Relator, a pre-trial detainee charged with one count of first degree murder in violation of La. R.S. 14:30 and one count of armed robbery with a firearm in violation of La. R.S. 14:64.3, seeks review of the trial courts denial of his motion to waive jury trial and be tried by the court. As set forth below, we find the trial court did not err in denying relators motion.
FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2021, relator was arrested for several offenses, including first degree murder. Shortly thereafter, on March 10, 2021, the State filed notice “that for any charges for which the grand jury returns an indictment ․, the [s]tate will elect to forego capital punishment.”
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On June 17, 2021, an Orleans Parish Grand Jury returned a true bill charging relator with one count of first degree murder in violation of La. R.S. 14:30 and one count of armed robbery with a firearm in violation of La. R.S. 14:64.3. On March 16, 2022, relator filed a motion for a bench trial, seeking to waive his right to a trial by jury pursuant to the provisions of La. C.Cr.P. art. 780. On March 21, 2022, the State filed a memorandum in opposition to defendants motion to waive trial by jury. On April 20, 2022, the trial court, following oral argument, denied relators motion seeking to waive a jury trial. The court recognized that the Louisiana Supreme Court, in State v. Serigne, 2016-1034, pp. 6-7 (La. 12/6/17), 232 So.3d 1227, 1231, held that where the defendant did not face the prospect of the death penalty,
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he may validly waive a jury trial. However, the trial court distinguished that case from the matter at hand, finding that with respect to defendants first degree murder charge the state, at a later date, could change its mind and opt to seek the death penalty.
Following the trial courts ruling, relator lodged his objection; noticed his intent to take writs; and requested a return date. The trial court stayed the proceedings pending resolution of the writ and set a return date of May 19, 2022. On May 17, 2022, the trial court, pursuant to relators motion, extended the return date until June 2, 2022. Relator timely filed the writ application
DISCUSSION
The parties agree that the trial courts decision, is a legal determination and, as such, subject to a de novo standard of review.
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“Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.” La. C.Cr.P. art. 782 B. Similarly, La. C.Cr.P. art. 780 A permits trial by judge “for an offense other than one punishable by death.”
Louisiana Constitution Article I, § 17(A) provides, in pertinent part, that “[a] criminal case in which the punishment may be capital shall be tried before a jury of twelve persons ․” Similarly, La. C.Cr.P. art. 782 A states that “[a] case in which punishment may be capital shall be tried by a jury of twelve jurors ․”
The State, in its opposition, asserts that notwithstanding that it filed notice that it would not pursue the death penalty in connection with defendants first degree murder, because defendant was charged with a capital offense, the case must be tried before a jury. In support, the State cites State v. Goodley, 398 So.2d 1068, 1070-1071 (La. 1981), in which the Court held that a unanimous jury verdict was required to convict a defendant charged with a capital offense, even when the state stipulated that it would not seek the death penalty. The Court reasoned:
[T]he Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous [jury] verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.
Goodley, 398 So.2d at 1070–1071 (emphasis added).
A case relied upon by the defense in support of its position of entitlement to waive a jury trial is Serigne, 2016-1034, 232 So.3d 1227. In Serigne, the defendant was indicted for an aggravated rape committed during a period when that crime was punishable by death. Later, after the U.S. Supreme Court held the death penalty was unconstitutional for a non-homicide offense, the defendant waived his right to trial by jury. Following a bench trial, the defendant was convicted of aggravated rape. On appeal, this Court reversed the conviction after finding that the court erred by authorizing the waiver of a trial by jury because he had been charged with a capital offense even though the death penalty was not sought and was in fact an unconstitutional punishment by the time he went to trial. State v. Serigne, 2014-0379, p. 8 (La. App. 4 Cir. 5/2/16), 193 So.3d 297, 306 (“We find that binding Supreme Court and Fourth Circuit precedent requires a finding of reversible patent error as Lionel Serigne was charged by indictment with a capital offense and he was therefore precluded from waiving a jury trial.”) However, the Louisiana Supreme Court granted writs and reversed, determining that a defendant “who never faced the prospect of the death penalty” may validly waive his right to a jury trial. Serigne, 2016-1034, pp. 6-7, 232 So.3d at 1231.
As discussed below, Serigne may be distinguished from relators case. As an initial matter, relator “faced the prospect of the death penalty” when the State charged him with a capital offense, at least until the state notified the defense that it did not intend to seek that punishment.
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Moreover, in Serigne, as in other cases discussed below, the defendant was seeking reversal of his conviction based on the allegation that the trial court had erred in granting the pretrial motion he himself had filed concerning his preferred trier of fact.
