State of Louisiana v. Will Antonio Celestine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-42

STATE OF LOUISIANA

VERSUS

WILL ANTONIO CELESTINE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 16636-15
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

John Foster DeRosier, District Attorney
Karen C. McLellan, Assistant District Attorney
Fourteenth Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Mary Constance Hanes
P. O. Box 4015
New Orleans, LA 70178
(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
Will Antonio Celestine

Jeffrey M. Landry, Attorney General
J. Taylor Gray, Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR OTHER APPELLEE:
Attorney General of the State of Louisiana

EZELL, Judge.

Defendant, Will Antonio Celestine, was charged by bill of information filed

on June 22, 2015, with illegal use of a weapon, a violation of La.R.S. 14:94, and

possession of a weapon by a convicted felon, a violation of La.R.S. 14:95.1. On

August 13, 2015, the bill of information was amended to add the charge of

unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3. The

bill of information was amended again on November 13, 2017, to clarify

information regarding the offenses charged.

Trial by jury commenced on November 13, 2017. On November 15, 2017,

the jury found Defendant guilty of the responsive verdict of attempted illegal use

of a weapon, a violation of La.R.S. 14:27 and La.R.S. 14:94. Defendant was found

guilty as charged on the remaining counts.

On January 8, 2018, Defendant was adjudicated a fourth felony habitual

offender for the offense of attempted illegal use of a weapon and was sentenced to

life imprisonment without benefit of probation, parole, or suspension of sentence.

Defendant was also sentenced to serve twenty years at hard labor without benefit

of probation, parole, or suspension of sentence and to pay a $1000 fine for

possession of a weapon by a convicted felon and to serve six years at hard labor for

unauthorized entry of an inhabited dwelling. The trial court ordered Defendant’s

sentences be served concurrently.

On July 27, 2018, Defendant filed a “Notice of Appeal” and “Motion for

Late Appeal and Motion for Appeal.” The motion for appeal was granted.

Defendant is now before this court asserting his Sixth and Fourteenth Amendment

rights were violated by the lack of unanimous jury verdicts on two of the three

counts.

FACTS

On May 16, 2015, Defendant was in the street fighting with another man.

During the fight, he retrieved a gun and fired three shots, two into the air and one

into the ground. Defendant then put the gun in his waistband and fled, eventually

getting into an SUV. Police pursued the SUV, and Defendant ultimately exited the

vehicle and ran. Defendant entered the home of Catherine Green to hide from

police. Defendant also forced his way into the home of Julius Harding. In the end,

Defendant exited the home and was arrested. Police never found the gun or the

SUV.

Defendant had previously been convicted of aggravated flight from an

officer. His probation supervision began on November 17, 2005, and his probation

was revoked on January 28, 2008.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find no

errors patent.

ASSIGNMENT OF ERROR

Defendant contends his constitutional rights under the Sixth Amendment, as

applied to the states through the Fourteenth Amendment, were violated by the lack

of unanimous jury verdicts.

At the time Defendant committed the offenses herein, La.Const. art. 1, § 17

provided:

(A) Jury Trial in Criminal Cases. . . . 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. A case in which the punishment may be confinement at hard
labor or confinement without hard labor for more than six months

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shall be tried before a jury of six persons, all of whom must concur to
render a verdict. . . .

(B) Joinder of Felonies; Mode of Trial. Notwithstanding any
provision of law to the contrary, offenses in which punishment is
necessarily confinement at hard labor may be charged in the same
indictment or information with offenses in which the punishment may
be confinement at hard labor; provided however, that the joined
offenses are of the same or similar character or are based on the same
act or transaction or on two or more acts of transactions connected
together or constituting parts of a common scheme or plan; and
provided further, that cases so joined shall be tried by a jury
composed of twelve jurors, ten of whom must concur to render a
verdict.

See also La.Code Crim.P. art. 782; La.Code Crim.P. art. 493; La.Code Crim.P. art.

493.2.1

Possession of a weapon by a convicted felon is punishable by confinement at

hard labor. La.R.S. 14:95.1. Thus, it was triable by a jury of twelve, ten of whom

must concur. Illegal use of a weapon and unauthorized entry of an inhabited

dwelling are punishable by imprisonment with or without hard labor. La.R.S.

