Opinion
2014 KA 0136
09-19-2014
STATE OF LOUISIANA v. ALFRED SCALES
Hillar Moore District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Katherine M. Franks Abita Springs, Louisiana Counsel for Defendant/Appellant Alfred Scales
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge State of Louisiana
No. 08-12-0338
Honorable Louis R. Daniel, Judge Presiding Hillar Moore
District Attorney
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Katherine M. Franks
Abita Springs, Louisiana
Counsel for Defendant/Appellant
Alfred Scales
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON, J.
Defendant, Alfred William Scales, was charged by grand jury indictment with the second degree murder of James Brown (count I), and the second degree murder of Jamie Davenport (count II), both violations of Louisiana Revised Statutes 14:30.1. The defendant pled not guilty. Following a jury trial, he was found guilty as charged on both counts. The trial court denied the defendant's motion in arrest of judgment and motion for post-verdict judgment of acquittal. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on both counts, with the sentences to run concurrently with each other. The defendant now appeals, challenging the sufficiency of the evidence on both counts and the non-unanimous jury verdict on count I. For the following reasons, we affirm the defendant's convictions and sentences.
The defendant claimed to be married to Ms. Davenport, although no evidence in this regard was presented at trial.
FACTS
On May 25, 2012, at approximately 4:00 p.m., Faithyia Williams, a student at Southern University, was driving home on Thomas Road when she noticed a woman, who was wearing all white clothes, run out of a nearby house. Williams testified that a black male, wearing a striped burgundy and white shirt, was a few steps behind the woman as she ran. Williams indicated the woman stumbled and fell in the driveway, which she believed may have been due to a gunshot from the male. Williams testified the male stood over the woman, and shot her twice. The male then began casually walking along a side street. Williams called 911 and waited for the police. Though she informed the police of what she saw, she did not participate in a photographic lineup procedure as she was unable to fully view the man's face.
Also on May 25, 2012, Stephanie Repak was backing out of her driveway located on Halsey Street (near Thomas Road) at approximately 4:30 p.m., when she noticed a black man, roughly 5'9"-5'10", wearing a baggy striped shirt, walking along the road. Repak waited for the man to clear her driveway, but he approached her front passenger window. Repak testified the man indicated his car had broken down and that he needed a ride to his mother's house on Thomas Road. The man was extremely hot and sweaty as if he had been running. Repak allowed the man into her vehicle, and he noted congestion on Thomas Road and advised her not to go that way. She then decided to use Plank Road. Repak indicated the man continually asked for changes in their direction. Later, the man said they were going to his sister's house, rather than his mother's house. Repak noted that as they were traveling, she observed many police cars driving towards Thomas Road. Eventually, the two arrived at the intersection of Blount Road and Avenue C. At his request, Repak let the man out at the end of Avenue C in Scotiandvilie, but she never asked his name. The man was in her vehicle for approximately fifteen minutes. After dropping the man off, Repak completed her errands around town and then returned home. When she returned home, Repak's husband informed her that police and a helicopter were surrounding the area. The two drove to the crime scene, made contact with two detectives, and Repak advised them of her encounter with the man earlier in the day. Repak took the police to the exact location where she let the man out of her vehicle. Additionally, following a photographic lineup, she identified the defendant's photograph as depicting the man she had transported.
