State v. Vince
| Decision Date | 08 October 2021 |
| Docket Number | 2020 KA 1054 |
| Parties | STATE OF LOUISIANA v. JERRY LAVELLE VINCE |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 603564 Honorable Scott C. Gardner, Judge Presiding
Warren L. Montgomery District Attorney J. Bryant Clark, Jr Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana
Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant/Appellant Jerry Lavelle Vince
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
The defendant, Jerry Lavelle Vince, was charged by bill of information with molestation of a juvenile by virtue of a position of control or supervision (victim under the age of thirteen), a violation of La. R.S. 14:81.2 [1] (count one), and sexual battery (victim under the age of thirteen), a violation of La. R.S. 14:43.1(C)(2) (count two). A jury found the defendant guilty as charged on both counts. On each count the trial court sentenced the defendant to ninety-nine years imprisonment at hard labor, with twenty-five years to be served without the benefit of probation, parole, or suspension of sentence, to run concurrently. The trial court denied a motion to reconsider sentence filed by the defendant. The defendant now appeals, assigning error in a counseled brief to the denial of his motion to reconsider sentence and the constitutionality of the sentences. In a pro se brief, he further assigns error to the denial of his motion for a jury instruction requiring unanimous jury verdicts and to the admission of trial testimony regarding other inappropriate acts by the defendant. For the following reasons, we affirm the convictions and sentences.
Sometime in 2007 or 2008, the defendant married L.B. and became the stepfather of L.P. (the victim), L.B.'s daughter from a previous relationship.[2] L.P. was approximately four years old at the beginning of the marriage and approximately ten to eleven years old when the marriage ended six to seven years later. In 2011 or 2012, the family moved to a home on Magnolia Drive in Covington, where they lived until L.B. and the defendant separated, about two years later.
L.P., who turned sixteen years old during the three-day trial, testified at trial and participated in a pretrial interview at the Kid's Hub Child Advocacy Center. According to L.P., while they were living on Magnolia Drive, on multiple occasions, the defendant used his private part to touch and rub her private part, used his hand to touch and rub her private area, and made her touch and rub his private area with her hand. She stated that the touching was underneath her clothing and the defendant's clothing, and she noted that the defendant would pull down her lower clothing and panties. She used a diagram to identify her private part or area as her "vagina" and the defendant's private part as his "penis." She also stated that she felt a "nasty", "clear white" substance on the defendant's penis when she was made to touch him. L.P. stated that the acts began occurring when she was about six or seven years old, that the last incident occurred when she was about eight or nine years old, and that the defendant would tell her not to tell her mother about the incidents. When she was fourteen years old, L.P. told a school counselor about the incidents. The State also presented testimony to show the defendant committed inappropriate acts involving three other children when they were under the age of seventeen.
In pro se assignment of error number one, the defendant concedes that at the time of the trial in this case, La. C.Cr.P. art. 782 allowed for the jury to be instructed that he could be convicted by a less than unanimous vote. He notes, however, that prior to trial, his counsel filed a motion requesting the trial court to instruct the jury that any verdict must be returned unanimously. The trial court denied his motion and subsequently instructed the jury that ten concurring jurors were required to reach a verdict. Based on the non-unanimous jury concurrence instruction, the defendant now argues that he is entitled to a new trial at which the jurors are instructed and required to reach a unanimous verdict to convict. He contends that his trial was unconstitutionally and structurally infirm "regardless of the precise vote count ultimately rendered."
The defendant argues that in light of the United States Supreme Court's decision in Ramos v. Louisiana, __ U.S.__, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), it is now clear the trial court erred in denying his request to require the jurors to return unanimous verdicts.[3] The defendant concedes that the jury verdicts were unanimous in this case. However, he suggests that the last two jurors to vote only acquiesced in the guilty verdicts, as a concurrence of ten jurors had already been reached, and thus, their votes would have no effect on the verdicts. The defendant alternatively argues that the non-unanimous jury instruction constituted structural error in the same way that a flawed reasonable doubt instruction does. In this regard, the defendant notes that all persons convicted when the jury is given a flawed reasonable doubt instruction are entitled to a new trial without showing that the guilty verdict rendered was actually attributable to the flawed instruction. He contends that the error in this case is similarly not subject to a harmless error analysis.
In the proceedings below, the defendant filed a "Motion for a Jury Instruction Requiring a Unanimous Jury Verdict." Therein, he noted the amendment to the Louisiana constitution requiring unanimous jury verdicts to convict some hard felony offenders, while requiring a ten of twelve concurrence to convict others.[4] The defendant argued that the "double standard" was a "per se Constitutional violation" and asked the trial court to provide a remedy by instruction or by granting a new trial in the event of a non-unanimous jury verdict. In the alternative, the defendant argued that a non-unanimous verdict would deprive him of equal protection of the law and due process of law in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 2 and 3 of the Louisiana Constitution. As previously stated, the trial court denied the motion.
Herein the verdicts convicting the defendant of serious offenses were, in fact, unanimous on both counts. Accordingly, Ramos is inapplicable to the instant case, as the opinion indicates the ruling applies to "defendants convicted of felonies by nonunanimous verdicts whose cases are still pending on direct appeal." See Ramos, 140 S.Ct. at 1406. (emphasis added).
Moreover, we disagree with the defendant's assertion that the non-unanimous jury instruction is a structural error. In State v. Langley, 06-1041, pp. 5-6 (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 distinguished between "trial errors," which may be reviewed for harmless error, and "structural errors," which defy analysis by harmless error standards. It stated that 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, 06-1041 at 11, 958 So.2d at 1167. The Langley Court stated, "[w]hen the Supreme Court speaks of a structural defect, it means that 'the entire conduct of the trial from beginning to end is obviously affected by the [error].'" Langley, 06-1041 at 12, 958 So.2d at 1167.
Initially, we note that the assigned issue, unlike a defective reasonable doubt instruction, does not fall within any of the six classes of cases enumerated by the Langley Court.[5] Further, in addition to the jury instruction being based on the law in effect at the time, the jury returned unanimous guilty verdicts despite the trial court's instruction that a concurrence often was needed to reach a verdict. Thus, as unanimous verdicts were returned in this matter, the denial of the defendant's motion for a unanimous jury verdict instruction did not affect the substantial rights of the defendant. See La. C.Cr.P. art. 921; State v. Magee, 20-0096, pp. 8-9 (La.App. 1st Cir. 11/6/20), 2020 WL 6538506, at *4 (unpublished); State v. Williams, 20-46, pp. 61-62 (La.App. 5th Cir. 12/30/20), 308 So.3d 791, 836-37, writ denied, 21-00316 (La. 5/25/21), 316 So.3d 2; State v. Primeaux, 19-841, pp. 20-21 (La.App. 3d Cir. 10/21/20), 305 So.3d 1014, 1026-27, writ denied, 21-00099 (La. 4/20/21), 313 So.3d 1256. Thus, we find no merit in pro se assignment of error number one.
In pro se assignment of error number two, the defendant argues that the trial court abused its discretion in permitting the State to adduce testimony, pursuant to La. C.E. art. 412.2, from three witnesses regarding inappropriate behavior and actions by the defendant occurring when they were minors. He notes that he was tasked with having to present a defense to the instant accusations along with three other sets of accusations, which he contends were not prosecuted due to lack of evidence or an issue with credibility. The defendant argues that "[t]his court must determine that these 'other crimes' were submitted to the jury simply to inflame the jury and to misrepresent [him] as a 'bad person' in general." He claims that as there was insufficient evidence to pursue a...
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