14:94; La.R.S. 14:62.3. Thus, they were triable by a jury of six, all whom must

concur in the verdict. Because the latter two offenses were charged in the same

bill of information as possession of a weapon by a convicted felon and arise from

the same act or transaction, or two or more acts of transactions connected together

or constituting parts of a common scheme or plan, they too were triable by a jury

of twelve, ten of whom must concur in the verdict.

By votes of ten to two, Defendant was convicted of attempted illegal use of a

weapon and possession of a weapon by a convicted felon. The jury returned a

1
Louisiana Constitution Article 1, § 17(A) and La.Code Crim.P. art. 782 now provide for
unanimous verdicts for offenses committed on or after January 1, 2019, for which punishment is
necessarily confinement at hard labor. See 2018 La. Acts No. 493, § 2; 2018 La. Acts No. 722, §
1, approved Nov. 6, 2018, eff. Dec. 12, 2018. Louisiana Constitution Article 1, § 17(B) was not
amended.

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unanimous verdict for unauthorized entry of an inhabited dwelling. Thus, the

verdicts were proper under La.Const. art. 1, § 17.

In brief to this court, Defendant notes the Louisiana Supreme Court and the

Courts of the Appeal have rejected the argument that a non-unanimous jury verdict

violates the Fifth, Sixth, and Fourteenth Amendments of the United States

Constitution. “Nevertheless, because the United States Supreme Court and/or the

Louisiana Supreme Court may yet reach a different decision, [he] wishes to

preserve his claim that the non-unanimous verdicts in his case violate his rights

under the Sixth and Fourteenth Amendments to the United States Constitution.”

Defendant further asserts there is “little doubt” that the Supreme Court will

ultimately conclude that non-unanimous verdicts violate defendants’ rights under

the Sixth and Fourteenth Amendments. Defendant then explains why the Supreme

Court will do so. In conclusion, Defendant asks this court to remand the matter

for a new trial on the offenses of attempted illegal use of a weapon and possession

of a weapon by a convicted felon.

The State suggests Defendant did not raise this issue in the trial court prior

to appeal. Therefore, this court should not consider Defendant’s allegation that the

non-unanimous jury verdicts violated his constitutional rights. The Attorney

General also asserts the constitutional challenge is procedurally barred.

In State v. Bazile, 12-2243, p. 8 (La. 5/7/13), 144 So.3d 719, 727, the

supreme court addressed the preservation of constitutional issues for review:

This court has long held the unconstitutionality of a statute
must be specially pleaded and the grounds for the claim
particularized. State v. Hatton, 2007–2377, p. 14 (La.7/1/08); 985
So.2d 709, 719; [State v.] Schoening, 2000–0903, p. 3[ (La.
10/17/00)]; 770 So.2d [762] at 764. In Hatton, the court set out the
challenger’s burden as a three-step analysis. “First, a party must raise
the unconstitutionality in the trial court; second, the

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unconstitutionality of a statute must be specially pleaded; and third,
the grounds outlining the basis of unconstitutionality must be
particularized.” Id., 2007–2377, p. 14; 985 So.2d at 719. In addition,
“the specific plea of unconstitutionality and the grounds therefor must
be raised in a pleading.” Id.; 2007–2377, p. 15; 985 So.2d at 720.

In State v. Williams, 02-898, 02-1030, p. 7 (La. 10/15/02), 830 So.2d 984, 988, the

supreme court further spoke to the issue as follows: “The general rule established

by this Court is that issues not submitted to the trial court for decision will not be

considered by the appellate court on appeal. Constitutional issues are no exception.

Vallo v. Gayle Oil Co., 94–1238 (La.11/30/94), 646 So.2d 859.”

In both State v. Davis, 13-275 (La.App. 3 Cir. 10/23/13), 129 So.3d 554,

writ denied, 14-10 (La. 6/13/14), 140 So.3d 1186, cert. denied, ___ U.S. ___, 135

S.Ct. 678 (2014), and State v. Saltzman, 13-276 (La.App. 3 Cir. 10/23/13), 128

So.3d 1060, writ denied, 14-11 (La. 6/13/14), 140 So.3d 1187, cert. denied, ___

U.S. ___, 135 S.Ct. 678 (2014), the defendants were tried on a charge of second

degree murder and were convicted. On appeal, they argued that La.Code Crim.P.

art. 782’s requirement that ten of twelve jurors must concur to reach a verdict

violated their constitutional right to a unanimous verdict. This court noted the

issue was not raised in the trial court and found the defendants were not entitled to

have the issue reviewed and considered by this court, citing La.Code Crim.P. art.