As a general matter, there exists no right to a bench trial under the United States Constitution. State v. Bazile, 2012-2243, pp. 9-10 (La. 5/7/13), 144 So.3d 719, 728-729,
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citing U.S. Const. art. III, § 2, cl. 3 and United States v. Jackson, 390 U.S. 570, 584, 88 S.Ct. 1209, 1217-1218, 20 L.Ed.2d 138 (1968)(“It is true that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury.”).
In Louisiana, La. Const. art. I § 17 provides in pertinent part: “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict ․ Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.” (emphasis added). Finally, La. C.Cr.P. art. 780(A) similarly provides that “[a] defendant with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.” The plain language of our Constitution and the amended article suggests that a defendant has a conditional right to waive the right to a jury trial (so long as that defendant exercises that right forty-five days before trial, at which time such right ceases to exist (absent consent from the district attorney)), in accordance with La. Const. art. I, § 17(A) in all cases except those “punishable by death.” In this case, notwithstanding that the State has filed notice that it did not intend to seek the death penalty in this case, the charge is still a capital one insofar as it is “punishable by death,”
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and accordingly we find that the defendant cannot invoke Louisiana law to waive his right to a jury.
Like Serigne, the cases cited to by the defense recognizing the valid waiver of the right to a jury are ones in which the defendant waived the jury and then challenged the waiver (granted pursuant to his own motion) on appeal after the court convicted him, claiming in essence (and in hindsight) that he had been denied the right to a jury trial because the district court had granted his pretrial motion. See State v. Lewis, 2009-846, p. 8 (La. App. 3 Cir. 4/7/10), 33 So.3d 1046, 1054, writ denied, 2010-967 (La. 11/24/10), 50 So.3d 825 (rejecting claim that defendant could not waive a jury and holding “because the [s]tate did not pursue the death penalty, the [d]efendant would not be punished as a capital offender under [La.] C.Cr.P. Art. 782, thus allowing him to waive his right to trial by jury.”); State v. Singleton, 05-622, pp. 9-10 (La. App. 5 Cir. 1/31/06), 922 So.2d 647, 653 (“we find that since the state did not seek a capital verdict [on an aggravated rape charge], defendant was entitled to waive his right to a jury trial”).
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Those claims were rejected by the appellate courts, which found, on appeal, that the law authorized the waiver under the circumstances and accordingly upheld the defendants’ convictions by the bench. In essence, in such circumstances, the appellate courts denied those defendants a second bite at the apple in cases in which they, themselves, had waived a jury and been granted a trial at which the judge acted as fact finder.
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The relator has pointed to no cases in which an appellate court has reversed the district court in a pretrial setting based on the lower courts finding that the defendant could not waive -- and was thus “forced” to be tried by -- a jury.
Notably, however, our Supreme Court granted writs and reversed in a pretrial posture after the district court granted the defendant a bench trial within forty-five days of the originally-set trial date and the state objected. In State v. Landrieu, 2017-0950 (La. 6/9/17), 220 So.3d 732, the Court found that the district court had erred by granting a bench trial, notwithstanding that the case had moved to a different section of court and hence trial was not set to commence within forty-five days of the most-recent defense motion.
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The Court initially noted that as set out in Bazile, supra, a defendants right to waive a trial by jury was not “unbridled,” id., p. 1, 220 So.3d 732, and found that the district judges ruling granting the bench trial
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invited relitigation of earlier pretrial rulings, which went to the “heart of the policy considerations articulated in Bazile.” Id., p. 2, 220 So.3d at 733.
CONCLUSION
Notwithstanding the States notice that it would not pursue a death verdict, the charge remains “punishable” by death. To find reversible error stemming from the courts failure to authorize waiver of a jury in such a case would be tantamount to encouraging gamesmanship by the accused. Under these circumstances, we find no error in the trial courts denial of relators motion to waive jury trial and be tried by the court.
WRIT GRANTED, RELIEF DENIED
I respectfully dissent from the majoritys decision to deny the writ. I would grant the defendants writ application in that I find once the State provided notice that it would not seek the death penalty, thus electing to prosecute the first degree murder charge against Mr. Shallerhorn as a non-capital case, Mr. Shallerhorn was free to waive a jury trial.
La. R.S. 14:30(C)(2) provides if the State does not seek the death penalty, the provisions of La. C.Cr.P. art. 782 apply. In State v. Bishop, 10-1840, p. 5 (La. App. 1 Cir. 6/10/11), 68 So.3d 1197, 1201, the defendant was charged with four counts of first degree murder, and the State opted not to seek the death penalty. The First Circuit determined that La. R.S. 14:30(C)(2) “create[s] a hybrid capital/non-capital statute” granting the State authority to designate “a case as non-capital by opting to forego the possibility of a death penalty.” Id., 10-1840, p. 6, 68 So.3d at 1202. The First Circuit concluded that in cases where the state opted not to seek the death penalty, i.e., opted to prosecute first degree murder as a non-capital offense, the provisions of La. C.Cr.P. art 782(A), requiring a unanimous jury verdict
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, were not applicable. Id., 10-1840, p. 6-7, 68 So.3d at 1202. While the procedural posture of the instant case, a pretrial setting, distinguishes it, I agree with the reasoning in Bishop.
