
returned by the Grand Jury prior to the indictment in the
attempted first degree murder and attempted armed robbery
matter. The indictment in the murder case has been inadvertently
filed into the wrong jacket. This matter was assigned the number
98-12 “C” which appears, as a matter of fact on Mr. Stricks’
pleadings this morning, and was inadvertently filed into the 98-88
jacket. So we would ask that those, that those indictments be
switched so that the murder indictment is in its proper number 98-
12 (2) and the attempted first degree murder and attempted armed
robbery indictment is in its proper jacket which would be 98-88
(2).

MR. STRICKS [for Defendant]:
Your Honor, may I inquire if 98-88 has been randomly allotted?

THE COURT:
Yes, it has.

MR. STRICKS:
And where’s it been allotted to?

THE COURT:
It’s been allotted to “B”.

MR. STRICKS:
Okay. So in 98-12 we have the capital indictment, is that correct?

MRS. GRAUGNARD:
Correct, should be.

MR. STRICKS:
And in 98.

THE COURT:
88 (2).

MR. STRICKS:
We have the attempt.

THE COURT:
Attempted first degree murder and the attempted armed robbery
in [the In & Out] situation.

MR. STRICKS:

5

Yes, sir. And is Mr. Juniors going to be arraigned on all of those
today?

MRS. GRAUGNARD:
Yes, sir, that would be our request.

MR. STRICKS:
Well, it’s possible that he may have other counsel assigned in that
“B” matter.

THE COURT:
That is correct.

MR. STRICKS:
We’ll take that up later.

Even if the State did exert improper control in the allotment process, we find

that any such error would be harmless. At the trial level, Defendant did not seek to

recuse the trial judge, and on appeal, Defendant makes no allegations that trial judge

was biased.

This assignment of error lacks merit.

Assignments of Error Nos. 2, 3, and 4

In his appellate brief, Defendant has combined his next three assignments of

error, as the second and third assignments contain similar attacks on the authority of

the trial judge and the prosecutors from St. John the Baptist Parish to conduct and to

participate in the trial after venue had been changed to Vermilion Parish and the

fourth assignment concerns the allotment of the case in Vermillion Parish.2

Defendant argues that, since the trial judge and prosecutors acted outside their

territorial jurisdictions without authorization from the supreme court, their actions in

2
At the outset, we note that Defendant’s fourth assignment of error argues that the Fifteenth
Judicial District Clerk of Court’s Office failed to properly allot the case once it was transferred. To
the extent the assignment raises issues regarding random allotment, we find that it lacks merit for
the reasons given in the analysis of the first assignment of error. Essentially, Defendant has failed
to demonstrate prejudice.

6

Vermilion Parish were invalid. He, thus, contends that his conviction is a nullity due

to a structural error that requires remand for a new trial.

Defendant requested and received a change of venue from St. John the Baptist

Parish. Although he states in his brief that he intends to raise on post-conviction

relief that his attorney should have objected to the site of the transfer, Vermilion

Parish, that claim is not before us on appeal. Accordingly, for the purposes of these

assignments, we will treat the change of venue as valid.

To the extent that Defendant suggests the Fifteenth Judicial District did not

have jurisdiction over his case as contemplated by La.Code Crim.P. art. 859(3), that

argument must fail. As the comments to Article 859 state, lack of jurisdiction

“embraces such matters as the trial of a juvenile by a regular district court for a

noncapital crime, trial of a felony by a city court, or trial in a Louisiana court for a

federal crime.” Clearly, the Fifteenth Judicial District had the authority to try

Defendant’s noncapital felony prosecution, a proceeding that originated in the

Fortieth Judicial District but was transferred pursuant to the Code of Criminal

Procedure. As La.Code Crim.P. art. 611 (emphasis added) provides in part: “All

trials shall take place in the parish where the offense has been committed, unless the

venue is changed.” Under La.Code Crim.P. art. 623, “[w]hen a change of venue is

granted, the court shall transfer the case to another parish.” Additionally, Defendant

has not otherwise challenged the qualifications of the presiding judge, who would

have conducted the trial had the case remained in its original venue. Further, as noted

in our previous discussion, Defendant makes no allegations of bias or prejudice on

the part of the trial judge.

