State of Louisiana v. Sheron Lamar Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-616

STATE OF LOUISIANA

VERSUS

SHERON LAMAR LEWIS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 1765-22
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Sheron Lamar Lewis

Stephen C. Dwight
District Attorney
David S. Pipes
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

Defendant appeals his convictions and sentences, arguing that the trial court

erred in denying his Motion for New Trial that challenged the selection of the jury

venire. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2022, a Calcasieu Parish grand jury filed a bill of indictment

charging Defendant, Sheron Lamar Lewis, with the first degree murder of his wife,

Kenesha Camille Spencer, in violation of La.R.S. 14:30; the attempted first degree

murder of his stepdaughter, K.P., in violation of La.R.S. 14:27 and La.R.S. 14:30;

and the possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. 1

Defendant subsequently entered a plea of not guilty. On January 27, 2023, following

the presentation of evidence and argument, a jury unanimously found Defendant

guilty of all charges.

On March 17, 2023, Defendant filed a Motion for New Trial, challenging the

composition of the jury venire and specifically alleging that the jury summonses

were defective because they did not implement the 2021 amendment to La.Code

Crim.P. art. 401(A)(5), which allowed convicted felons to serve on juries provided

that they “not be under indictment, incarcerated under an order of imprisonment, or

on probation or parole for a felony offense within the five-year period immediately

preceding the person’s jury service.” He asserted that a new trial was mandated by

La.Code Crim.P. art. 851(B)(4) as this error was not, and could not have been with

reasonable diligence, discovered prior to the verdict. Following a hearing on March

21, 2023, the trial court denied Defendant’s Motion for New Trial.

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Initials of the minor victim are being used pursuant to La.R.S. 46:1844(W)(1)(a).

On March 22, 2023, the trial court sentenced Defendant on the count of first

degree murder to life imprisonment at hard labor without the benefit of probation,

parole, or suspension of sentence. As to the count of attempted first degree murder,

the trial court sentenced Defendant to fifty years at hard labor without the benefit of

probation, parole, or suspension of sentence, to run consecutively with the sentence

for first degree murder. As to the count of possession of a firearm by a convicted

felon, the trial court sentenced Defendant to fifteen years at hard labor without the

benefit of probation, parole, or suspension of sentence, to run concurrently with the

sentences for first degree and attempted first degree murder. Defendant thereafter

filed a Motion to Reconsider Sentence, which the trial court denied the same day.

Defendant, through counsel, now appeals. In his sole assignment of error, he

contends that the trial court erred in denying his Motion for New Trial. For the

reasons discussed below, we hereby affirm.

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 note that with

respect to Defendant’s sentence for possession of a firearm by a convicted felon, the

trial court failed to impose a fine required by La.R.S. 14:95.1. However, because

this issue was not raised, we will not correct the error on appeal. See, State v. Brown,

19-771 (La. 10/14/20), 302 So.3d 1109.

ANALYSIS:.

The grounds for a new trial in a criminal proceeding are set forth by La.Code

Crim.P. art. 851, which states, in pertinent part, as follows:

A. The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is shown to have

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been the case the motion shall be denied, no matter upon what
allegations it is grounded.

B. The court, on motion of the defendant, shall grant a new trial
whenever any of the following occur:

....

(4) The defendant has discovered, since the verdict or judgment
of guilty, a prejudicial error or defect in the proceedings that,
notwithstanding the exercise of reasonable diligence by the defendant,
was not discovered before the verdict or judgment.

The standard of reviewing a trial court’s ruling on a motion for new trial is as

follows:

The denial of a motion for a new trial is not subject
to appellate or supervisory review except for error of law.
La.Code Crim.P. art. 858. The decision on a motion for
new trial rests within the sound discretion of the trial
judge. We will not disturb this ruling on appeal absent a
clear showing of abuse. The merits of such a motion must
be viewed with extreme caution in the interest of
preserving the finality of judgments. Generally, a motion
for new trial will be denied unless injustice has been done.
See La.Code Crim.P. art. 851; State v. Home [Horne ],
28,327 (La.App.2d Cir. 8/21/96), 679 So.2d 953, 956, writ
denied, 96–2345 (La.2/21/97), 688 So.2d 521.

State v. Austin, 11–2150, p. 7 (La.App. 1 Cir. 6/8/12), 2012 WL
2061531 (unpublished opinion), writ denied, 12–1595 (La.2/8/13), 108
So.3d 77.

