Opinion
NO. 2011-KA-0058
09-14-2011
STATE OF LOUISIANA v. CRAIG SMITH
Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney Samantha Guard Rule XX, Student Practitioner COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 471-368, SECTION "J"
Honorable Darryl A. Derbigny, Judge
PAUL A. BONIN
JUDGE
(Court composed of Judge Charles R. Jones, Judge Paul A. Bonin, Judge Daniel L. Dysart)
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
Samantha Guard
Rule XX, Student Practitioner
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
A less-than-unanimous twelve-person jury found Craig Smith guilty of the attempted second-degree murder of Nathaniel Davis, a violation of La. R.S. 14:(27)30.1. He was sentenced to serve forty years in the custody of the corrections department. Mr. Smith's appellate counsel assigns only one error: that Louisiana's provisions of law which permit less-than-unanimous jury verdicts violate Mr. Smith's Sixth Amendment right to trial by jury. We reject this argument because we are obliged to follow the controlling authority of the Louisiana Supreme Court on this issue. Thus, we affirm Mr. Smith's conviction and sentence.
The sentence for attempted second-degree murder is to be served "without benefit of probation, parole, or suspension of sentence." LA. R.S. 14:27 D(1)(a). Although these restrictions were not pronounced by the sentencing judge, the sentence is "deemed to contain the provisions". See LA. R.S. 15:301.1 A; State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790.
Mr. Smith had requested the record of this case, which was forwarded to the Legal Programs Department at the Louisiana State Penitentiary at Angola on March 3, 2011, accompanied by an order granting him forty-five days to file his own brief. No briefed was filed by him.
Also, as we always do, we have independently reviewed the record for errors patent. See La. C.Cr.P. art. 920 (2). We discern no error patent.
We briefly address Mr. Smith's claim, first raised by motion in the trial court, that La. Const. art. I, §17(A) and La. C.Cr.P. art 782 A, which authorize less-than-unanimous jury verdicts in specified felonies triable by twelve-person
The relevant provision of La.Const. art. I, §17 (A) reads in pertinent part: "A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict."
Article 782 A provides, in pertinent part: "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."
juries, violate the Sixth and Fourteenth Amendments and on that account are unconstitutional. Mr. Smith desires to preserve the issue for review by the United States Supreme Court in the event it reconsiders its plurality opinion in Apodaca v. Oregon, which decision approved of Oregon's use of less-than-unanimous juries. See Apodaca v. Oregon, 406 U.S. 404 (1972).
We note that the same issue was raised in the appeal of Mr. Smith's co-defendant. See State v. Taylor, 09-0041 (La. App. 4 Cir. 9/4/09), 21 So. 3d 421.
In Apodaca four justices concluded that the Sixth Amendment did not require unanimous juries, and four justices concluded that the Sixth Amendment did require unanimity and that the Fourteenth Amendment applied the requirement to the states. The result in Apodaca turned on the conclusion of a single justice that, while the Sixth Amendment had a unanimity requirement, the Fourteenth Amendment did not apply that requirement to the states.
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Mr. Smith apparently recognizes that we cannot anticipate such reconsideration and must adhere to controlling authority. In a case in which a district judge had found Article 782 A unconstitutional, the Louisiana Supreme Court reversed with the following observation:
Due to this Court's prior determinations that Article 782 withstands constitutional scrutiny, and because we are 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, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.State v. Bertrand, 08-2215, 08-2311, p. 8 (La. 3/17/09), 6 So. 3d 738, 743. See also State v. Barbour, 09-1258, pp. 15-16 (La. App. 4 Cir. 3/24/10), 35 So. 3d 1142, 1150-1151, writ denied, 2010-0934 (La. 11/19/10), 49 So. 3d 396, cert. denied, ___ U.S. ___, 131 S. Ct. 1477 (2011).
Suffice it to say that intermediate appellate judges, like a trial judge, are "not at liberty to ignore the controlling jurisprudence of superior courts." Bertrand, supra. See also State v. Lawrence, 09-1637, p. 18 (La. App. 4 Cir. 8/25/10), 47 So. 3d 1003, 1013.
DECREE
The conviction and sentence of Craig Smith for the attempted second-degree murder of Nathaniel Davis is affirmed.
AFFIRMED