7

Defendant’s arguments are concerned more with the implementation of a

change of venue, rather than the validity of such an order or the power of the

transferee court to hear the case. Concerning the mechanics of a change of venue,

La.Code Crim.P. art. 624 provides:

When a change of venue is granted, the clerk of the court in which
the case is pending shall make and retain copies of all documents
relating to the case. He shall deliver the original documents together
with certified copies of all minute entries of the case to the clerk of the
court to which the case is transferred, who shall enter the case upon the
docket of the court, and the case shall be proceeded with in the same
manner as if the proceedings had originally been instituted therein.

Although this article provides little guidance for courts in implementing a

change of venue, our research has revealed cases in which the trial judge has

“followed” the case from the original venue to the transferee court. See State v. M.M.,

00-1296 (La.App. 3 Cir. 8/29/01), 802 So.2d 43, writ denied, 01-3370 (La. 10/4/02),

826 So.2d 1121; State v. Bolden, 95-749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, writ

denied, 96-1272 (La. 11/22/96), 683 So.2d 286 (pursuant to an ad hoc appointment);

and State v. Lee, 569 So.2d 1038 (La.App. 3 Cir. 1990). Thus, despite the last

sentence of Article 624, Louisiana courts have employed different methods in

deciding the matter of which trial judge will preside over a transferred case.

As Defendant’s arguments cannot support an attack on the subject matter

jurisdiction of the Fifteenth Judicial District, nor do they otherwise challenge the

qualifications of the presiding judge, we find that any objections to the trial judge’s

or the prosecutors’ authority in this case should have been raised pursuant to a motion

to quash, as provided by the general article governing such motions. As La.Code

Crim.P. art. 531 states: “All pleas or defenses raised before trial, other than mental

incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by

8

reason of insanity,’ shall be urged by a motion to quash.” See also State v. Dean,

99-475, p. 3 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, 58-59, writ denied, 99-3413 (La.

5/26/00), 762 So.2d 1101, which stated:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas
are urged, i.e. pleas which do not go to the merits of the charge. At a
hearing on such a motion, evidence is limited to procedural matters and
the question of factual guilt or innocence is not before the court.

Although Dean dealt with a different issue than the present case, its description

of the basic function of a motion to quash is logical and comports with the language

of the article. In State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044, cert.

denied, __U.S. __, 125 S.Ct. 1745 (2005), the supreme court stated that the proper

method for contesting a charging instrument is through a pre-trial motion to quash.

Thus, the defendant’s failure to file such a motion waived the issue for purposes of

the appeal.

We further find that Defendant’s reliance on State v. Langley, 04-269 (La.App.

3 Cir. 12/29/04), 896 So.2d 200, as authority for structural error in the present case

is misplaced. In Langley, 896 So.2d at 210, the trial judge’s actions of absenting

himself throughout critical stages of a second degree murder trial resulted in “the

inability to adequately and appropriately oversee voir dire and rule on challenges, the

necessity of prohibiting contemporaneous objections during closing arguments, . . .

and the unavailability of an authoritative figure in the courtroom to immediately

squelch disruptions.” In the present case, any alleged error could have been easily

corrected pre-trial, but absent that correction, it had no effect on the conduct of the

trial.

These assignments of error lack merit.

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Assignment of Error No. 5

In his fifth assignment of error, Defendant contends that the trial judge erred

in permitting the case to be tried without adjudicating his competency to proceed after

a sanity commission had been invoked.

Defendant filed a motion for a mental examination, asserting that he was in

need of a mental evaluation to determine his sanity at the time of the commission of

the offense and that he may not be competent to assist counsel in his own defense.

The trial court granted the motion on January 3, 2000, appointing a sanity

commission composed of Dr. Christy Montegut and Dr. Rafael Salcedo. A hearing

to consider the matter was scheduled for April 19, 2000. A minute entry for April 19,

2000 indicates the hearing was reset.

