Opinion
NO. 2018 KA 0023
06-01-2018
STATE OF LOUISIANA v. BRENT LEBOUEF
Bruce G. Whittaker New Orleans, Louisiana Counsel for Defendant/Appellant Brent Lebouef Kristine Russell District Attorney Joseph S. Soignet Assistant District Attorney Thibodaux, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana
Case No. 545088 The Honorable Christopher J. Boudreaux, Judge Presiding Bruce G. Whittaker
New Orleans, Louisiana Counsel for Defendant/Appellant
Brent Lebouef Kristine Russell
District Attorney
Joseph S. Soignet
Assistant District Attorney
Thibodaux, Louisiana Counsel for Appellee
State of Louisiana BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. THERIOT, J.
The defendant, Brent Lebouef, was charged by amended bill of information with armed robbery, a violation of La. R.S. 14:64, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The defendant was sentenced to sixty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, assigning error to the trial court's denial of his motion for new trial and to the non-unanimous jury verdict. For the following reasons, we affirm the conviction and sentence.
The defendant was re-arraigned after the bill of information was amended as to the victim's name and the type of dangerous weapon used in the commission of the offense.
STATEMENT OF FACTS
On May 13, 2015, at 2:38 a.m., Deputy Jose Munoz of the Lafourche Parish Sheriff's Office (LPSO) responded to a complaint regarding an incident that took place at a residence located at 168 East 150th Street in Galliano, Louisiana. Upon Deputy Munoz's arrival, Mr. James Guidry and Mrs. Mona Lisa Guidry (the victims) were standing near their doorway. Deputy Munoz performed a security sweep of the residence before other detectives arrived on the scene and began interviewing the victims. The victims had visible red marks around their wrists. Mr. Guidry indicated that they had just been robbed, noting that an unknown amount of cash, weapons, and his 2004 Chevy Trailblazer had been taken. Deputies in the parish were advised to be on the lookout (BOLO) for the victim's vehicle.
The perpetrators entered the residence while the victims were in their bedroom sleeping. The victims woke up as their bedroom door was pushed open, and two perpetrators entered with bright flashlights, demanding money. As the flashlights were being shone in their faces and the room was otherwise dark, the victims did not have a good view of the perpetrators, who appeared to be wearing masks. After instructing the victims to put their pillows over their heads, the perpetrators turned on the bedroom light. The perpetrators used earphone and/or charger wires, a purse strap, and a stocking to tie up the victims' arms. The perpetrator who tied up Mr. Guidry was holding a handgun at the time. The bat that was being held by one of the perpetrators was in Mrs. Guidry's line of view, as he instructed her to put her head down. The perpetrator then told Mrs. Guidry that he would hit her with the bat if she did not do as she was told. Mr. Guidry pleaded with the perpetrator, asking him not to hit his wife. In response to their demands, Mr. Guidry informed the perpetrators that his cash was in the pocket of his pair of pants that were hanging in the closet. Mrs. Guidry then heard the perpetrators rummaging through the room, including the clothing closet. One of the perpetrators began rummaging through another closet where the victims stored firearms, as Mrs. Guidry told the other perpetrator that she did not have any jewelry upon his inquiry. The perpetrators instructed the victims to wait thirty minutes before moving, and turned their bedroom television on at a high volume. Shortly after one of the perpetrators gave the victims orange juice to drink, they realized that the perpetrators had left, untied themselves, and contacted the police.
Assistant Chief of Police Charles Finley, of the Golden Meadow Police Department, received notice of the LPSO BOLO bulletin. While Chief Finley was conducting a traffic stop, a concerned citizen informed him of an abandoned vehicle on Louviere Lane in Golden Meadow that matched the BOLO description. Chief Finley located the vehicle, and contacted the National Crime Information Center to verify that it was the vehicle being sought by LPSO before contacting LPSO. In the following month of June, while investigating an unrelated disturbance in Terrebonne Parish, Detective Donald Bourg of the Terrebonne Parish Sheriff's Office arrested Donald Dardar and Robert Authement. During his police interview, Authement provided information regarding the instant incident, and Detective Bourg shared the information with LPSO.
