State v. Frinks

304 So.3d 561

STATE of Louisiana

v.Edwin Paul FRINKS

18-899

Court of Appeal of Louisiana, Third Circuit.

July 29, 2020

Phillip Terrell, District Attorney, Ninth Judicial District Court, Cheryl A. Carter, Assistant District Attorney, P. O. Drawer 7358, Alexandria, LA 71306, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Annette Fuller Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Edwin Paul Frinks

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.

SAUNDERS, Judge.

On October 24, 2017, Defendant, Edwin Paul Frinks, was charged by bill of information with the attempted second-degree murder of Travis Darnell James, Jr., in violation of La.R.S. 14:27 and 14:30.1. On June 20, 2018, an 11-1 jury found Defendant guilty of the lesser included offense of attempted manslaughter, in violation of La.R.S. 14:27 and 14:31. Defendant raised five assignments of error through trial counsel: (1) that there was insufficient evidence to support Defendant's conviction, (2) that the State failed to prove the homicide was not justifiable, (3) the trial court gave an erroneous jury instruction regarding intent, (4) the trial court erred by allowing two witnesses to discuss statements made to them by the victim, and (5) that his sentence was excessive. In a supplemental pro se brief, Defendant raised two assignments of error alleging that his conviction was unconstitutional because he was convicted by a less than unanimous jury.

On June 12, 2019, this court affirmed Defendant's conviction and sentence. See State v. Frinks , 18-899 (La.App. 3 Cir. 6/12/19), 274 So.3d 635. Regarding Defendant's assertion that his conviction was unconstitutional due to the 11-1 verdict, this court held:

At the time of Defendant's crime, La.Code Crim.P. art. 782(A) stated that cases "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 contends that, under Hunter v. Underwood , 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), La.Code Crim.P. art. 782 was unconstitutional and "violated equal protection because it had the effect of disenfranchising a disproportionate percentage of blacks" and because the law arose out of a clearly racially charged constitutional convention. No Louisiana appellate court has ever accepted this argument; furthermore, non-unanimous jury verdicts were held constitutional by the Supreme Court in Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Additionally, in affirming the constitutionality of La.Code Crim.P. art. 782, the supreme court specifically stated:

We note that defendant's last argument—that the use of non-unanimous verdicts have an insidious racial component, allow minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed-was also argued in Apodaca With regard to this assignment of error, a majority, rather than a plurality, of the Court determined that the argument was without merit.

State v. Bertrand , 08-2215, 08-2311, pp. 7-8 (La. 3/17/09), 6 So.3d 738, 743.

In light of Apodaca and Bertrand , Defendant's argument regarding the

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