Dr. Montegut wrote a letter dated June 21, 2000, stating that she had examined

Defendant and that she had determined he was mentally competent. She stated in her

letter: “After a careful examination, it is my opinion that Glynn Juniors understands

the charges against him and is able to assist his attorney in his own defense. He

understands right from wrong and the functions of the court. He is mentally

competent to stand trial.”

In a letter dated June 21, 2000, Dr. Salcedo stated that his examination revealed

that Defendant was not suffering from a “mental disorder that interferes with his

ability to understand the Bennet criteria.” Accordingly, Dr. Salcedo’s letter

recommended that “Mr. Green be found competent to proceed to trial.” The name

“Green” was then crossed out and the name “Juniors” and what appears to be the

letter “M” were hand written above the crossed out name.

10

There are no other minute entries or documents in the record that indicate a

sanity hearing was held or that the trial court made a finding regarding Defendant’s

sanity or competency to assist his attorney. However, the matter proceed to trial by

jury, and Defendant was found guilty of second degree murder and sentenced to life

imprisonment.

Defendant contends that the trial court’s failure to resolve the issue of his

competency before proceeding to trial was error and that the failure to hold a

contradictory hearing was not harmless, as the reports of the sanity commission failed

to mention the basis for the assessment of competency. However, Defendant also

contends that because the reports of the sanity commission are contained in the

record, a retroactive inquiry into his competency may be had and the matter should

be remanded for a nunc pro tunc hearing.

“When the question of the defendant’s mental incapacity to proceed is raised,

there shall be no further steps in the criminal prosecution, except the institution of

prosecution, until the defendant is found to have the mental capacity to proceed.”

La.Code Crim.P. art. 642.

The supreme court discussed the need to address a defendant’s competency in

State ex rel. Seals v. State, 00-2738, pp. 5-6 (La. 10/25/02), 831 So.2d 828, 832-33

(citations omitted) (emphasis added), as follows:

At the outset, we note the longstanding precept that a defendant
does not have an absolute right to the appointment of a sanity
commission simply upon request. A trial judge is only required to order
a mental examination of a defendant when there are reasonable grounds
to doubt the defendant’s mental capacity to proceed. It is well
established that “reasonable grounds” exist where one should reasonably
doubt the defendant’s capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in
preparing his defense. To determine a defendant’s capacity, we are first
guided by La.Code Crim. Proc. arts. 642, 643, and 647.

11

As a general matter, La.Code Crim. Proc. art. 642 allows “[t]he
defendant’s mental incapacity to proceed [to] be raised at any time by
the defense, the district attorney, or the court.” The Article additionally
requires that “[w]hen the question of the defendant’s mental incapacity
to proceed is raised, there shall be no further steps in the criminal
prosecution . . . until the defendant is found to have the mental capacity
to proceed.” Next, Article 643 provides in pertinent part, “The court
shall order a mental examination of the defendant when it has reasonable
ground to doubt the defendant’s mental capacity to proceed . . . .” Last,
if a defendant’s mental incapacity has been properly raised, the
proceedings can only continue under La.Code Crim. Proc. art. 647
which provides:

The issue of the defendant’s mental capacity to
proceed shall be determined by the court in a contradictory
hearing. The report of the sanity commission is admissible
in evidence at the hearing, and members of the sanity
commission may be called as witnesses by the court, the
defense, or the district attorney. . . .

This protection, however, is not to say that every time a defendant
feigns incapacity the court must order a full-blown sanity commission.
In State v. Berry, 391 So.2d 406, 411 (La.1980), we firmly held that the
trial court is granted great discretion in determining if a defendant
should be afforded a mental examination to determine capacity. Indeed,
where a trial judge finds enough evidence to doubt a defendant’s
capacity, the court may order the defendant be examined by a single
psychiatrist to satisfy requirements of La.Code Crim. Proc. art. 643.
There is no need for a sanity commission to be appointed each time
capacity of a defendant is questioned.

