State v. Miller

• Court: Court of Appeal of Louisiana
• Writing for the Court: THIBODEAUX, Chief Judge.
• Citation: State v. Miller, 269 So.3d 806 (La. App. 2019)
• Decision Date: 27 March 2019
• Docket Number: 18-639
• Parties: STATE of Louisiana v. Edwin Albert MILLER

269 So.3d 806

STATE of Louisiana

v.Edwin Albert MILLER

18-639

Court of Appeal of Louisiana, Third Circuit.

March 27, 2019

Phillip Terrell, Jr., District Attorney – 9^th Judicial District, Numa V. Metoyer, III, Assistant District Attorney – 9^th Judicial District, Amani P. Augustine, Assistant District Attorney – 9^th Judicial District, P.O. Dristrict 7358, Alexandria, LA 71306, Telephone: (318) 473-6650, COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman, Louisiana Appellate Project, P.O. Box 1641, Lake Charles, LA 70602, Telephone: (337) 491-0570, COUNSEL FOR: Defendant/Appellant - Edwin Albert Miller

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.

THIBODEAUX, Chief Judge.

Defendant Edwin Albert Miller was charged with one count of stalking, second offense, a violation of La.R.S. 14:40.2(4). After a twelve-person jury unanimously found him guilty of the offense, he was sentenced to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served. On appeal, Defendant asserts that his defense counsel's failure to object to the impaneling of a twelve-person jury in the trial of a six-person-jury offense constitutes a claim for ineffective assistance of counsel, and thus requires a reversal of his conviction. He additionally argues that the trial court erred in denying his challenges for cause. Finally, Defendant challenges his sentence as unconstitutionally excessive.

For the following reasons, we affirm Defendant's conviction and sentence.

I.ISSUES

We must decide:

(1) whether the erroneous trial by a jury of twelve instead of a properly-constituted jury of six is reversible error;

(2) whether the trial court erred in denying Defendant's challenges for cause; and

(3) whether the sentence imposed by the trial court was unconstitutionally excessive, in violation of La.Const. art. 1, § 20.

II.FACTS AND PROCEDURAL HISTORY

In 2009, Defendant was arrested and pleaded guilty to stalking M.S.,¹ a violation of La.R.S. 14:40.2. He was initially ordered to pay a $ 1,000 fine and serve a one-year sentence in Rapides Parish jail. However, the sentence was suspended, and Defendant was thereafter placed on supervised probation for two years.

The matter giving rise to the instant appeal occurred in 2016, when Defendant was charged by Bill of Information with stalking, second offense, a violation of La.R.S. 14:40.2(4), alleging that he did willfully, maliciously, and repeatedly follow and/or harass and threaten M.S. again with the intent to place her in reasonable fear of serious bodily harm. He entered a plea of not guilty to the offense.

A jury trial was held thereafter. Before conducting voir dire , the court noted that it was going "to select a twelve-person jury for a criminal case." After a panel of twelve jurors had been accepted and sworn, defense counsel then objected to the composition of the jury by noting that under La.Code Crim.P. art. 782, a twelve-person jury is only appropriate when the punishment is necessarily confinement at hard labor, whereas a six-person jury is appropriate when the punishment may be confinement at hard labor instead. Because stalking, second offense, is punishable "with or without hard labor" under La.RS. 14:40.2(4), defense counsel argued that Defendant's case ought to be heard by a six-person jury. The trial court, however, denied the defense's request for a six-person jury, and twelve jurors were accepted and sworn to the jury.

During voir dire , each side was granted twelve peremptory challenges. Defense counsel raised several challenges for cause with respect to prospective jurors, and they were denied by the trial court. The case was then decided before a panel of twelve jurors, which unanimously found Defendant guilty of the offense charged.

In analyzing the sentencing factors of La.Code Crim.P. art. 894.1, the trial court concluded from the evidence that Defendant was a most egregious offender and thus sentenced him to serve a maximum term of twenty years imprisonment, without the benefit of parole, probation, or suspension of sentence, with credit for time served. A Motion to Reconsider Sentence was denied.