841. This court went on to state:

Furthermore, the Louisiana Supreme Court has long found this
issue to be constitutional. State v. Edwards, 420 So.2d 663 (La.1982).
Thus, even if this issue had been raised in the lower court, the lower
court would not have been at liberty to ignore the controlling
jurisprudence of superior courts that a non-unanimous jury verdict is
constitutional in non-capital cases.

Davis, 129 So.3d at 601-02.

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In State v. Tillery, 14-429 (La.App. 5 Cir. 12/16/14), 167 So.3d 15, writ

denied, 15-106 (La. 11/6/15), 180 So.3d 306, the defendant challenged the

constitutionality of La.Code Crim.P. art. 782. He asserted the jury verdicts for two

of his convictions should be reversed because non-unanimous verdicts violated the

Sixth and Fourteenth Amendments of the United States Constitution. The record

reflected defendant failed to file a motion to declare La.Const. art. I, § 17(A) or

La.Code Crim.P. art. 782(A) unconstitutional. Additionally, he failed to object to

the jury instruction informing the jury that ten of twelve jurors must concur to

render a verdict. Further, he did not object to the verdicts after they were rendered.

The fifth circuit did not review the issue because it was not sufficiently raised in

the trial court. See also State v. Ross, 12-109 (La.App. 4 Cir. 4/17/13), 115 So.3d

616, writ denied, 13-1079 (La. 11/22/13), 126 So.3d 476; State v. Escobar-Rivera,

11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, writ denied, 12-409 (La. 5/25/12), 90

So.3d 411.

In State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, writ

denied, 09-2102 (La. 4/5/10), 31 So.3d 357, the defendant argued for the first time

on appeal that the guilty verdict was invalid because the non-unanimous verdict

violated his right to trial by jury under the United States and Louisiana

Constitutions. He specifically asserted that Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348 (2000), “overruled by implication” the holding in Apodaca, 406

U.S. 404, 92 S.Ct. 162 (1972). The fifth circuit addressed the issue, stating:

In State v. Young, 04–1318, pp. 13–14 (La.App. 5 Cir. 4/26/05),
902 So.2d 461, 470 and State v. Fasola, 04–902, p. 18 (La.App. 5 Cir.
3/29/05), 901 So.2d 533, 544, writ denied, 05–1069 (La.12/9/05), 916
So.2d 1055, this court declined to consider the defendants’
constitutional arguments that the conviction based on a non-
unanimous verdict was invalid absent an objection raised in the trial

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court. Both cases relied on the Louisiana Supreme Court case of State
v. Williams, 02–1030, p. 7 (La.10/15/02), 830 So.2d 984, 988.

In Williams, the Court pretermitted the defendant’s
constitutional challenge as he failed to first raise the issue in the trial
court. Williams recognized that the general rule established by that
Court was that issues not submitted to the trial court for decision
would not be considered by the appellate court on appeal. It held that
Constitutional issues were no exception. Id.

On the other hand, this court, while recognizing the general rule
expressed in Williams, has nonetheless addressed, out of an
abundance of caution, a constitutional issue regarding the habitual
offender statute raised for the first time on appeal. State v. Myles, 04–
434, p. 9 (La.App. 5 Cir. 10/12/04), 887 So.2d 118, 12[4].

Thus, there is uncertainty in our jurisprudence as to whether to
pretermit constitutional issues that were raised for the first time on
appeal. That uncertainty is also present in the jurisprudence from the
Louisiana Supreme Court.