John Coats testified at trial. On the morning of May 25, 2012, Coats visited the male victim at his house on Thomas Road to discuss a roofing project for Coats's barn. Coats testified that the defendant had arrived earlier at the house with his mother to retrieve some items. Coats testified the defendant and the male victim began arguing, and though he could not recall the basis of the argument, Coats attempted to "keep the peace" between the two men. Coats indicated the male victim ordered the defendant to get off his property and stated that he was going to call the police. Coats testified that the defendant's mother was trying to get the defendant to leave, but the defendant was not cooperating with his mother as he was "cussing and arguing with Ms. Davenport and James." Eventually the argument ended, and the defendant left with his mother in her car. After the argument, Coats left the Thomas Road residence, walked to a nearby Circle K and Burger King, and subsequently returned thirty-five to forty-five minutes later. Coats testified that as he approached the house, he noticed an individual with a red and white striped shirt (whom he later recognized as the defendant) arguing with the male victim, and when the defendant re-entered the house, Coats heard a gunshot. Coats testified he saw the male victim fall backwards. Coats was dialing 911 when he heard a second gunshot ring out, but he was unable to speak to an operator, so he ran to a nearby nursing home and asked someone there to call 911. Coats then stepped back outside and headed towards the murder scene. Coats saw the female victim stumble out of the house. Coats indicated that the defendant then exited the house, turned towards the female victim (who had fallen in the driveway), and shot her. Next, Coats stated the defendant "turned her over and shot her a couple more times." Coats indicated that the defendant then ran towards a vehicle that had stopped in front of the house, and pulled on the door to enter the car, but the driver sped away. Because the defendant could not enter the vehicle, he turned and ran down a side street - the first street to the left off Thomas Road. Coats further testified that during this time, he was able to speak to a 911 operator who instructed him to check for a pulse on the two victims. The driver of the vehicle that the defendant attempted to enter returned and assisted Coats. The female victim did have a pulse, and Coats searched for something to stop the bleeding. Eventually, the police arrived and took control of the scene. Later, Coats reviewed a photographic lineup, and had "no doubt" in selecting the defendant as the shooter.
Several police officers also testified at trial. Sergeant Cedric Muse of the East Baton Rouge Parish Sheriff's Office indicated that he was dispatched to the 5000 block of Thomas Road on May 25, 2012, after reports of gunfire. When he arrived, he noticed a black female lying near the driveway and another victim in the front door.
Corporal Amie Genola, a crime scene technician with the East Baton Rouge Parish Sheriff's Office, testified that she was dispatched to the crime scene at 5366 Thomas Road. When she arrived, she noticed a female victim, who appeared deceased in the front yard, and a male victim in the front doorway. Next, she made contact with homicide detective, Sergeant Corcoran. Corporal Genola met with another crime scene technician, Lieutenant Allen Boudier, and they agreed Corporal Genola would sweep the outside of the residence, while Boudier examined the interior. Corporal Genola observed the female victim was shot once in the face, once at the top of her head, twice in her arm, and once in her chest. Corporal Genola collected a DNA sample from the female victim and lifted prints from a silver Mercedes car. Corporal Genola did not examine the male victim.
Lieutenant Allen Boudier, a crime scene detective with the East Baton Rouge Parish Sheriff's Office, testified that his shift was scheduled to begin at 6:00 p.m. on May 25, 2012, but he was called in early to assist Corporal Genola with the Thomas Road murders. When he arrived, Corporal Genola and Lieutenant Boudier decided that Lieutenant Boudier would process the interior of the home. He began by processing and taking photographs with the lead detective. Upon entering the residence, he noticed a black male in the front doorway, lying face up, wearing jeans and a pullover shirt. Further, a chain necklace was on the floor next to the victim. Lieutenant Boudier discovered a .38 caliber revolver on the dining room table. The revolver contained six spent rounds. He swabbed the revolver and casings for DNA evidence, as well as a sliding glass door and a screen door located in the house. Lieutenant Boudier also collected two oral swabs from the male victim as well as the female victim. Furthermore, he secured additional photographs and took a video recording of the crime scene.
Sergeant Roger Corcoran, with the East Baton Rouge Parish Sheriff's Office homicide division, testified at trial. When he first arrived at the scene, he observed a green Cadillac Escalade in the driveway and two victims. Concerning the female victim, Sergeant Corcoran noted she was wearing white pants and had a gunshot wound to the head and shoulder. Regarding the male victim, Sergeant Corcoran believed he had a gunshot wound to the head, but he was not sure of the exact placement. While inside the house, Sergeant Corcoran found a revolver on the kitchen table. Furthermore, Sergeant Corcoran indicated a chair and lamp were next to the male victim. Sergeant Corcoran observed blood on the floor and wall around the male victim, as well as on his body. Additionally, while at the scene, Sergeant Corcoran came into contact with witness John Coats. Sergeant Corcoran later interviewed Coats at his office at the State Police Violent Crimes Unit. Coats informed Sergeant Corcoran that before shots were fired, the male victim fell backward. A photographic lineup was presented to Coats, who identified the defendant as the perpetrator of the crime.
