State v. Neveaux

377 So.3d 742

23-466 (La.App. 5 Cir. 11/8/23)

STATE of Louisiana

v.Jerman NEVEAUX

NO. 23-K-466

Court of Appeal of Louisiana, Fifth Circuit.

November 8, 2023

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 16-4029, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, LA, Thomas J. Butler, Darren A. Allemand

COUNSEL FOR DEFENDANT/RELATOR, JERMAN NEVEAUX, Richard J. Bourke, Elliott T. Brown

COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Grant L. Willis

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

CHEHARDY, C J.

₁Defendant, Jerman Neveaux, seeks supervisory review of the trial court’s ruling that denied his Motion to Declare La. C.C.P. art. 798(2)(A) & (B) Unconstitutional or to Bar the State from Challenging Jurors with Conscientious Scruples Against the Death Penalty Arising from Religious Beliefs. For the reasons that follow, the writ is denied.

PROCEDURAL HISTORY

On October 13, 2016, defendant, Jerman Neveaux, was indicted for the first degree murder of Jefferson Parish Sheriff’s Office (JPSO) Detective David Michel in violation of La. R.S. 14:30. The State is seeking the death penalty.

On or about July 10, 2023, defendant filed a Motion to Declare La. C.C.P. art. 798(2)(A) & (B) Unconstitutional or to Bar the State from Challenging Jurors with Conscientious Scruples Against the Death Penalty Arising from Religious Beliefs. On July 24, 2023, the State filed State’s Omnibus Response to Defendant’s Motions Relative to Death Penalty Procedures and Substance, to which defendant filed a reply. Following a hearing, the trial court denied defendant’s motion on August 23, 2013. Defendant timely filed the instant writ application on September 22, 2023.

DISCUSSION

Defendant’s Argument in Support of His Motion

In his motion, defendant requested that the trial court declare La. C.Cr.P. art. 798(2)(a) and (b) unconstitutional on the basis that it substantially burdens the free exercise of religion. He argued that the Article grants the district attorney’s office the discretion to challenge a juror for cause because of his or her conscientious scruples against the death penalty, even where those scruples derive from the exercise of sincerely held religious beliefs. Further, defendant argued that exclusion from public service as a juror on the most important criminal cases, and the cases in which citizens are asked to express the moral conscience of the ₂community, burdens free exercise for those whose religious beliefs would require them to forego voting for the death penalty. Additionally, defendant alleged that because La. C.Cr.P. art. 798(2)(a) and (b) is a discretionary clause, it is not a law of general application, and, therefore, the burden falls on the State under the strict scrutiny test to demonstrate a compelling State interest in refusing to exempt jurors from cause challenges where their conscientious scruples against the death penalty arise from their religious beliefs.

In addition, defendant argued the State cannot show a compelling State interest in failing to exempt from removal for cause those jurors, whose exercise of religious beliefs would substantially impair their ability to vote for death, where death is never a required outcome and where those jurors play a legitimate role in expressing the moral conscience of the community. He further argued that even if the State has an interest in ensuring the possibility of a death verdict in a particular case, the exclusion of religious jurors from capital trials is not narrowly tailored to satisfy that interest. Defendant requested that the trial court hold an evidentiary hearing in order to present evidence showing that being required to set aside religious beliefs opposed to the death penalty burdens religion. He asserted that in its recent decision in Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. 522, 141 S.Ct. 1868, 210 L.Ed.2d 137 (2021), the United States Supreme Court explained the operation of the Free Exercise Clause. Lastly, in his writ application, defendant avers that the claim he presents is res nova and must be considered under the guidance of Fulton.