State v. Pontiff, 14-1049, pp. 16−17 (La.App. 3 Cir. 5/6/15), 166 So.3d 1120, 1132

(alteration in original), writ denied, 15-1107 (La. 10/28/16), 209 So.3d 94.

On appeal, Defendant notes that 2021 La. Acts No. 121, effective August 1,

2021, amended La.Code Crim.P. art. 401(A)(5) so as to allow convicted felons to

serve on juries provided that they “not be under indictment, incarcerated under an

order of imprisonment, or on probation or parole for a felony offense within the five-

year period immediately preceding the person’s jury service.” Prior thereto,

convicted felons were barred from serving on a jury, absent a gubernatorial pardon.

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Defendant’s basis for new trial was that the Calcasieu Parish Clerk of Court’s jury

summonses failed to implement Act 121; therefore, according to Defendant, the jury

was improperly drawn, and Defendant’s constitutional right to an impartial trial was

violated.

While Defendant acknowledges that a motion to quash is the correct

procedural vehicle by which to allege an improper drawing of a petit jury, and that

a motion to quash was not filed, Defendant argues that he should, nevertheless, be

entitled to appellate review because his due process rights were violated.

Specifically, Defendant suggests that the clerk’s systemic exclusion of convicted

felons who are otherwise allowed by La.Code Crim.P. art. 401(A)(5) to serve as

jurors infringed upon his Sixth Amendment right to a trial by an impartial jury, and

specifically was in violation of the requirement that a jury must be from a

representative cross-section of the community.

Defendant further argues that a new trial was proper in accordance with

La.Code Crim.P. art. 851(B)(4) because evidence concerning the defective

summonses was new, material, and not discovered before or during his trial.

In opposition, the State argues that Defendant’s challenge to his jury venire

was untimely because he failed to file a motion to quash before trial, and, therefore,

Defendant waived his objection. In addition, the State contends that a new trial was

not warranted by La.Code Crim.P. art. 851(B)(4) because Defendant’s trial counsel

was on notice of issues concerning the implementation of the 2021 amendment to

La.Code Crim.P. art. 401(A)(5) by no later than December 2021, as evidenced by an

email sent by a supervising attorney with the public defender’s office; yet, his

counsel did not raise the alleged issue until after trial. In addition, the State notes

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that the record contains evidence indicating that defense counsel’s office had actual

notice of the jury summonses issued in connection with this case prior to trial.

In addition, the State argues that even if Defendant’s motion was timely, it

was legally deficient because Defendant failed to set forth a prima facie violation of

the Sixth Amendment’s cross-section requirement. Therefore, according to the

State, Defendant’s motion was properly denied.

In State v. Brown, 16-998, p. 66 (La. 1/28/22), 347 So.3d 745, 798, cert.

denied, ––– U.S. ––––, 143 S.Ct. 886 (2023) (italics added), the Louisiana Supreme

Court stated, “This court has long recognized the procedural device for alleging that

‘the petite jury venire was improperly drawn, selected or constituted’ is a motion to

quash. La. C.Cr.P. art. 532(9); State v. Edwards, 406 So.2d 1331, 1347 (La. 1981);

State v. Collins, 359 So.2d 174, 177 (La. 1978).” The motion must be in writing and

filed before trial. See La.Code Crim.P. arts. 532(9), 536, and 535.

A Defendant who does not file a motion to quash on the grounds that the jury

venire was improperly drawn, selected, or constituted in accordance with the

timeliness and form requirements set forth in the Louisiana Code of Criminal

Procedure waives his objection. Brown, 347 So.3d 745; La.Code Crim.P. art.

535(D).

Defendant in the instant case did not raise issues concerning the drawing of

the jury venire prior to trial. Therefore, we find that Defendant waived this issue.

In addition, the amendment to La.Code Crim.P. art. 401(A)(5), which Defendant

contends was not properly considered in connection with the selection of the jury,

took effect prior to Defendant’s indictment and well over a year prior to trial.

Defendant’s counsel should have been aware of this amendment prior to Defendant’s

trial, and the record indicates that he was on notice regarding the implementation of

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the amendment prior to trial and his office had actual notice of the jury summonses

used in connection with Defendant’s trial prior to trial; therefore, we find no abuse

of discretion on the part of the trial court in denying Defendant’s motion for new

trial.

DECREE

For the reasons set forth herein, Defendant’s convictions and sentences are

hereby affirmed.

AFFIRMED.

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