Detective Richard Decuir of the East Baton Rouge Parish Sheriff's Office homicide division testified at trial. He indicated that at approximately 4:45 p.m. on May 25, 2012, he was dispatched to the Thomas Road crime scene. Upon his arrival, he met with his partner, Sergeant Corcoran, to determine what action needed to be taken. The two determined that Detective Decuir would begin interviewing witnesses. Detective Decuir met with Faithyia Williams and Stephanie Repak. A photographic lineup was not presented to Williams, but was presented to Repak. Detective Decuir testified Repak "immediately, without hesitation" selected the defendant's photograph as the man who rode in her vehicle. Additionally, Detective Decuir spoke to the defendant at the East Feliciana Parish jail, where he was being held on an East Baton Rouge Parish warrant. The defendant was taken into custody and transported to the violent crimes unit where he granted consent for collection of his DNA.
Two experts testified at trial. Dr. Srivatcha Naragoni, a forensic scientist in the DNA Unit of the East Baton Rouge Parish Sheriff's Office, was accepted as an expert in the field of forensic DNA analysis. She analyzed one swab from the revolver, one swab from the cartridge cases, and an oral reference swab from the defendant. The DNA swab of the revolver was consistent with being a mixture of DNA from two people, and of those, Dr. Naragoni testified the defendant could not be excluded as a contributor, with the probability of finding the same DNA profile at approximately 1 in 20.6 million in the Caucasian population, 1 in 35.4 million in the black population, and 1 in 38.6 million in the southwest Hispanic population. Ultimately, she concluded that the defendant's DNA was on the revolver. Dr. Naragoni did not, however, analyze any reference DNA swabs from either victim.
Patrick Lane, an employee with the Louisiana State Police Crime Lab was accepted as an expert in the field of firearms identification. He testified he examined and test fired the .38 caliber Smith and Wesson revolver found at the crime scene. Additionally, he inspected the cartridge casings and bullets retrieved from the victims' bodies. Ultimately, he concluded that the bullets and cartridge casings were all fired from the six-shot revolver.
Additionally, a stipulation was reached between the State and defense counsel, whereby they agreed that Dr. Bruce Wainer, the chief forensic pathologist with the East Baton Rouge Parish Coroner's Office, conducted the autopsies on both victims. It was stipulated that if called to testify, Dr. Wainer would indicate that various drugs, including cocaine and marijuana metabolite were present in the male victim's body at the time of death and that he died as a result of a gunshot wound to the chest. Further, it was stipulated Dr. Wainer would testify that the male victim's blood alcohol content at the time of death was 0.2%. Lastly, it was stipulated that Dr. Wainer would testify that the cause of the female victim's death was multiple gunshot wounds.
Margaret Scales, the defendant's mother, testified at trial. On May 25, 2012, she was traveling down Thomas Road in order to pick up her son, who was retrieving his clothes so he could report to work. The defendant's mother testified she did not know exactly where she needed to meet her son, but when she arrived on Thomas Road, he was standing at the end of a sidewalk. She testified that when the defendant opened the door to her vehicle, another man (the eventual male victim) came out of a house and was yelling "bad things" at the defendant. The defendant's mother testified that the defendant responded saying he did not have any quarrel with him. Furthermore, she indicated that the male victim appeared violent and acted as if he wanted to fight. The defendant's mother testified that she and the defendant then left the residence, and she was unsure whether or not he returned to the Thomas Road residence.