Thereafter, on June 8, 2015, LPSO Detective Terry Poiencot and Detective Sergeant Baron Cortopassi went to Terrebonne Parish, were briefed by Detective Bourg, and interviewed Authement. Authement implicated Donald Dardar, Santos Dardar, and Mandy Dardar in the armed robbery at the Guidry residence. The police then contacted Mandy Dardar, who voluntarily came to Detective Bourg's office for an interview, and she provided additional information regarding the Guidry incident, but minimized her own involvement. After interviewing Mandy Dardar, the officers obtained an arrest warrant for Santos Dardar, who during a post-arrest interview confessed to the instant robbery, identifying Donald Darder as the driver and the defendant as the other perpetrator who entered the Guidry home with him. Santos Darder specifically indicated that he was armed with a bat while the defendant was armed with a pistol, and further noted that he had given the victims orange juice to drink, a previously unreleased detail. He confirmed that they stole a large amount of cash and several firearms during the robbery. Upon his arrest, Donald Darder admitted to giving Santos Darder and the defendant a ride and to receiving a portion of the money after the incident.
Santos Dardar and Donald Dardar testified at trial consistent with the pretrial statements. The defendant did not testify at trial.
MOTION FOR NEW TRIAL
In assignment of error number one, the defendant argues that the trial court abused its discretion in denying his motion for new trial based on juror misconduct. Specifically, the defendant claims that the jury began to deliberate and discuss the facts of the case before being instructed to do so, causing prejudice to the defendant. The defendant argues that the trial court hastily, without a hearing, rejected his legitimate claim of a troubling breach of juror conduct, further contending that he was deprived of a fundamental constitutional right. Claiming that the alternate juror admitted to having engaged in discussion with sworn jurors prior to deliberation regarding the guilt or innocence of the defendant, the defendant argues that there was a likelihood of an attempt to influence the verdict. As an alternative to remanding for a new trial, the defendant contends that the case should be remanded for a hearing on the motion for new trial.
According to La. Code Crim. P. art. 851, "[t]he motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded." The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. State v. Home, 28,327 (La. App. 2nd Cir. 8/21/96), 679 So.2d 953, 956, writ denied, 96-2345 (La. 2/21/97), 688 So.2d 521. Moreover, whether to grant or deny a motion for new trial rests within the sound discretion of the trial court, and that decision will not be disturbed on appeal absent a clear abuse of discretion. State v. Duvall, 97-2173 (La. App. 1st Cir. 12/28/99), 747 So.2d 793, 797, writ denied, 2000-1362 (La. 2/16/01), 785 So.2d 838. Herein, the defendant's motion for new trial falls under La. Code Crim. P. art. 851(4), which provides, in pertinent part, that the trial court, on motion of the defendant, shall grant a new trial whenever 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 denial of a motion for a new trial is not subject to appellate or supervisory review of the supreme court, except for error of law. See La. Code Crim. P. art. 858.
The Sixth Amendment to the United States Constitution guarantees the accused the right to trial by an impartial jury. See also La. Const. Art. I, § 16 ("Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial ..."). It is essential that all facts considered by the jury be presented in the courtroom with the full protection of the defendant's rights to confrontation and due process. State v. Sinegal, 393 So.2d 684, 686 (La. 1981). A juror who considers evidence not developed or admitted at trial violates his sworn duty and may be guilty of misconduct. State v. Galliano, 93-1101 (La. App. 1st Cir. 6/24/94), 639 So.2d 440, 445, writ granted in part on other grounds and remanded, 94-2030 (La. 1/6/95), 648 So.2d 911.
