Opinion
No. 66551.
December 23, 1980.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE FRANK J. SHEA, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Fred Harper, J. Bassett, Louise S. Korns, Lance Africk, Asst. Dist. Attys., for plaintiff-appellee.
Orleans Indigent Defender Program, Thomas Ford, Clyde Merritt, New Orleans, for defendant-appellant.
Defendant Albert Bernard was charged by bill of information with simple burglary, a violation of La.R.S. 14:62. On January 24, 1979, he was tried before a six person jury and convicted by a vote of five to one. Thereafter, defendant was sentenced as a second felony offender under the provisions of La.R.S. 15:529.1 to serve six years at hard labor. On appeal he urges six assignments of error, one of which relates to the less than unanimous verdict.
Supplemental Assignment of Error No. 4
By this assignment defendant contends that the 5-1 verdict returned in this case was unlawful.
In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), the Supreme Court concluded that conviction by only five members of a six-member jury raised such doubts as to the jury's representation of the true sense of the community as to violate the Sixth Amendment guarantee of trial by jury. In Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159(1980), the Court determined that the rule of Burch was fundamental to the integrity of the fact-finding process, and thus required retroactive application, at least to cases still pending on direct review. (See, Powell, J., concurring opinion).
Accordingly, defendant's conviction and sentence are reversed, and the case is remanded for further proceedings.