The defendant testified at trial. He stated that on the day of the incident, he was walking to a friend's house when he noticed a Cadillac Escalade on Thomas Road that he and the female victim, his alleged wife, bought the day before. The defendant further testified that he needed to retrieve his work clothes from the vehicle so that he could return to work, but the vehicle was locked. The defendant knocked on the door, and the male victim answered. The defendant claimed the male victim began cursing and yelling at him, and the defendant thought the male victim was "playing" at first. The defendant testified that he, the male victim, and John Coats were standing outside of the house. The defendant indicated he informed the men that he wanted to retrieve items out of his vehicle and go to work. Eventually, the defendant indicated that the male victim "calmed down" and that it "wasn't no hostile situation no more." The male victim eventually invited the defendant inside his residence. The defendant testified he was not concerned about entering the house because "it was all right—it was all right to be around him." While inside, the defendant noticed a semi-automatic handgun on the sofa, which "didn't scare [him] at all." The defendant claimed that eventually, the male victim became irate, started cursing again, and then hit the defendant with a closed fist on the lower left part of his eye. According to the defendant, the male victim reached for the semi-automatic handgun on the sofa, and the defendant withdrew the revolver he was carrying. The defendant testified that as he was pulling out his weapon, a struggle ensued between the two men, and the male victim reached for the defendant's revolver. The defendant testified that as he was falling backwards, the male victim attempted to turn the barrel of the gun towards the defendant, but the defendant was able to force the gun back towards the male victim and fire. At that point, the defendant claimed he was scared to death and was afraid to go outside because he was unsure of who else might have a weapon. The defendant later learned that his shot killed the male victim. The defendant testified that after shooting the male victim, he then shot the female victim. The defendant claimed he ran away because he was scared.
The defendant testified that his wife had both sets of keys for the vehicle.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant argues his actions on the day of the incident were justified because he was in fear of receiving great bodily harm or death, and the killing was necessary to save himself from the danger. In the alternative, in both assignment of errors numbers 1 and 2, he argues the evidence presented on both counts only supported convictions for manslaughter.
The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 10-1841 (La.App. 1 Cir. 6/10/11), 68 So.3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438; State v. Millien, 02-1006 (La.App. 1 Cir. 2/14/03), 845 So.2d 506, 508-09.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 00-0895 (La. 11/17/00), 773 So.2d 732.
SECOND DEGREE MURDER
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A)(1). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 00-2223 (La. 6/15/01), 793 So.2d 1235.
SELF-DEFENSE AND AGGRESSOR DOCTRINE
When a defendant charged with a homicide claims self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Rosiere, 488 So.2d 965, 968 (La. 1986).
Louisiana Revised Statutes 14:20, in pertinent part, provides:
A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its
prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
* * * *
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.
However, Louisiana Revised Statutes 14:21 provides:
A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.The relevant inquiry on appeal is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Rosiere, 488 So.2d at 968-69; see also State v. Wilson, 613 So.2d 234, 238 (La.App. 1 Cir. 1992), writ denied, 635 So.2d 238 (La. 1994).
MANSLAUGHTER
Manslaughter is a homicide which would be either first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. "Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed." LSA-R.S. 14:31(A)(1). "Sudden passion" and "heat of blood" are not elements of the offense of manslaughter; rather, they are mitigating factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Rodriguez, 01-2182 (La.App. 1 Cir. 6/21/02), 822 So.2d 121, 134, writ denied, 2002-2049 (La. 2/14/03), 836 So.2d 131. The State does not bear the burden of proving the absence of these mitigating factors. A defendant who establishes by a preponderance of the evidence that he acted in a "sudden passion" or "heat of blood" is entitled to a manslaughter verdict. In reviewing the claim, this court must determine if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence. State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, 177, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126.
A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder as well as the defendant's identity as the perpetrator of the offenses against the victims. The verdict rendered in this case indicates the jury credited the testimony of the witnesses against the defendant and rejected his self-serving testimony, particularly in light of his admission that he shot both the male and female victims. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385 (La.App. 1 Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 00-0829 (La. 11/13/00), 774 So.2d 971.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
Additionally, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find the evidence presented by the State established that the defendant was the aggressor in the conflict and, thus, was not entitled to self-defense. Moreover, even if it could be found that the defendant was not the aggressor, any rational trier of fact could find, beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant did not act in self-defense. Testimony at trial indicated that the defendant had the opportunity to leave the Thomas Road residence with his mother prior to the killings. Further, during the struggle that ensued after the defendant brandished his revolver, rather than try to point the gun away from the male victim, the defendant specifically pointed it towards this victim. Additionally, testimony at trial indicated that the male victim actually fell backwards before the critical shot was fired by the defendant, and that he shot the female victim, who was not armed, five times. The defendant then fled the scene and disposed of the weapon. The defendant's flight from the scene after the incident was inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 187 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 1253 (La. 1993).