As early as 1978, the Louisiana Supreme Court recognized the
uncertainty in the jurisprudence regarding whether to address a
constitutional issue (that is similar to the instant case) on the merits
when the issue was raised for the first time by brief and argument on
appeal. State v. Wrestle, Inc., 360 So.2d 831, 837, n. 9, (La.1978),
overruled in part on other grounds, Burch v. Louisiana, 441 U.S. 130,
99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). In Wrestle, the essential basis
for the defendants’ contention was their attack on the constitutionality,
under the federal constitution, of the provisions of state law which at
that time permitted a non-unanimous verdict in six-person juries. Id.
The Court decided to address the merits of the claim. It made no
attempt to reconcile conflicting principles enunciated by the
jurisprudence. It recognized “the uncertainty of the jurisprudence,”
but “because the constitutional error (if any) [was] based on a United
States Supreme Court decision decided subsequent to the present
conviction and [was] revealed by the minutes,” the Court deemed it
“appropriate . . . to consider the alleged constitutional error first raised
in [that] court[.]” Id.

More recently, the Louisiana Supreme Court reaffirmed the
longstanding jurisprudential rule of law in Louisiana that litigants
must raise constitutional attacks in the trial court, not the appellate
courts, and the constitutional challenge must be specially pleaded and
the grounds for the claim particularized. Unwired Telecom Corp. v.
Parish of Calcasieu, 03–0732 (La.1/19/05), 903 So.2d 392, 399, n. 5
(on rehearing). In doing so, however, the Court noted the following
exceptions to the general rule: (1) when a statute attempts to limit the
constitutional power of the courts to review cases; (2) when the statute

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has been declared unconstitutional in another case; (3) when the
statute applicable to the specific case becomes effective after the
appeal is lodged in the higher court; or (4) when an act which is the
basis of a criminal charge is patently unconstitutional on its face and
the issue is made to appear as an error patent on the face of the record.
Id. (citation omitted). See also: Mallard Bay Drilling, Inc. v. Kennedy,
04–1089, p. 9 (La.6/29/05), 914 So.2d 533, 541. Therefore, the
uncertainty in this area arises as a result of jurisprudential exceptions
to the general rule.

In the present case, the thrust of the defendant’s argument is
that the codal article and the Constitutional article have been
impliedly declared unconstitutional by Apprendi. As such, the
defendant has arguably alleged an exception to the general rule
pretermitting review on the merits of his constitutional claim.
Cognizant of this exception, the First Circuit reviewed the merits of a
claim not presented below on the basis that “[s]ince the statute at issue
in this case has since been declared unconstitutional in another case,
the plaintiff may raise the unconstitutionality of the statute for the first
time on appeal.” Spooner v. East Baton Rouge Parish Sheriff Dept.,
01–2663, p. 3 (La.App. 1 Cir. 11/8/02), 835 So.2d 709, 710.

In Young and Fasola, unlike the present case, the defendants
evidently failed to argue that Apprendi overruled the pertinent
constitutional and codal provisions. Thus, Young and Fasola are
distinguishable.

Therefore, under the authority of the Louisiana Supreme Court
jurisprudence that recognizes the exception to the general rule
pretermitting review, we must consider whether Apprendi has
overruled Louisiana’s codal and constitutional authority validating a
non-unanimous jury verdict for crimes necessarily punishable by hard
labor.

Smith, 20 So.3d at 505-06 (first alteration ours).

The argument set forth in Smith was also made by the defendant in State v.

Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478

(La. 4/19/13), 111 So.3d 1030. Therein, the state noted the defendant’s failure to

object to the “express terms of LSA–C.Cr.P. art. 782(A) at trial” and asserted the

defendant “waived his right to contest the constitutionality of his non-unanimous

jury verdict on appeal.” Id. at 613. The fifth circuit noted the defendant’s failure

to file a motion to declare the non-unanimous jury verdict scheme unconstitutional

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or object to the jury instructions or the verdict. The court cited La.Code Crim.P.

art. 841 and stated: “Having failed to raise this alleged error in the trial court,

defendant is not entitled to have this issue reviewed and considered by this Court.”

Id. at 614. The fifth circuit proceeded to conclude that if the error was properly

before the court, it lacked merit. The court did not discuss Smith or the concerns

set forth therein.

Defendant did not present his unconstitutional verdict claim to the trial

court. Moreover, the gist of his argument to this court is the Supreme Court will

eventually overrule Apodaca. Based on the cases cited herein and Defendant’s

failure to raise his claim in the trial court, Defendant waived review of the issues

presented in this assignment of error.

CONCLUSION

Defendant’s convictions for attempted illegal use of a weapon and

possession of a weapon by a convicted felon are affirmed.

AFFIRMED.

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