State v. Hicks

• Decision Date: 10 May 2023
• Docket Number: 55,010-KA
• Parties: STATE OF LOUISIANA Appellee v. DEMARIOUS HICKS Appellant
• Court: Court of Appeal of Louisiana — District of US

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STATE OF LOUISIANA Appellee
v.
DEMARIOUS HICKS Appellant

No. 55,010-KA

Court of Appeals of Louisiana, Second Circuit

May 10, 2023

Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana Trial Court No. 185,577 Honorable Laurie Reis Brister, Judge

LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

JAMES EDWARD PAXTON District Attorney ANITA TENNANT MACK EDWIN MOBERLEY BRADLEY T. SLOANE Assistant District Attorneys Counsel for Appellee

Before COX, THOMPSON, and HUNTER, JJ.

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COX, J.

This criminal appeal arises from the Sixth Judicial District Court of Madison Parish, Louisiana. The defendant, Demarious Hicks ("Hicks") was convicted by a jury of the second degree murder of Rodrick Bowman ("Bowman") and the attempted second degree murder of Trashaun Smith ("Smith"). Hicks was sentenced to, life imprisonment at hard labor for the death of Bowman, and 50 years at hard labor for the attempted murder of Smith. Both sentences were to be served consecutively without benefit of parole, probation, or suspension of sentence. For the following reasons, we vacate Hicks' convictions and sentences and remand the matter for a new trial.

FACTS

On August 9, 2017, Madison Parish police officers were dispatched to the Madison and Wyche Apartments in Tallulah, Louisiana, in response to a shooting. Evidence at trial established that when officers arrived at the apartment complexes, they discovered that two men, Bowman and Smith, had been shot by a single bullet. Officers learned that Bowman sustained a fatal gunshot wound in the back of his head and that the same bullet passed through Bowman and struck Smith in the chest. Smith was later transported to a hospital in Mississippi with life-threatening injuries. Following a series of interviews with potential witnesses, officers arrested Hicks on August 10, 2017.

On October 18, 2017, the State filed a bill of indictment, charging Hicks with the second degree murder of Bowman and attempted second degree murder of Smith, and a grand jury returned a true bill as to both counts. The following day, Hicks was arraigned and entered a plea of not

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guilty on both counts. Following a litany of pretrial motions, a jury trial commenced on November 15, 2021.

After closing arguments and jury instructions, Hicks was found guilty as charged. Neither the State nor defense counsel requested the jury be polled. On January 13, 2022, Hicks filed a motion for new trial and postverdict judgment of acquittal, arguing insufficiency of evidence; namely, that the credibility of certain witnesses cast doubt as to Hicks' guilt. Both motions were denied prior to sentencing and defense counsel waived all sentencing delays. At sentencing, the trial court noted that Hicks made several derogatory remarks after the verdict was rendered, following the victim impact statement, and consistently made remarks after the trial court recited its consideration of the 894.1(b) factors. Thereafter, the trial court sentenced Hicks to life imprisonment at hard labor for the death of Bowman, and 50 years at hard labor for the attempted murder of Smith. Both sentences were to be served consecutively without benefit of parole, probation, or suspension of sentence.

Hicks now appeals his conviction and sentence.

DISCUSSION

As a precursor to his five assignments of error, Hicks argues that the trial court erred in instructing the jury that 10 of the 12 jurors were needed to reach a verdict and that his conviction should be set aside and remanded for a new trial. In citing Ramos v. Louisiana, 590 U.S.----, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), Hicks notes that because his trial occurred in November 2021, after Ramos, supra was rendered, a unanimous jury verdict was required to convict him. We agree.

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In Ramos, supra, the United States Supreme Court expressly held that the right to a jury trial under the Sixth Amendment to the U.S. Constitution, incorporated against the states by way of the Fourteenth Amendment to the U.S. Constitution, requires a unanimous verdict to convict a defendant of a serious offense in both federal and state courts. The Court concluded:

Wherever we might look to determine what the term "trial by an impartial jury trial" meant at the time of the Sixth Amendment's adoption-whether it's the common law, state practices in the founding era, or opinions and treatises written soon afterward-the answer is unmistakable A jury must reach a unanimous verdict in order to convict.

Ramos, supra, at 1395.