The State’s Response

In response, the State urged that defendant’s argument essentially suggests that La. C.Cr.P. art. 798(2)(a) and (b) unconstitutionally results in a more death-prone jury, an argument which the State contends the Louisiana Supreme Court rejected in ₃State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, cert. denied,568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). Further, the State argued defendant failed to show any constitutional defect in La. C.Cr.P. art. 798(2)(a) and (b), or that he is entitled to bar it from striking jurors with conscientious scruples against the death penalty. Moreover, the State argued that if defendant feels during voir dire that a challenge by the State is unfounded in law, he may make appropriate good faith and non-frivolous objections at that time, upon which the trial court will thereafter rule. Consequently, the State contended that, at this juncture, there is nothing to litigate on this point.

The State further argued that, by couching his claim in terms of religious freedom, defendant seeks to evade the fact that the constitutionality of La. C.Cr.P. art. 798(2)(a) and (b) has already been upheld. Specifically, the State noted that in State v. Spell, 21-876 (La. 5/13/22), 339 So.3d 1125, our Supreme Court held that regardless of its burden on religious exercise, a law that is neutral and generally applicable does not violate the Free Exercise Clause and is not subject to strict scrutiny. The State argued that, despite defendant’s contention to the contrary, La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable given that it does not target any particular religion and applies to anyone who falls under its ambit, regardless from where that person’s beliefs stem. Further, the State asserted the analysis does not change simply because a prosecutor must raise a challenge to that particular individual, since the State does not have in place a system of individual exemptions from the law nor does the statute grant exemptions.

Moreover, the State argued that La. C.Cr.P. art. 798(2)(a) and (b) does not treat any comparable secular activity more favorably than religious exercise, given that an atheistic individual who is morally opposed to the death penalty is subject to the same challenge as a religious individual who is morally opposed to the death penalty.

The State asserted that in State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d 590, cett, denied, 578 U.S. 1018, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016), the ₄Louisiana Supreme Court rejected a challenge to La. C.Cr.P. art. 798(2)(a) and (b) based on a free exercise argument. According to the State, since Tucker, there has been no further jurisprudence that would justify a changed result, and that La. C.Cr.P. art. 798(2)(a) and (b) would survive any level of scrutiny. For these reasons, and because defendant’s free exercise challenge to La. C.Cr.P. art. 798(2)(a) and (b) has previously been rejected by controlling jurisprudence, the State argued that an evidentiary hearing on this issue would be an exercise in futility and a waste of the court’s time and resources.

The August 23, 2023 Hearing on Defendant’s Motion

At the hearing on defendant’s motion, defense counsel argued that, under Fulton, La. C.Cr.P. art. 798(2)(a) and (b) is not a law of general applicability. In response, the State argued that Fulton is a case involving foster care and, thus, is not applicable to a criminal case. Further, the State argued that La. C.Cr.P. art. 798(2)(a) and (b) is a law of general applicability, because someone may be unable to impose the death penalty, not only on the basis of religion, but for some other reason, and that Fulton did not change anything. Moreover, the State averred that it is a strained fit to call it an exemption when a prosecutor fails to make an appropriate cause challenge, because if a prosecutor allows someone to sit on a capital jury who does not believe in the death penalty, this is actually a windfall to the defense, not an exemption.

At the close of the hearing, the trial court denied defendant’s motion to bar the State from challenging jurors with conscientious scruples against the death penalty arising from religious beliefs. The trial court ruled that La. C.Cr.P. art. 798 is a law of general applicability and not unconstitutional. Defendant filed the instant writ application seeking this Court’s supervisory review of the trial court’s ruling.

Defendant’s Writ Application

[1] ₅In his application, defendant argues the trial court erred in its determination that La. C.Cr.P. art. 798(2)(a) and (b) is a law of general applicability, and erred in denying his motion to declare the Article unconstitutional as burdening the free exercise of religion. The determination of the constitutionality of a statute presents a question of law subject to de novo review. State v. Webb, 13-1681 (La. 5/7/14), 144 So.3d 971, 975.

Louisiana Code of Criminal Procedure article 798, entitled "Causes for challenge by the state," provides, in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:

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(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it known:

(a) That he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him; (b) That his attitude toward the death penalty would prevent or substantially impair him from making an impartial decision as a juror in accordance with his...