State v. Thornton

309 So.3d 366

STATE of Louisiana

v.Christopher Deandre THORNTON

2019 KA 1029

Court of Appeal of Louisiana, First Circuit.

Decision Rendered: JULY 23, 2020

Bertha M. Hillman, Covington, Louisiana, Attorney for Defendant/Appellant, Christopher Deandre Thornton

Christopher D. Thornton Jackson, Louisiana, Pro Se

Hillar C. Moore III, District Attorney, and Dale R. Lee, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for Appellee, State of Louisiana

BEFORE: MCDONALD, THERIOT, and CHUTZ, JJ.

MCDONALD, J.

The East Baton Rouge Parish grand jury indicted defendant, Christopher Thornton, with three counts of attempted second degree murder (counts two, three, and four), violations of La. R.S. 14:30.1 and La. R.S. 14:27.¹ He pled not guilty. After a trial, a jury found defendant guilty as charged on count two but found him guilty of the lesser-included offense of aggravated battery on counts three and four. On count two, the trial court sentenced defendant to 30 years imprisonment at hard labor, to be served without benefit of probation, parole, or suspension of sentence; on counts three and four, the trial court sentenced him to two sentences of five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the first year, all sentences to run concurrently. Defendant filed two motions for new trial, one on January 17, 2019, and another on February 20, 2019. The trial court sentenced defendant on February 28, 2019 and denied his motions for new trial on March 19, 2019.² After appeal, appellate counsel filed an Anders brief asserting no assignments of error. Defendant filed a pro se brief asserting four assignments of error.

For the following reasons, we affirm defendant's conviction and sentence on count two, set aside his convictions and sentences on counts three and four, and remand for a new trial on these counts.

STATEMENT OF FACTS

On the afternoon of December 18, 2014, Darren Martin was driving past a grocery store at the corner of Gus Young Avenue and North 44th Street in Baton Rouge, Louisiana, with Cornelius Landry and Destinie Coston riding as passengers in the car. Mr. Martin slowed down near where defendant was standing after defendant made eye contact with him or flagged him down. Mr. Martin did not know defendant prior to that day. Once Mr. Martin stopped, he opened the car door and spoke to defendant. Defendant then shot a gun at the car at least 17 times. Mr. Martin immediately drove away with defendant still firing. Due to Mr. Martin's injuries, Ms. Coston took over driving to go to a nearby emergency room. Mr. Martin was treated for life-threatening wounds to his leg and neck, and Mr. Landry was treated for a shot to his hand. Ms. Coston was not injured.

Alerted to the gunfire by the "ShotSpotter" system, police were dispatched to the scene in response. Following an investigation, the State identified, arrested, and charged defendant with three counts of attempted second degree murder.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO: NON-UNANIMOUS JURY VERDICT

In his second pro se assignment of error, defendant contends that his conviction by a non-unanimous jury verdict, as allowed under La. C.Cr.P. art. 782A, was unconstitutional. Defendant is formally making this argument for the first time on appeal. His trial counsel made an oral objection to the non-unanimous jury verdict system in Louisiana before voir dire began but did not follow up with a written motion. Further, defendant did not raise the issue in his motions for new trial.

It is well established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling, Inc. v. Kennedy, 04-1089 (La. 6/29/05), 914 So.2d 533, 541. An exception to these general principles exists when the statute applicable to the specific case has been declared unconstitutional in another case. Spooner v. EBR Parish Sheriff Dep't, 01-2663 (La. App. 1 Cir. 11/8/02), 835 So.2d 709, 711 ; see State v. Antonio Celestine, 19-42 (La. App. 3 Cir. 10/2/19), 280 So.3d 1179, 1184.

In the recent decision of Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020), the United States Supreme Court overruled Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), and held that the United States Constitution Sixth Amendment right to a jury trial, incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Thus, here, defendant may properly raise the constitutionality of his convictions on counts three and four in the appeal before us.³ Moreover, the Ramos Court further indicated that its ruling may require retrial of those defendants convicted of felonies by non-unanimous verdicts whose cases are still pending on direct appeal. Ramos, 140 S.Ct. at 1406.

Herein, defendant was convicted by a ten-to-two verdict on counts three and four. Accordingly, defendant's convictions and sentences on those counts are set aside; however, as discussed in our review of defendant's third assignment of error, we remand the case for a new trial of counts three and four only. Moreover, because defendant was convicted by a unanimous verdict on count two, we find it prudent to consider the merits of his remaining assignments of error.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE: DEFECTIVE JURY VENIRE

In his first pro se assignment of error, defendant argues he was denied due process because the jury venire in East Baton Rouge Parish was defectively constituted. Citing the Louisiana Supreme Court's recent decision in State v. Cannon, 19-590 (La. 4/18/19), 267 So.3d 585, 585-86 (per curiam ), defendant argues his jury venire was made deficient by the same process as existed in Cannon, and was not a fair cross-section of the community, where those born after June 2, 1993, were excluded from the jury pool. Consequently, defendant asks this court to vacate his conviction and remand for a new trial before a jury selected from a new, properly constituted venire.

In Cannon, 267 So.3d at 585-86, the Louisiana Supreme Court held: Defendant has shown that, under the system employed in East Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on the jury, were never given an opportunity to serve, because their names were excluded from the general venire as a result of a significant error in the process by which the general venire was composed. That exclusion resulted in a general venire that was improperly constituted under Code of Criminal Procedure articles 401 [,] et seq. and Louisiana Constitutional Articles I, § 3 ("No person shall be denied the equal protection of the laws.") and V, § 33 ("A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled."). Accordingly, we grant defendant's application to reverse the rulings of the courts below, grant defendant's motion to quash the general venire, and remand to the district court for further proceedings so that a petit jury can be chosen from a general venire that is selected according to law. See State v. Jacko, 444 So.2d 1185 (La. 1984) ; State v. Procell, 332 So.2d 814 (La. 1976).

It is undisputed that, in this case, defendant's jury was assembled from the same venire as the Louisiana Supreme Court found defective in Cannon. However, in State v. Smith, 17-1333 (La. App. 1 Cir. 2/21/18), 2018 WL 1007350, *4, this court noted:

The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. C.Cr.P. art. 532(9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C.Cr.P. arts. 521, 532(9), and 535(C) ; see also State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 39, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire's composition. Any grounds for that potential motion were waived. See La. C.Cr.P. art. 535(D).

Here, defendant did not file such a pretrial motion to quash and did not raise the issue before voir dire began. In fact, defendant did not raise the issue until the instant appeal. Generally, a reviewing court refrains from addressing an issue not raised in the trial court. See La. C.Cr.P. art. 841 ; State v. Thibodeaux, 16-0994 (La. 10/27/17), 227 So.3d 811, 812 (per curiam ). We recognize, as defendant argues in his brief, that had he known of the defect, he likely would have properly asserted his objection to the jury venire. Nevertheless, such did not occur, and hence, defendant did not properly preserve this claim for appellate review. Further, we find the Cannon decision itself does not provide grounds to disregard defendant's failure to follow the proper procedure for raising a jury venire challenge. see Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (holding that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final[.]" (Emphasis added.) We do not find that the Louisiana Supreme Court in Cannon pronounced such a "new rule."⁴ Consequently, this claim is not properly before the court and is denied as waived. see Smith, 2018 WL 1007350 at *4.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE: DOUBLE JEOPARDY

In his third pro se assignment of error, defendant claims he was improperly convicted of both attempted second degree murder and aggravated battery for actions arising from the same course of...