Although a defendant is ordinarily foreclosed from inquiry into the basis for a jury's verdict, an exception to this rule exists when there is an unauthorized communication or overt act by a third person that creates an extraneous influence on the jury. State v. Clark, 2012-0508 (La. 12/19/16), 220 So.3d 583, 679; Sinegal, 393 So.2d at 686. Louisiana Code of Evidence article 606(B), in pertinent part, specifically provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention.The jurisprudence has established that the prohibition against juror testimony is not absolute and must yield to a substantial showing that the defendant was deprived of his constitutional rights. Well-pleaded allegations of prejudicial juror misconduct violating a defendant's constitutional rights will require an evidentiary hearing at which jurors shall testify. State v. Smith, 2006-0820 (La. App. 1st Cir. 12/28/06), 952 So.2d 1, 15, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352. Unless such pleadings are made with particularity, jury members are not competent to testify. State v. Emanuel-Dunn, 2003-0550 (La. App. 1st Cir. 11/7/03), 868 So.2d 75, 80-81, writ denied, 2004-0339 (La. 6/25/04), 876 So.2d 829.
If a reasonable possibility exists that extraneous information considered by the jury affected its verdict, a new trial is mandated. Sinegal, 393 So.2d at 687; Galliano, 639 So.2d at 445. However, communications among jurors, even when violative of the trial court's instructions, do not amount to "outside influences" or "extraneous prejudicial information." Emanuel-Dunn, 868 So.2d at 82 (quoting State v. Quiambao, 36,587 (La. App. 2d Cir. 12/11/02), 833 So.2d 1103, 1110, writ denied, 2003-0477 (La. 5/16/03), 843 So.2d 1130). Thus, normal jury pressures and intra-jury influences are not grounds for overturning a verdict. Galliano, 639 So.2d at 445.
At the outset we note that while the defendant contends that he was not afforded a hearing on his motion for new trial, the record clearly reflects otherwise. Prior to sentencing, the defendant's attorney presented his arguments in support of the two bases listed in his motion for new trial. In support of the basis at issue, defense counsel contended that while in the presence of himself and a number of sworn jurors, the alternate juror relayed the feelings of members of the jury regarding the defendant's guilt or innocence. Finally, defense counsel further contended that the only way the alternate juror could have known the relayed information is by being present during early deliberation by members of the jury. In response, in pertinent part, the State contended that there was no evidence of juror misconduct and that it would be wrong to assume any misconduct based on bare allegations. Defense counsel declined the trial court's offer to reply to the State. The trial court agreed with the State in denying the motion for new trial. The defendant never requested to be heard on the motion any further. Further, while the defendant cites La. C.E. art. 606(B) on appeal, the defendant never requested from the trial court the opportunity to present any evidence or testimony.
Louisiana Code of Evidence art. 606(B) states:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
La. R.S. 14:130(A)(2), cited by the defendant on appeal, is not applicable to the argument raised in this case. Pursuant to La. R.S. 14:130(A)(2), jury misconduct is committed when "[a]ny petit juror shall intentionally permit any person to influence him, or attempt to influence him, in respect to his verdict in any cause pending, or about to be brought before him, otherwise than in the regular course of proceedings upon the trial of such cause." Herein, there is no claim that any member of the jury permitted any person to influence him, or that there was an attempt to influence a member of the jury in respect to his verdict. A constitutional due process right of fair trial by jury may be violated, if the trial jurors are subjected to influences by third parties (even including through the attending bailiffs of the State), which causes the jurors' verdict to be influenced by circumstances other than the evidence developed at the trial. Clark, 220 So.3d at 679-80. However, during trial, an alternate juror has the same functions, powers, facilities, and privileges as the principal jurors. La. C.Cr.P. art. 789(A). Consequently, an alternate juror's communication to a principal juror before his discharge is not an outside influence. State v. Graham, 422 So.2d 123, 134 (La. 1982).
Thus, even assuming in the instant case that the alternate juror "relayed the feelings" of members of the jury as alleged by the defendant, there is no indication that the jury considered extraneous information that affected its verdict in this case. During voir dire, the members of the jury indicated that they would decide the case from evidence presented in court at trial, as reiterated during instructions. The defendant has made no showing of any prejudicial jury misconduct, and we find no legal error in the trial court's conclusion. Thus, we find that the trial court did not err in denying the defendant's motion for new trial. Accordingly, assignment of error number one lacks merit.
