State v. Thompson

• Decision Date: 16 April 2021
• Docket Number: 2020 KA 0023
• Citation: 324 So.3d 113
• Parties: STATE of Louisiana v. Carl THOMPSON, II
• Court: Court of Appeal of Louisiana — District of US

324 So.3d 113

STATE of Louisiana

v.Carl THOMPSON, II

2020 KA 0023

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: APRIL 16, 2021

Hillar C. Moore, III, Cristopher J.M. Casler, Baton Rouge, LA, Counsel for Appellee, State of Louisiana

Cynthia Meyer, New Orleans, LA, Counsel for Defendant/Appellant, Carl Thompson, II

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WHIPPLE, C.J.

Defendant, Carl Thompson, II, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:27 and LSA-R.S. 14:30.1. He pled not guilty. After a trial by jury, defendant was found guilty as charged. The trial court imposed a sentence of forty-five years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals. For the following reasons, we affirm the conviction and sentence.

FACTS

On the morning of February 22, 2017, defendant was at the home of the victim, Angela Gabriel. Gabriel is the mother of defendant's two sons, and had been in a relationship with defendant for several years. Their youngest son had recently returned from an emergency room visit for bronchitis, and defendant was assisting Gabriel in caring for him. Defendant and Gabriel began to argue over how to care for the child. Because Gabriel had a meeting later that morning, she entered the bathroom to take a bath.

Gabriel testified that after hearing defendant say, "I just wish you would shut up, just shut up sometimes[,]" defendant shot her several times while she was in the bathtub. Defendant left the bathroom, came back in with a cell phone, and told Gabriel, "look what you made me do, Angie." Gabriel asked him to dial 911, which defendant did. Otherwise, Gabriel did not recall defendant making any attempt to help her, except as she directed. Defendant let the water out of the bathtub when asked by Gabriel. Emergency personnel eventually arrived and took Gabriel to the emergency room, where she was treated for several gunshot wounds to the shoulder, chest, and back. Six bullet casings were recovered from the crime scene. The firearm used in the shooting was registered to defendant. DNA testing of a swab from the firearm revealed defendant could not be excluded as a major contributor of DNA found on the gun. The shooting left Gabriel partially paralyzed.

Defendant testified at trial. Defendant explained that he is a diabetic, and at the time of the shooting, he had only recently begun taking insulin again. He also explained that he and Gabriel did not live together, but that he was at her residence with a gun that day because his eight-year-old son had asked him to be there. He testified that he and Gabriel had an argument that morning, which became increasingly heated. Defendant testified, "[a]nd in a flash — I don't even remember picking that gun up — I went from standing there looking down at the gun to in the doorway squeezing." Defendant testified he kept pulling the trigger until it was "going click, click, click." Soon thereafter, he "snapped out of it[,]" realized what he had done, and began to repeatedly apologize to Gabriel. Defendant explained that following the call to 911, he left the house because as a trained fireman, he knew police would not enter the house if he was still inside when they arrived. After walking out of the house, he was arrested by responding officers. Defendant explained Gabriel's screaming "was just something [he] couldn't handle[,]" and that he "wanted the screaming to stop."

On cross-examination, defendant claimed he rendered aid to Gabriel, but he responded, "I don't guess. I don't know," when it was stated that he did not have any blood on his hands or clothes. He also acknowledged that although he had medication, he had not taken any on the day of the shooting. Defendant explained that he did not remember seeing Gabriel in the tub, "because [he] physically just saw a white cloud" when he began shooting.

DISCUSSION

Assignment of Error Number One Defective Jury Venire

In his first assignment of error, defendant argues he was denied due process where the jury venire in East Baton Rouge Parish was defectively constituted. Citing the Louisiana Supreme Court's recent decision in State v. Cannon, 2019-590 (La. 4/18/19), 267 So. 3d 585 (per curiam), defendant argues his jury venire was made deficient by the same process and was not a fair cross-section of the community, where those born after June 2, 1993, were excluded from the jury pool. Consequently, defendant seeks to have his conviction vacated, and the case remanded for a new trial before a jury selected from a new, properly constituted venire. The State notes defendant failed to file a motion to quash before trial, thus waiving the issue.

The Louisiana Supreme Court held in Cannon, 267 So. 3d at 585-586 :

Defendant has shown that, under the system employed in East Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on the jury, were never given an opportunity to serve, because their names were excluded from the general venire as a result of a significant error in the process by which the general venire was composed. That exclusion resulted in a general venire that was improperly constituted under Code of Criminal Procedure articles 401 et seq. and Louisiana Constitutional Articles I, § 3 ("No person shall be denied the equal protection of the laws.") and V, § 33 ("A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled."). Accordingly, we grant defendant's application to reverse the rulings of the courts below, grant defendant's motion to quash the general venire, and remand to the district court for further proceedings so that a petit jury can be chosen from a general venire that is selected according to law. See State v. Jacko , 444 So.2d 1185 (La. 1984) ; State v. Procell , 332 So.2d 814 (La. 1976).

There is little question defendant's jury was assembled from the same venire the Louisiana Supreme Court found defective in Cannon; however, in State v. Smith, 2017-1333 (La. App. 1st Cir. 2/21/18), 2018 WL 1007350, at *4, (unpublished), writ denied, 2018-0405 (La. 2/18/19), 265 So. 3d 771, this court noted:

The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. C.Cr.P. art. 532(9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C.Cr.P. arts. 521, 532(9), and 535(C) ; see also State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 39, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire's composition. Any grounds for that potential motion were waived. See La. C.Cr.P. art. 535(D).

Herein, defendant did not file such a pretrial motion to quash or raise the issue before voir dire began, and did not raise the issue until the instant appeal. See generally LSA-C.Cr.P. art. 841 ; State v. Thibodeaux, 2016-0994 (La. 10/27/17), 227 So. 3d 811, 812 (per curiam) (citing Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So. 2d 714, 725, cert. denied sub nom., Allstate Insurance Co. v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S. Ct. 2165, 128 L. Ed. 2d 887 (1994) ). Accordingly, defendant's claim of a defective jury venire is not properly before the court and is denied as waived. See State v. Thomas, 2019-0409 (La. App. 1st Cir. 10/25/19), 289 So. 3d 1030, 1044, writ granted in part and remanded on other grounds, 2019-01819 (La. 6/22/20), 297 So. 3d 727 (per curiam).¹

Assignment of Error Number Two Ineffective Assistance of Counsel

In his second assignment of error, defendant contends he received ineffective assistance of counsel, where counsel failed to request the jury be polled as to its verdict. Defendant cites the recent United States Supreme Court's decision in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), where the Court found Louisiana's non-unanimous jury verdict requirement to be unconstitutional. However, because counsel did not poll the jury and its verdict was otherwise unrecorded, defendant is precluded from raising the issue on appeal, even on error patent review. The State argues that the underlying claim was waived by trial counsel's failure to make a contemporaneous objection or raise the issue below, and that defendant provides nothing to suggest the jury's verdict was anything but unanimous.² Consequently, the State asserts defendant fails to show the prejudice required to succeed in an ineffectiveness claim.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the district court rather than on appeal. This is because post-conviction relief provides the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. See State v. Miller, 2015-1031 (La. App. 1st Cir. 12/23/15), 185 So. 3d 811. 815, writ denied, 2016-0152 (La. 1/23/17), 215 So. 3d 681. However, when the record is sufficient, as here, this court may resolve this issue on direct appeal. State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1209, 1217.

A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to establish that his trial attorney was ineffective, defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Seco...