Opinion
2021-KA-0254
05-09-2023
STATE OF LOUISIANA v. NATHANIEL O. ROBINSON
DLD
DYSART, J., DISSENTS
I respectfully dissent. Here, the defendant was found guilty of 35 separate counts of indecent behavior and video voyeurism. When the jury returned with its verdicts, the trial court asked if there were at least 10 jurors who agreed with the verdicts, and the jury foreperson responded in the affirmative. At this point, the trial court asked defendant whether any additional motions lay, but counsel for defendant responded in the negative. Accordingly, there was no polling of the jury.
Following State v. Norman, 2020-00109 (La. 7/2/20), 297 So.3d 738, the matter was remanded to the district court to review the record and to conduct further proceedings to determine whether the verdict was unanimous. In its per curiam to this Court, the district court determined that no polling of the jury was requested or performed. Further a search of the Orleans Clerk of Court records failed to reveal the existence of any polling slips.
Following this Court's ruling in State v. Lamizana, 16-1017 (La.App. 4 Cir. 5/31/17), 222 So.3d 58, a formal objection to the jury's verdict in the form of a polling request is not waived but examined as an error patent. I therefore agree, unlike our First and Secord Circuit Brethren, that the failure to request a polling is not waived. However, in this matter there is nothing in the record to affirmatively indicate that the matter was anything but unanimous. The trial court asked the jury foreperson if there were at least 10 jurors in agreement and the response was yes. There is no other evidence in the record, transcripts or clerk's office that the jury's decision was less than unanimous. Unlike State v. Fortune, 19-0868 (La.App. 4 Cir. 8/12/20), 310 So.3d 578, there is no testimony by any of the trial counsel or judge that the jury was not unanimous.
Accordingly, absent any indication that the jury was less than unanimous, I would find that the defendant is not entitled to a new trial.