That being said, questions regarding a defendant’s capacity must
be deemed by the court to be bona fide and in good faith before a court
will consider if there are “reasonable grounds” to doubt capacity. Where
there is a bona fide question raised regarding a defendant’s capacity,
the failure to observe procedures to protect a defendant’s right not to
be tried or convicted while incompetent to stand trial deprives him of his
due process right to a fair trial. At this point, the failure to resolve the
issue of a defendant’s capacity to proceed may result in nullification of
the conviction and sentence under State v. Nomey, 613 So.2d 157,
161-62 (La.1993), or a nunc pro tunc hearing to determine competency
retrospectively under State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d
832.

In the case sub judice, the trial court appointed a sanity commission whose

members examined Defendant. However, there is no evidence that the court made a

12

ruling as to Defendant’s competency before or after the matter proceeded to trial. In

its brief, the State argues that Defendant waived this issue; however, jurisprudence

indicates that a waiver is not appropriate once the trial court has made the threshold

determination to appoint a sanity commission. Compare State v. Gowan, 96-488

(La. 3/29/96), 670 So.2d 1222, and State v. Mathews, 00-2115 (La.App. 1 Cir.

9/28/01), 809 So.2d 1002, writ denied, 01-2873 (La. 9/13/02), 824 So.2d 1191, writ

denied, 01-2907 (La. 10/14/02), 827 So.2d 412. Accordingly, we find that the trial

court erred by not following La.Code Crim.P. art. 642.

This court must now determine whether a nunc pro tunc hearing on the issue

of competency is appropriate.

The federal courts of appeals, although noting that retrospective
competency hearings are not favored, have allowed nunc pro tunc
hearings on the issue of competency if a meaningful inquiry into the
defendant’s competency can still be had. The trial court is in the best
position to determine whether it can make a retrospective determination
of defendant's competency during his trial and sentencing. The
determination of whether a trial court can hold a meaningful
retrospective competency hearing is necessarily decided on a
case-by-case basis. The State bears the burden to show the court that the
tools of rational decision are available.

A “meaningful” determination is possible “where the state of the
record, together with such additional evidence as may be relevant and
available, permits an accurate assessment of the defendant’s condition
at the time of the original state proceedings.” Additionally, “[w]hen
determining whether a meaningful hearing may be held, we look to the
existence of contemporaneous medical evidence, the recollections of
non-experts who had the opportunity to interact with the defendant
during the relevant period, statements by the defendant in the trial
transcript, and the existence of medical records. The passage of time is
not an insurmountable obstacle if sufficient contemporaneous
information is available.” The court in Miller v. Dugger, 838 F.2d 1530
(11th Cir.1988) noted that it had never given the district courts a list of
factors that must be met in order to determine that a nunc pro tunc
determination of competency is possible, but stated that relevant factors
include time, availability of witnesses and the existence of evidence on
the state record about the defendant’s mental state at the time.

13

State v. Snyder, 98-1078, pp. 30-31 (La. 4/14/99), 750 So.2d 832, 855 (citations

omitted) (footnote omitted).

In the present case, Defendant was examined by the two members of the sanity

commission. Additionally, the record indicates that Defendant may have been

evaluated by other mental health experts, given defense counsel’s statements at a

hearing on July 31, 1998, that an “ex-parte motion for funds for psychiatric experts”

had already been granted, that a forensic social worker that had been ordered to

conduct the investigation was no longer employed by the clinic being used, and that

an order substituting a replacement would be presented to the court. Thus, there may

be information regarding Defendant’s competency that is available to the trial court

that is not contained in this appellate record. Accordingly, the trial court may be able

to make a retrospective determination regarding Defendant’s competency at the time

of trial.

For these reasons, we remand this case to the trial court for the sole purpose of

determining whether such a hearing is now possible and, if so, to conduct such an

evidentiary hearing. If the trial court concludes that Defendant was competent, no

new trial is required. If the trial court finds a meaningful inquiry cannot be had, or

if it determines after the hearing that Defendant was not competent at the time of his

trial, Defendant is entitled to a new trial. See Snyder, 750 So.2d 832; Mathews, 809

So.2d 1002.

This assignment of error requires further action by the trial court.

