Opinion
NO. 2018-KA-0445
10-29-2020
STATE of Louisiana v. Clifford WILLIAMS
Leon Cannizzaro, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY's OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE Autumn A. Town, LAW OFFICE OF AUTUMN TOWN, LLC, 700 Camp Street, New Orleans, LA 70130, Graham L. Bosworth, LAW OFFICE OF GRAHAM BOSWORTH, LLC, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
Leon Cannizzaro, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY's OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Autumn A. Town, LAW OFFICE OF AUTUMN TOWN, LLC, 700 Camp Street, New Orleans, LA 70130, Graham L. Bosworth, LAW OFFICE OF GRAHAM BOSWORTH, LLC, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
Judge Dale N. Atkins
This is a criminal appeal on remand from the Louisiana Supreme Court ("Supreme Court"). Clifford Williams ("Defendant") was convicted by a jury of second degree murder of Ralphmon Green. The facts of this case—wherein the body of fifteen-year-old Ralphmon Green ("victim") was found unresponsive with a gunshot wound in his head in the 2100 block of Allen Street in New Orleans—were set forth by this Court in State of Louisiana v. Clifford Williams , 2018-0445 (La. App. 4 Cir. 2/27/19), 265 So.3d 902. For the reasons set forth below, the matter is remanded to the district court for the purpose of confirming that the verdict was non-unanimous.
The record reflects that the jury's polling slips in this matter were filed under sealed, R., pp. 288-291. However, the jury's polling slips were not provided in the record lodged with this Court.
PROCEDURAL BACKGROUND
On July 18, 2013, Defendant was indicted for second degree murder of the victim and entered a plea of not guilty. Following a two day trial, the jury returned a verdict finding Defendant guilty of second degree murder. The trial court subsequently sentenced Defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence.
On appeal, Defendant asserted four assignments of error: (1) the evidence was insufficient to support his conviction for second degree murder; (2) that he was prevented from presenting a defense because the trial court precluded the introduction of certain evidence; (3) that his rights under Fifth and Fourteenth Amendments of the United States Constitution were abridged by an incomplete record on appeal; and (4) that his sentence to life imprisonment without the benefit of parole, probation, or suspension of sentence was unconstitutionally excessive. This Court affirmed Defendant's conviction and sentence finding no merit to his assignment of errors. Thereafter, Defendant sought review by the Supreme Court. The Supreme Court granted Defendant's writ of certiorari, but ultimately affirmed Defendant's conviction and sentence. State v. Williams , 2019-00490 (La. 4/3/20), ––– So.3d ––––, 2020 WL 1671569.
However, on July 9, 2020, the Supreme Court granted Defendant's rehearing application "in response to defendant's newly raised assertion the jury's verdict was not unanimous." State of Louisiana v. Clifford Williams , 2019-00490, p. 1 (La. 7/9/20), 298 So.3d 151 (Mem). The Supreme Court remanded the matter for this Court to conduct a new error patent review pursuant to the United States Supreme Court's ruling in Ramos v. Louisiana , ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). Id . In particular, the Supreme Court held:
The matter is remanded to the court of appeal 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). If the non-unanimous jury claim 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).
Id.
ERRORS PATENT
Since this matter was pending direct review before the Supreme Court, the holding of Ramos applies in this matter. See Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d. 649 (1987). However, the record before us is unclear as it relates to the jury's verdict count. The record does not contain the sentencing transcript. A review of the trial transcripts reflects that no polling of the jury took place when the verdict was rendered and the minute entry does not reflect the verdict count.
The record reflects that the jury polling slips were sealed in the district court's records, but was not lodged before this Court. To determine whether the jury's verdict was non-unanimous, we ordered the State and Defendant to file supplemental briefs addressing the issue. Additionally, we ordered the parties and the Clerk of Criminal District Court for Orleans Parish to supplement the record before this Court with the jury's polling slips. However, the record has not been supplemented with jury's polling slips, nor has the issue been sufficiently briefed for us to determine whether the jury's verdict was non-unanimous.
R., pp.288-291.
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In State v. Fortune , 2019-0868 (La. App. 4 Cir. 8/12/20), ––– So.3d ––––, 2020 WL 4679040, this Court addressed a similar issue. In Fortune , the defendant filed an appeal arguing that his conviction by a non-unanimous jury was unconstitutional. This Court noted that the appellate record was unclear as to whether the jury's verdict was non-unanimous. In particular, this Court noted that "the only evidence presented of the 10-2 verdict were the representations by the defense counsel and the prosecutor at sentencing." Fortune , 2019-0868, ––– So.3d ––––, ––––, 2020 WL 4679040, *1. As such, this Court remanded the matter to the district court with instructions to review the record to determine whether the verdict was non-unanimous. This Court further ordered the district court file a per curiam "addressing the Ramos issue and stating the outcome of its review." Id.
In this matter, we find the Fortune's Court course of action appropriate. Unlike in Fortune , there is no evidence in the record before this Court that reveals whether the jury verdict was non-unanimous. Thus, we remand this matter to the district court.
DECREE
For the foregoing reasons, we remand this matter to the district court with instructions to conduct a review for the purpose of confirming whether the jury's verdict was non-unanimous. Once the district court has conducted its review, the district court shall file a per curiam within ten days of this ruling to address the Ramos issue and providing the outcome of its review.