Opinion
No. 66668.
September 10, 1980.
APPEAL FROM 29TH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA, HONORABLE RUCHE J. MARINO, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Morel, Dist. Atty., Norman J. Pitre, Harry Morgan, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
Gordon Hackman, Boutte, for defendant-appellant.
Defendant Ernest J. Morgan was charged by grand jury indictment with negligent homicide in violation of La.R.S. 14:32. After trial by jury on May 30, 1978, he was found guilty as charged, five of the six jurors concurring in the verdict. The trial judge sentenced defendant to serve five (5) years at hard labor. Defendant has appealed his conviction and sentence to this Court relying on eleven assignments of error. Finding merit in assignment of error number seven relating to defendant's conviction by a less than unanimous jury, we now reverse.
In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 1625, 60 L.Ed.2d 96 (1980), the United States Supreme Court held "that conviction by a non unanimous six[-person] jury in a state criminal trial for a non-petty offense deprive[d] [the] accused of his constitutional right to [a] jury by trial." Subsequently, we held the rule of Burch should not be applied retroactively to juries empanelled prior to the date of the Burch decision on April 17, 1979. State v. Brown, 371 So.2d 746 (La. 1979). The Supreme Court has now overturned that decision. In Brown v. Louisiana, ___ U.S. ___, 100 S.Ct. 2214, 2224, 65 L.Ed.2d 159 (1980), the Court has given retroactive effect to Burch for at least those cases on direct review ". . . in which it can be shown that the vote was in fact less than unanimous."[**]
In State v. Jackson, 370 So.2d 570 (La. 1979), we then held that despite the provisions of La. Const. 1974, Art. I, § 17 and La.C.Cr.P. Art. 782. Burch compelled unanimous verdicts in cases tried by six person juries empanelled after the date of decision in that case. The legislature has amended La.C.Cr.P. Art. 782, Acts 1979, No. 56, § 2 to reflect the constitutional requirement of unanimity established by Burch.
The record in this case clearly indicates that defendant was convicted by vote of five of the six jurors. Accordingly, we reverse his conviction under Brown v. Louisiana, supra, and remand the case to the district court for a new trial.
REVERSED AND REMANDED.