Further, a defendant “who has never faced the prospect of the death penalty” may validly waive his right to a jury trial.” State v. Serigne, 16-1034, p. 6-7 (La. 12/6/17), 232 So.3d 1227, 1231. The State filed noticed on March 10, 2021, that it would forgo capital punishment. On March 16, 2021, Mr. Shallerhorn filed a motion for a bench trial, seeking to waive his right to a jury trial. The trial court concluded that because the State could at a later date reverse course and opt to seek the death penalty, it could not grant the waiver of a jury trial. Although it is conceivable that the State could change its mind, in cases where such a possibility existed, the trial courts declined to find that the defendants could not waive their right to a jury trial based on the possibility that the State may change course and decide to pursue the death penalty. See State v. Lastrapes, 19-56 (La. App. 3 Cir. 10/2/19), 280 So.3d 679; also State v. Lewis, 09-846, p. 1-2 (La. App. 3 Cir. 4/7/10), 33 So.3d 1046, 1049-1050, writ denied, 10-967 (La. 11/24/10), 50 So.3d 825. Additionally, defense counsel indicates that at the pre-trial conference held on April 1, 2022, the State reiterated its position and offered to stipulate “for purposes of this issue that the State did not have any intention of seeking the death penalty in this case.”
Based on the foregoing, I find the requirement for a trial by jury in a capital case, pursuant to La. C.Cr.P. art. 782(A) does not apply to Mr. Shallerhorns case. Once the State filed its notice that it would not seek the death penalty, the State chose to prosecute the first degree murder charge as a non-capital case. Therefore, Mr. Shallerhorn was free to waive a jury trial as the requirement for a trial by jury in a capital case, pursuant to La. C.Cr.P. art. 782(A), no longer applied. For these reasons, I would grant the writ and reverse the trial courts denial of Mr. Shallerhorns motion to waive his right to trial by jury.
FOOTNOTES
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. Relator represents that at an April 1, 2022 pre-trial conference, “the [s]tate reiterated that its position remain[ed] the same and offered to stipulate for purposes of this issue that the [s]tate did not have any intention of seeking the death penalty in this case.”
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. Serigne involved an aggravated rape case and the U.S. Supreme Court, before the relators trial, held that the Eighth Amendment prohibited the death penalty for the rape of a child which did not result in death. See Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).
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. See also State v. Thompson, 2011-915, p. 14 (La. 5/8/12), 93 So.3d 553, 563 (citations omitted) (“Legal findings or conclusions of the trial court are reviewed de novo.”).
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. Indeed, defendant still arguably faces the prospect of the death penalty as the states notice that it did not intend to pursue capital punishment could presumably be withdrawn and a death verdict pursued.
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. In Bazile, the Court held the 2010 amendment of La. Const. art. I, § 17(A) (discussed below) to be constitutional under both 1) U.S. Const. Amend. VIs right to a jury trial and 2) the due process clauses of U.S. Const. Amend. XIV and La. Const. Art. I, § 2.
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. R.S. 14:30 (C)(1) sets out the available penalties for commission of the offense when the prosecutor seeks a capital verdict as “death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”
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. Because the prosecution in Singleton preceded the United States Supreme Courts decision in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), in which the Court held that the Eighth Amendment prohibited the death penalty for the rape of a child where the crime did not result in the death of the victim, a death sentence was still a permissible punishment for the non-fatal aggravated rape at issue in Singleton.
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. In the States opposition, it convincingly argues that these cases stand for the proposition that a “relator cannot game the system by proceeding with a bench trial and then complaining later that the waiver was invalid.”
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. Notably, the relator had filed an earlier motion to waive in the original section of court which the judge in that section had found untimely.
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. In an unpublished opinion, our Court denied writs in response to the states writ application seeking review of the district courts ruling granting the defense a bench trial. See State v. Landrieu, 2017-0445 (La. 6/5/17), 2017 WL 2426595 (unpubd).
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. La. Const. art. I, Section 17 and La. C.Cr.P. art. 782 were recently amended to require unanimous jury verdicts in crimes which occur after January 1, 2019. Subsequently, the United States Supreme Court issued its opinion in Ramos v. Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), holding that Louisianas non-unanimous jury verdict law was unconstitutional.
JASMINE, J., PRO TEMPORE, DISSENTS AND ASSIGNS REASONS