Assignment of Error No. 6

In his sixth assignment of error, Defendant contends that the trial court

committed error when it denied a mistrial based upon a misdescribed exhibit being

14

displayed and read to the jury containing, among other things, the bill of indictment

charging him with first degree murder and several joint minute entries mentioning

aspects of the case, including the fact of other offenses, the possibility of a

confession, and the existence of “bad acts” that had not been introduced at trial.

After the testimony of Ronald Williams, the State made the following offering:

[T]he State would offer to introduce and file the bill under indictment
#98, State versus Ronald Williams. We also request that a certified
extract of the minutes reflecting the plea of May 11, 1999 be offered
into the record. And that would, the indictment and certified extract
would be offered as State number, I believe, 17.

In addition, Your Honor, the State would offer, introduce, and file
the original plea agreement contained in that record, which I have
marked with a piece of blue note paper consisting of three pages and ask
that a photocopy be substituted for the original for publication to the
jury.

At this time, Your Honor, the State would request that the state
evidence be published to the jury.

Defense counsel indicated he had no objection.

While the jury viewed the exhibits, the defense attorney questioned whether the

jurors were viewing the indictment. He then informed the court that he had never

seen the exhibit. Defense counsel subsequently examined the exhibits and moved for

a mistrial, stating the following:

There is a—When the district attorney offered State’s Exhibit 17-A,
what the—what the Defense offered was the plea form and a copy of the
minutes of the plea. What has been presented to the jury, however, is a
first degree murder indictment of Glynn Juniors and Ronald Williams
together,—

....

—the entire history of this case, including minutes where it says,
um, motion to reveal the deals, dash, note—the minutes of this case, all
of which is highly prejudicial, none of which is admissible, and is far
beyond what was expected to be included as an exhibit which was the
minutes of the guilty plea and the sentencing.

15

Now, an indictment of Ronald Williams, we have no problem
with. But this is a—What the jury has just seen now is the joint
indictment, and—Just one moment. So I would like the Court to look
at what has been marked as this Exhibit D-7, which included the minutes
of the sentencing, the guilty plea of . . . Ronald Williams, but what was
shown to the jury was far more and highly prejudicial.

Defense counsel continued, indicating that it “was never said in court what the

exhibit was going to be, and certainly, not all of the minutes for the entire case since

its inception.” Defense counsel indicated that he did not know who prepared the

exhibit and, had he seen the exhibit before it was presented to the jury, he would have

objected to its introduction into evidence.

After hearing the arguments of counsel, the trial court took the matter under

advisement. The motion was subsequently denied. The exhibit displayed to the jury

was made Court Exhibit 1 and a corrected exhibit replaced the improper exhibit that

was presented to the jury. The trial court noted that “[i]t was never the intention of

the State to offer what is now published to the jury.” Additionally, the trial court read

portions of an admonishment, proposed by defense counsel, regarding the exhibit at

issue to the jury. In admonishing the jury, the trial court stated:

Mr. Glynn Juniors is charged with Second Degree Murder.

The fact that two defendants are charged in an Indictment is not
any evidence of guilt of the accused.

The fact that defendants have been in court on the case before this
trial is not to be considered by you in any way.

And the fact that lawyers have filed papers or made statements in
pre-trial proceedings is not to be considered by you in any way.

The record shows that Ronald Williams was indicted for being a
Principal to First Degree Murder and pleaded guilty to being a Principal
to First Degree Murder.

16

Defendant contends that the trial court erred by not granting a mistrial based

upon La.Code Crim.P. art. 775, which provides in part that a mistrial shall be granted

“when prejudicial conduct in or outside the courtroom makes it impossible for the

defendant to obtain a fair trial, or when authorized by Article 770 or 771.” We

disagree. As the court stated in State v. Sloan, 29,787, p. 8 (La.App. 2 Cir. 9/24/97),

701 So.2d 995, 999, writ denied, 97-2601 (La. 2/6/98), 709 So.2d 731 (citations

omitted):

A mistrial is a drastic remedy and is warranted only when the error
results in substantial prejudice sufficient to deprive the defendant of any
reasonable expectation of a fair trial. The decision to grant or deny a
mistrial for prejudicial conduct rests within the trial court’s discretion
and will not be disturbed absent an abuse of discretion.

