Opinion
No. 2020 KA 0685R.
09-16-2022
STATE of Louisiana v. Jerome GRAY.
McDONALD, J.
The State of Louisiana charged the defendant, Jerome A. Gray, by an amended grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count one), and possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1 (count two). He pled not guilty. After a trial by jury, he was found guilty as charged on both counts. The defendant was sentenced on count one to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, he was sentenced to twenty years imprisonment at hard labor, to run concurrent to the sentence imposed on count one.
The defendant appealed to this court, challenging the sufficiency of the evidence and the denial of his motion for mistrial in a counseled brief and the amendment of the grand jury indictment in a pro se brief. This court affirmed the convictions and sentences. State v. Gray, 2020-0685 (La. App. 1st Cir. 6/17/21), 2021 WL 2470515. Subsequently, in granting the defendant's pro se writ application in part, the Louisiana Supreme Court remanded the case to this court "for further proceedings and to conduct a new error patent review in light of Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020)." State v. Gray, 2021-01232 (La. 2/8/22), 332 So.3d 630 (per curiam). For the following reasons, we again affirm the convictions and sentences.
In Ramos, the United States Supreme Court held that the right to a jury trial under the Sixth Amendment of the United States Constitution, incorporated against the States by way of the Fourteenth Amendment of the United States Constitution, requires a unanimous verdict to convict a defendant of a serious offense. Ramos, 140 S.Ct. at 1397. The Ramos Court further noted that its ruling applied to those defendants convicted of felonies by non-unanimous verdicts whose cases were still pending on direct appeal when the case was decided. Ramos, 140 S.Ct. at 1406. Citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), in remanding the instant case, the Louisiana Supreme Court noted that the present matter was pending on direct review when Ramos was decided, and therefore the holding of Ramos would apply to any non-unanimous verdict rendered herein. Gray, 332 So.3d at 630.
The Louisiana Supreme Court further stated, "If the non-unanimous jury verdict claim, presented in a pro se supplemental filing, was not preserved for review in the trial court or was abandoned during any stage of the proceedings, the court of appeal should nonetheless consider the issue as part of its error patent review. See La. C.Cr.P. art. 920(2)." Gray, 332 So.3d at 630.
PATENT ERROR REVIEW
For the facts of this case, see this court's previous opinion on original appellate review. Gray, 2021 WL 2470515.
On remand, as instructed, this court has reviewed the record under La. C.Cr.P. art. 920(2). Pursuant to La. C.Cr.P. art. 920(2), this court shall consider "[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." The jury's verdict is part of the pleadings and proceedings that this court must review for errors. State v. Keys, 328 So.2d 154, 157 (La. 1976); State v. Anderson, 2017-0927 (La. App. 1st Cir. 4/6/18), 248 So.3d 415, 418-19, writ denied, 2018-0738 (La. 3/6/19), 266 So.3d 901.
In reviewing the supplemented record, we have found no reversible errors under Article 920(2). We are mindful of the Supreme Court's decision in Ramos. However, the minutes and polling slips show that the verdict on each count was unanimous in this case. Accordingly, the defendant's convictions and sentences are again affirmed.
On May 4, 2022, this court, on its own motion, ordered the district court to supplement the record on appeal with the written jury polling slips. We note that written polling slips recording the verdict of the jurors are properly reviewable under La. C.Cr.P. art. 920(2). State v. Talley, 2018-1300 (La. App. 1st Cir. 9/14/20), 313 So.3d 439, 442, n.5. See also State v. Kelly, 2015-0484 (La. 6/29/16), 195 So.3d 449, 456 (quoting State v. Wrestle, Inc., 360 So.2d 831, 837 (La. 1978), rev'd in part on other grounds. Burch v. State of Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979)); State v. Bradford, 298 So.2d 781, 785 (La. 1974). On May 6, 2022, the instant record was supplemented with copies of the written jury polling slips.
As noted on patent error review in this court's original opinion, the record contains two sentencing errors, one that is not inherently prejudicial to the defendant and another that is corrected by operation of law. See Gray, 2021 WL 2470515, at *10.