NON-UNANIMOUS VERDICT
In assignment of error number two, the defendant argues that as a result of the non-unanimous jury verdict of eleven to one, he was denied his constitutional rights of due process and equal protection. Thus, the defendant argues that the trial court erred in accepting the verdict. The defendant suggests that recent jurisprudential developments call the holding in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) into serious question and allow this court to find that Article 782 is unconstitutional. The defendant cites the decisions of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) in support of his argument that the holding in Apodaca is incorrect. Thus, the defendant argues that the verdict and sentence should be vacated and the matter remanded for a new trial.
Whoever commits the crime of armed robbery shall be imprisoned at hard labor. La. R.S. 14:64(B). Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily confinement at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca, 406 U.S. at 406, 92 S.Ct. at 1630; State v. Belgard, 410 So.2d 720, 726 (La. 1982); State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 164-65.
In State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, the Louisiana Supreme Court held that non-unanimous jury verdicts were not unconstitutional. It noted that La. Code Crim. P. art. 782 "withstands constitutional scrutiny." As further noted, the court was "not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court's still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned." Bertrand, 6 So.3d at 743. Relying on Bertrand, the Fourth Circuit Court of Appeal upheld the constitutionality of non-unanimous jury verdicts in non-capital felony cases in State v. Barbour, 2009-1258 (La. App. 4th Cir. 3/24/10), 35 So.3d 1142, writ denied, 2010-0934 (La. 11/19/10), 49 So.3d 396. The United States Supreme Court denied certiorari in Barbour, thereby declining to address the issue of non-unanimous jury verdicts. Barbour v. Louisiana, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011).
The defendant's reliance on the jurisprudential developments in the United States Supreme Court in Blakely and McDonald is misplaced. Blakely addressed the issue of sentence enhancement made by a trial court and had no bearing on the unconstitutionality of non-unanimous verdicts. State v. Huey, 2013-1227 (La. App. 1st Cir. 2/18/14), 142 So.3d 27, 33, writ denied, 2014-0535 (La. 10/3/14), 149 So.3d 795, cert. denied, ___ U.S. ___, 135 S.Ct. 1507, 191 L.Ed.2d 443 (2015). The McDonald court, while holding that the Second Amendment right to keep and bear arms is fully applicable to the States through the Fourteenth Amendment, did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S.Ct. at 3035 n.14. The McDonald court specifically stated that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S.Ct. at 3035 n.14; State v. Bishop, 2010-1840 (La. App. 1st Cir. 6/10/11), 68 So.3d 1197, 1205, writ denied, 2011-1530 (La. 12/16/11), 76 So.3d 1203. Moreover, the defendant's argument challenging the constitutionality of non-unanimous jury verdicts has been repeatedly rejected by this court. See Huey, 142 So.3d at 33; Smith, 952 So.2d at 23-24; State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So.2d 147, 156-57, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684.
The Bertrand Court found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Bertrand, 6 So.3d at 743. Regarding the equal protection argument that such verdicts have an insidious racial component, the Bertrand Court noted that the issue had already been decided as meritless by a majority of the United States Supreme Court in Apodaca. Bertrand, 6 So.3d at 743. While Apodaca was a plurality rather than a majority decision, the United States Supreme Court, as well as other courts, has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 6 So.3d at 742-43. Thus, La. Code Crim. P. art. 782(A) is not unconstitutional and, therefore, not in violation of the defendant's constitutional rights. See State v. Hammond, 2012-1559 (La. App. 1st Cir. 3/25/13), 115 So.3d 513, 515, writ denied, 2013-0887 (La. 11/8/13), 125 So.3d 442, cert. denied, ___ U.S. ___, 134 S.Ct. 1939, 188 L.Ed.2d 965 (2014). Considering the foregoing, assignment of error number two lacks merit.
CONVICTION AND SENTENCE AFFIRMED.