The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
J rc
2021 KA 0533
STATE OF LOUISIANA
VERSUS
CURTIS BROWN
JUDGMENT RENDERED: DEC 2 2 2021
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Appealed from
The Nineteenth Judicial District Court
Parish of East Baton Rouge • State of Louisiana
Docket Number 03- 17- 0595 • Section 5
The Honorable Tarvald Smith, Presiding Judge
Prentice L. White COUNSEL FOR APPELLANT
Louisiana Appellate Project DEFENDANT— Curtis Brown
Baton Rouge, Louisiana
Allison Miller Rutzen COUNSEL FOR APPELLEE
Assistant District Attorney State of Louisiana
Hillar C. Moore
District Attorney
Baton Rouge, Louisiana
BEFORE: MCCLENDON, WELCH9 AND THERIOT, JJ.
WELCH, J.
The Grand Jury of the Parish of East Baton Rouge, State of Louisiana,
charged the defendant, Curtis Brown, by grand jury indictment with second degree
murder ( count one), a violation of La. R. S. 14: 30. 1, and armed robbery ( count
two), a violation of La. R. S. 14: 64. The defendant pled not guilty to both counts.
After a trial by jury, the jury found the defendant guilty as charged on both counts.'
The trial court sentenced the defendant to life imprisonment at hard labor without
the benefit of probation, parole, or suspension of sentence on count one, and to
sixty years imprisonment at hard labor without the benefit of probation, parole, or
suspension of sentence on count two.
The defendant now appeals, assigning error to the constitutionality of his
conviction on count two by a non -unanimous jury verdict and the trial court' s
acceptance of the verdict. The defendant does not challenge the conviction or
sentence on count one. For the following reasons, we affirm the conviction and
sentence on count one, set aside the conviction and sentence on count two, and
remand for further proceedings.
CONSTITUTIONALITY OF THE
NON -UNANIMOUS JURY VERDICT ON COUNT TWO
In the sole assignment of error, the defendant points out that the verdict on
count two was not unanimous. Citing Ramos v. Louisiana, U.S. , 140 S.
Ct. 1390, 206 L. Ed. 2d 583 ( 2020), the defendant contends that while the trial
court had the legal authority to accept the verdict at the time it was returned, the
verdict must now be reversed, and the case must be remanded for a new trial. The
defendant notes that while the issue was not preserved for appellate review, such
errors have been found reviewable by Louisiana appellate courts despite the
absence of a contemporaneous objection at the trial court level. In its appellee
1 As discussed herein, while the verdict on count one was unanimous, the verdict on count two
was 10 -to -2.
2
brief, the State agrees that the conviction on count two should be set aside and that
the defendant is entitled to a new trial on count two only.
In Ramos, 140 S. Ct. at 1397, the United States Supreme Court overruled
Apodaca v. Oregon,2 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972). The
Ramos Court held that the right to a jury trial under the Sixth Amendment of the
United States Constitution, incorporated against the States by way of the
Fourteenth Amendment of the United States Constitution, requires a unanimous
verdict to convict a defendant of a serious offense. The Ramos Court further
indicated that the ruling applied to those defendants convicted of felonies by non -
unanimous verdicts whose cases are still pending on direct appeal. Ramos, 140 S.
Ct. at 1406. Thus, where the defendant' s conviction was not final when Ramos
was decided, the holding of Ramos applies. Ramos, 140 S. Ct. at 1406. See also
State v. Cohen, 2019- 00949 ( La. 1/ 27/ 21), 315 So. 3d 202, 203 ( per curiam)
wherein the court observed that the defendant' s appeal " was pending on direct
review when Ramos v. Louisiana was decided, and therefore the holding of
Ramos applies.").
Herein, the defendant did not object to the verdict, nor did he challenge the
constitutionality of the verdict in the trial court below. However, the Louisiana
Supreme Court has mandated that appellate courts consider the constitutionality of
the verdict on patent error review, whether or not the issue was preserved in the
trial court. State v. Curry, 2019- 01723 ( La. 6/ 3/ 20), 296 So. 3d 1030 ( per
curiam); State v. Cagler, 2018- 02015 ( La. 6/ 3/ 20), 296 So. 3d 1017 ( per curiam).
Further, the jury' s verdict is part of the pleadings and proceedings that this court
must review for errors patent pursuant to La. C. Cr.P. art. 920( 2). State v. Keys,
328 So. 2d 154, 157 ( La. 1976); State v. Anderson, 2017- 0927 ( La. App. 1St Cir.
2
Oregon' s non -unanimous jury verdict provision of its state constitution was challenged in
Apodaca. The case Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152
1972), which was decided with Apodaca, upheld Louisiana' s then -existing constitutional and
statutory provisions allowing nine -to -three jury verdicts in criminal cases.
3
4/ 6/ 18), 248 So. 3d 415, 418- 19, writ denied, 2018- 0738 ( La. 3/ 6/ 19), 266 So. 3d
A written jury poll was conducted in this matter, and the polling results were
ordered filed into the record. The polling slips and the trial transcript show that the
jury unanimously found the defendant guilty as charged on count one but voted 10 -
to -2 in reaching a verdict of guilty as charged on count two. Accordingly, we find
merit in the assignment of error. As the verdict was non -unanimous, the
conviction and sentence on count two must be vacated, and this case remanded to
the trial court for further proceedings.
CONCLUSION
For all of the above and foregoing reasons, the defendant' s conviction and
sentence on count one is affirmed, his conviction and sentence on count two is
vacated, and this matter is remanded to the trial court for further proceedings.
CONVICTION AND SENTENCE ON COUNT ONE AFFIRMED;
CONVICTION AND SENTENCE ON COUNT TWO VACATED;
REMANDED WITH INSTRUCTIONS.
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