The Louisiana Supreme Court subsequently concluded that a less than unanimous jury verdict on a matter of direct appeal is error patent. State v. Richardson, 20-00175 (La. 6/3/20), 296 So.3d 1050, citing Griffith v. Kentucky, 479 U.S. 314, at 328, 107 S.Ct. 708, at 716, 93 L.Ed.2d 649 (1987).

Although the offense in the present matter occurred in 2017, trial did not commence until November 2021, at which time, Ramos, supra, had long since been rendered and positioned as the governing precedent over verdicts in jury trials. Therefore, the State's assertion that La.C.Cr.P. art. 782 is applicable, is without merit. Furthermore, Hicks argues that the trial court erred in instructing the jury that only 10 jurors were needed to reach a verdict. In citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), in which the Louisiana Supreme Court held that an erroneous jury instruction as to reasonable doubt was considered a structural error, Hicks similarly contends that the jury instruction in this case was a

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structural error that warrants his convictions and sentences to be vacated and remanded for a new trial.

In State v. Langley, 06-1041 (La. 5/22/07), 958 So.2d 1160, 1164, cert. denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007), the Louisiana Supreme Court recognized a distinction between "trial errors," which may be reviewed for harmless error, and "structural errors," which are not subject to harmless error analysis. Structural errors deprive a defendant of basic protections without which a criminal trial cannot reliably serve its function to determine guilt or innocence. State v. Chapman, 54,590 (La.App. 2 Cir. 11/16/22), 351 So.3d 876. However, structural defects occur in only "a very limited class of cases," which include: (1) the total deprivation of the right to counsel; (2) a biased trial judge; (3) unlawful exclusion of grand jurors of defendant's race; (4) denial of self-representation at trial; (5) denial of a public trial; and (6) a defective reasonable doubt instruction. Langley, supra.

This issue is not one of first impression, as courts have previously addressed structural errors as it relates to an error in jury instructions concerning unanimous jury verdicts. For example, in State v. Anthony, 17372 (La.App. 5 Cir. 12/30/20), 309 So.3d 912, writ denied, 21-176 (La. 10/12/21), 325 So.3d 1067, the defendant argued, in part, that he was entitled to a new trial because the jurors were instructed that only 10 members were required to reach a verdict; the defendant asserted that the nonunanimous jury instruction constituted a structural error in the same way that Louisiana's unconstitutional jury instruction regarding the State's burden of proof constituted a structural error. The Fifth Circuit held that the jury instruction was not a structural error because it was not one of the

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limited classes of errors as defined in Langley, supra, the instruction was in accordance with the law at the time of trial, and the record reflected that the defendant was unanimously convicted on all counts.

Similarly, in State v. Williams, 20-46 (La.App. 5 Cir. 12/30/20), 308 So.3d 791, in which the defendant asserted that the jury instructions for a consensus of 10 jurors was a structural error, the Fifth Circuit noted again that the error in instruction did not fall within any of the six enumerated classes of cases and the defendant's trial occurred prior to Ramos, supra, such that the jurors were instructed in accordance with the law at the time of trial. Moreover, the court found that the verdict was unaffected by the error as the record reflected that the defendant was convicted unanimously.

In State v. Primeaux, 19-841 (La.App. 3 Cir. 10/21/20), 305 So.3d 1014, in which the defendant relied on Sullivan, supra, to assert that a jury instruction requiring a concurrence of ten to reach a verdict was a structural error, the Third Circuit ultimately concluded that an error in jury instructions that a nonunanimous verdict sufficed was harmless where a unanimous verdict was returned. Finally, in State v. Dosher, 20-574 (La.App. 3 Cir. 10/27/21), 329 So.3d 914, the Third Circuit distinguished a jury instruction that a concurrence of ten was needed to reach a verdict from the erroneous jury instruction addressed in Sullivan, supra. The court provided:

In Sullivan, the trial court gave an incorrect jury instruction on the definition of reasonable doubt. The Supreme Court ultimately found that such an erroneous instruction made it impossible for the jury to reach a valid verdict and that any review of the ruling would be pure speculation. Further, the jury instruction given in Sullivan was an incorrect statement of law as it was understood at the time, whereas the jury instruction Defendant complains of

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