We find no abuse of the trial court’s discretion in denying a mistrial based upon

the jurors viewing the documents described, given the trial court’s thorough

admonition.

This assignment of error lacks merit.

Assignment of Error No. 7

In his seventh assignment of error, Defendant contends that he was convicted

by a non-unanimous verdict in violation of the Sixth Amendment right to trial by jury

in combination with the Fourteenth Amendment due process right.

Louisiana Constitution Article I, § 17(A) provides that a case “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.” Additionally, La.Code

Crim.P. art. 782(A) provides in part 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.” Defendant was charged with second degree

17

murder, which is punishable by life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence. La.R.S. 14:31. A jury of twelve was

empaneled in the case sub judice, and eleven of those jurors concurred in the verdict.

Accordingly, the proper number of jurors concurred in the verdict.

We note that the second circuit in State v. Divers, 38,524, p. 26 (La.App. 2 Cir.

11/23/04), 889 So.2d 335, 353 writ denied, 04-3186 (La. 4/8/05), 899 So.2d 2,

recently rejected a similar argument, stating: “Non-unanimous jury verdicts for

twelve person juries are not unconstitutional.” The second circuit cited as authority

Apodaca v. Oregon, 406 U.S. 404, 410-11, 92 S.Ct. 1628, 1632-33 (1972) (emphasis

added) (footnote omitted), wherein the United States Supreme Court stated:

[T]he purpose of trial by jury is to prevent oppression by the
Government by providing a “safeguard against the corrupt or
overzealous prosecutor and against the complaint, biased, or eccentric
judge.” Duncan v. Louisiana, 391 U.S. [145] at 156, 88 S.Ct. [1444] at
1451 [(1968)]. “Given this purpose, the essential feature of a jury
obviously lies in the interposition between the accused and his accuser
of the commonsense judgment of a group of laymen . . .” Williams v.
Florida, supra, 399 U.S. [78] at 100, 90 S.Ct. [1893] at 1906 [(1970)].
A requirement of unanimity, however, does not materially contribute to
the exercise of this commonsense judgment. As we said in Williams, a
jury will come to such a judgment as long as it consists of a group of
laymen representative of a cross section of the community who have the
duty and the opportunity to deliberate, free from outside attempts at
intimidation, on the question of a defendant’s guilt. In terms of this
function we perceive no difference between juries required to act
unanimously and those permitted to convict or acquit by votes of 10 to
two or 11 to one. Requiring unanimity would obviously produce hung
juries in some situations where nonunanimous juries will convict or
acquit. But in either case, the interest of the defendant in having the
judgment of his peers interposed between himself and the officers of the
State who prosecute and judge him is equally well served.

See also Johnson v. Louisiana, 406 U.S. 356, 359, 92 S.Ct. 1620, 1623 (1972), in

which the United States Supreme Court stated that it had “never held jury unanimity

to be a requisite of due process of law.”

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Nonetheless, Defendant argues that Apodaca has been implicitly overruled by

recent jurisprudence from the United States Supreme Court. We disagree, noting that

the Court has not expressly questioned its ruling in Apodaca and, further, that the

cases cited by Defendant do not address whether a unanimous jury verdict is required.

Those cases concern what issues must be decided by a jury.3

This assignment of error lacks merit.

Decree

For the above reasons, Defendant’s conviction and sentence are conditionally

affirmed pending the outcome on remand as explained in this opinion.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED;
REMANDED WITH INSTRUCTIONS.

3
In the cases cited by Defendant, the United States Supreme Court held that the following
issues must be submitted to a jury and proved beyond a reasonable doubt: Jones v. U.S. 526 U.S.
227, 119 S.Ct. 1215 (1999) (elements of the offense); Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact that
increases the penalty beyond the statutory maximum); and Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
2428 (2002) (aggravating factors required for imposition of the death penalty).

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