Opinion
NO. 2013-KA-1525
07-30-2014
STATE OF LOUISIANA v. DAVID MORALEZ
Leon A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant District Attorney Mithun Kamath Law Clerk Parish of Orleans 619 South White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE/STATE OF LOUISIANA Powell W. Miller LOUISIANA APPELLATE PROJECT P.O. BOX 4121 New Orleans, LA 70178-4121 COUNSEL FOR APPELLANT/DEFENDANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 500-033, SECTION "J"
Honorable Darryl A. Derbigny, Judge
Judge Madeleine M. Landrieu
(Court composed of Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
JENKINS, J., CONCURS IN THE RESULT
Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
Mithun Kamath
Law Clerk
Parish of Orleans
619 South White Street
New Orleans, LA 70119
COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Powell W. Miller
LOUISIANA APPELLATE PROJECT
P.O. BOX 4121
New Orleans, LA 70178-4121
COUNSEL FOR APPELLANT/DEFENDANT
AFFIRMED
NOT DESIGNATED FOR PUBLICATION
Defendant, David Moralez, appeals his conviction of second degree murder and the sentence imposed by the trial court. For the reasons that follow, we affirm.
On September 3, 2010, Mr. Moralez was charged by grand jury indictment with one count of second degree murder, in violation of La. R.S. 14:30.1. At his arraignment, Mr. Moralez pled not guilty. Subsequently, the trial court denied Mr. Moralez's motion to suppress his statement, determined that he was competent to stand trial, and set the matter for trial. Following jury selection on May 7, 2013, Mr. Moralez filed a motion to declare unconstitutional Louisiana Constitution Article 1, §17(A) and Louisiana Code of Criminal Procedure Article 782(A). The trial court denied the motion.
On May 8, 2013, a twelve-person jury found Mr. Moralez guilty as charged by a ten-two vote. Mr. Moralez filed a motion for new trial and a motion for postverdict judgment of acquittal. On June 19, 2013, the trial court denied both motions and sentenced the defendant to life in prison without benefit of parole or suspension of sentence. Mr. Moralez now appeals.
Our review of the record reveals an error patent in that the trial court, as reflected in the transcript, neglected to impose the sentence without benefit of probation, in violation of La. R.S. 14:30.1(B). However, the law provides that this error is self-correcting. See La. R.S. 15:301.1(A); State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.
The sole issue Mr. Moralez raises on appeal is the constitutionality of nonunanimous verdicts as provided for in Article I, §17(A) of the Louisiana Constitution and in Article 782(A) of the Louisiana Code of Criminal Procedure.Each provision stipulates that, in cases where punishment is necessarily at hard labor (such as second degree murder), the defendant shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.
Because the facts underlying Mr. Moralez's offense are not relevant to this issue, they are not discussed in this opinion.
La. Const. art. I, § 17(A) provides:
(A) Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. 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. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. [Emphasis added].
Mr. Moralez argues that the ten-two jury verdict in his case violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because the initial enactment of non-unanimous jury provisions in Louisiana was motivated by racial animus and discrimination toward African-Americans. He also argues that the non-unanimous jury provisions have a discriminatory impact on African-American jurors and defendants.
Statutes are generally presumed to be constitutional, and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Hatton, 2007-2377, p. 13 (La. 7/1/08), 985 So 2d 709, 719 (citing State v. Fleury, 2001-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472. When analyzing a constitutional challenge to a statute, a three-step analysis is employed to determine whether the challenger has met his burden of proof: (1) unconstitutionality must be raised in the trial court; (2) unconstitutionality must be specially pleaded; and (3) the grounds outlining the basis of unconstitutionality must be particularized. State v. Webb, 2013-0146, p. 37 (La. App. 4 Cir. 1/30/14), 133 So. 3d 258, 282 (citing Hatton, 2007-2377, pp. 13-16, 985 So.2d at 718-720). "[T]he purpose of the three-step analysis for challenging the constitutionality of a statute is to give the parties an opportunity to brief and argue the constitutional grounds and to prepare an adequate record for review." Webb, 2013-0146, pp. 3738, 133 So.3d at 282 (quoting Hatton, 2007-2377, at p. 18, 985 So.2d at 721, but adding emphasis).
In the case before us, Mr. Moralez did not seek an evidentiary hearing on his motion or present any evidence in the trial court to support his contention that these two provisions are unconstitutional. The transcript of the hearing reflects that there was no argument as to the merits of the defendant's allegations of unconstitutionality. After Mr. Moralez was convicted by a non-unanimous jury verdict, his counsel stated prior to sentencing that he was submitting the defendant's motions for new trial and for post-verdict judgment of acquittal on the written memoranda, and those motions were then denied in open court. Therefore, we find that Mr. Moralez has failed to preserve the issue of unconstitutionality for appellate review. See State v. Hankton, 2012-0375, pp. 14, 16-17(La. App. 4 Cir. 8/2/13), 122 So.3d 1028, 1036-1037, writ denied, 2013-2109 (La. 3/14/14), 134 So.3d 1193. Further, assuming the issue had been properly raised, the arguments in support of unconstitutionality asserted in Mr. Moralez's appellant brief have been recently rejected by this court. See State v. Webb, 2013-0146, pp. 36-46, 133 So.3d at 281-287; State v. Hankton, 2012-0375, pp. 17-26, 122 So.3d at 10371042.
Mr. Moralez also asserts that non-unanimous jury verdicts violate the Sixth Amendment to the U.S. Constitution as applied to the States through the Fourteenth Amendment, but does not brief this issue, raising it only to "preserve [it] for further review in the U.S. Supreme Court." This contention was definitively rejected by the Louisiana Supreme Court in State v. Bertrand, 2008-2215, 2008-2311 (La. 3/17/09), 6 So.3d738. We decline to further address this assignment of error because it was not briefed. See Rule 2-12.4, Uniform Rules—Louisiana Courts of Appeal.
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CONCLUSION
Accordingly, for the reasons stated, the defendant's conviction and sentence are affirmed.
AFFIRMED
La.C.Cr.P. art. 782(A) essentially tracks La. Const. art. I, § 17(A), and states:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. 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. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. [Emphasis added].