On appeal, Defendant now argues that defense counsel's failure to object to the twelve-person jury prior to the jury's swearing constitutes ineffective assistance of counsel such that Defendant's conviction should be reversed. Further, he asserts that the trial court erroneously denied his challenges for cause. Finally, Defendant challenges his sentence as unconstitutionally excessive.

III.LAW AND DISCUSSION

Ineffective Assistance of Counsel

Defendant asserts a claim for ineffective assistance of counsel at trial. He contends that his defense counsel's failure to object to the impaneling of a twelve-person jury for a six-person offense constituted deficient performance of such a serious nature that prejudice must be presumed. As a result, Defendant argues that his conviction should be reversed.

At the outset, the issue of ineffective assistance of counsel is more appropriately addressed in an application for post-conviction relief filed before the trial court, where a full evidentiary hearing can be conducted. State ex rel. A.B. , 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where the record discloses sufficient evidence to rule on the merits of an ineffective assistance claim, an appellate court may consider the issues raised on appeal in the interests of judicial economy. Id.

Finding the record in this case sufficient,² we shall assess Defendant's claim of ineffective assistance of counsel under the two-part test established by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland analysis, Defendant must first demonstrate that his trial counsel's performance was deficient and that he was prejudiced by the deficiency.

Counsel's performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland , supra , 466 U.S. at 686, 104 S.Ct. at 2064. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Strickland , supra , 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow , 612 So.2d 191, 199 (La.App. 4 Cir. 1992).

This Court has recognized that if an alleged error falls "within the ambit of trial strategy" it does not "establish ineffective assistance of counsel." State v. Bienemy , 483 So.2d 1105 (La.App. 4 Cir. 1986). Moreover, as "opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel's trial decisions. Neither may an attorney's level of representation be determined by whether a particular strategy is successful." State v. Brooks , 505 So.2d 714, 724 (La.1987).

State v. Schexnaider , 03-144, p. 18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462 (quoting State v. Griffin , 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40 ).

Defendant cites as deficient performance his trial counsel's failure to object to a twelve-person jury where the charge of stalking, second offense imposes a permissive, rather than mandatory, punishment of confinement at hard labor. Louisiana Code of Criminal Procedure Article 782(A) states that "[c]ases 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." La.Code Crim.P. art. 782(A).³ In contrast, "[c]ases 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." Id. (emphasis added). The crime of stalking, second offense is punishable "with or without hard labor[.]" La.R.S. 14:40.2(B)(4). Notwithstanding any deference accorded to trial counsel's strategy, we submit that the case should have been tried before a jury of six, rather than twelve, veniremen.

While there is no doubt that an error occurred with respect to the size of the selected jury in this case, our supreme court has held that "the error in trying a six-person jury offense in a 12-person jury forum no longer constitutes a non-waivable structural defect in the proceedings, but ‘falls within the vast category of trial errors which are subject to harmless error analysis and which warrant reversal only where the defendant is actually prejudiced.’ " State v. Brown , 11-1044, p. 3 (La. 3/13/12), 85 So.3d 52, 53 (quoting State v. Jones , 05-226, p. 3 (La. 2/22/06), 922 So.2d 508, 511 ).

In light of the unanimous verdict reached by the twelve-juror panel, we cannot say that Defendant has been prejudiced in his case. But for counsel's failure to object to the composition of the jury, any six of the twelve jurors in this case would nevertheless have rendered a guilty verdict because all twelve jurors found Defendant guilty. In fact, Defendant received six additional factfinders than constitutionally mandated, and was thus afforded greater protection than required by law. Therefore, because the result of the proceeding would not have been any different had defense counsel objected prior to the acceptance of the jury, we find that the error of impaneling a twelve-person jury in the trial of a six-person offense was harmless. Accordingly, we find that Defendant was not actually prejudiced due to the errors of both defense counsel and the trial court.

Challenge for...