Furthermore, any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could also find that the mitigating factors required to support manslaughter were not established by a preponderance of the evidence. Any rational trier of fact could conclude that prior to the murders, the defendant's blood had actually cooled by the time he entered the Thomas Road residence, and that the male victim's cursing at the defendant was insufficient provocation for the defendant to shoot him in the chest. Furthermore, any rational trier of fact could conclude that the defendant's fear and uncertainty on the day of the incident was insufficient provocation to stand over the female victim and shoot her five times.
These assignments of error are without merit.
CONSTITUTIONALITY OF NON-UNANIMOUS VERDICT
In the defendant's third assignment of error, he argues that the constitutional provision allowing non-unanimous jury verdicts violates his equal protection rights due to an express and overt desire to discriminate against African-Americans. The defendant argues that the historical background of the offending Louisiana law easily supports a finding of discriminatory intent. In addition to the equal protection argument, he also claims that the non-unanimous verdicts and Louisiana's jury system violates his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments. Furthermore, the defendant avers that in light of McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3035, 177 L.Ed.2d 894 (2010), the holding of Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) is no longer good law.
Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:30.1(B). Louisiana Constitution article I, §17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily 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 less than a 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 v. Oregon, 406 U.S. at 406, 92 S.Ct. at 1630; State v. Bishop, 10-1840 (La.App. 1 Cir. 6/10/11), 68 So.3d 1197, 1205, writ denied, 11-1530 (La. 12/16/11), 76 So.3d 1203.
In the instant case, the guilty verdict on count I was non-unanimous, with a concurrence of ten jurors out of twelve. As conceded by the defendant, both this Court and the Louisiana Supreme Court have previously rejected the argument raised in this assignment of error. See State v. Bertrand, 2008-2215, 2008-2311 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Huey, 13-1227 (La.App. 1 Cir. 2/18/14), ___So.3d___, 2014 WL 621610. As explained in Bertrand, although the Apodaca decision was, indeed, a plurality decision rather than a majority one, the United States Supreme Court has cited or discussed the opinion various times since its issuance and on each of these occasions, it is apparent that the Supreme Court considered Apodaca's holding as to non-unanimous jury verdicts well-settled law. The Bertrand court specifically 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 742. 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. Accordingly, LSA-Const. art. I, §17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and, hence, not in violation of the defendant's constitutional rights.
Nevertheless, while the defendant concedes that Apodaca stands for the proposition that non-unanimous verdicts are permissible under the Sixth Amendment, he asserts the Supreme Court's recent decision in McDonald v. City of Chicago effectively overruled Apodaca. The defendant argues that McDonald left no doubt that all of the incorporated Bill of Rights protections have identical application against state and federal governments.
The defendant's contention is meritless. In McDonald, the United States Supreme Court recognized that most, but not all, of the protections of the Bill of Rights have been incorporated to the states through the Fourteenth Amendment. McDonald, 130 S.Ct. at 3034-35. Furthermore, citing Apodaca in support of the proposition, the Supreme Court specifically stated in McDonald that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. McDonald, 130 S.Ct. at 3035, n.14. The Supreme Court in McDonald actually reaffirmed the holding of Apodaca, rather than overruling it. See Bishop, 68 So.3d at 1205.
Louisiana Constitution Article I, §17(A) and Louisiana Code of Criminal Procedure article 782(A) are constitutional and do not violate the Fifth, Sixth, and Fourteenth Amendments. There is no authority to the contrary, and we are not at liberty to ignore the controlling jurisprudence of superior courts on this issue. See Bertrand, 6 So.3d at 743.
Accordingly, this assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.