STATE OF LOUISIANA COURT OF APPEAL

FIRST CIRCUIT

2019 KA 1029

STATE OF LOUISIANA

VERSUS

CHRISTOPHER DEANDRE THORNTON

Decision Rendered: JUL 232020

fl ' APPEALED FROM THE 19th JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 06- 16- 1160, SECTION VI HONORABLE DONALD R. JOHNSON, JUDGE

Bertha M. Hillman Attorney for Defendant/ Appellant Covington, Louisiana Christopher Deandre Thornton

Christopher D. Thornton Pro Se Jackson, Louisiana

Hillar C. Moore III Attorneys for Appellee District Attorney State of Louisiana and Dale R. Lee Assistant District Attorney Baton Rouge, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, 77.

McDONALD, 7.

The East Baton Rouge Parish grand jury indicted defendant, Christopher

Thornton, with three counts of attempted second degree murder ( counts two, three, and four), violations of La. R. S. 14: 30. 1 and La. R. S. 14: 27. 1 He pled not guilty. After

a trial, a jury found defendant guilty as charged on count two but found him guilty of the lesser -included offense of aggravated battery on counts three and four. On count

two, the trial court sentenced defendant to 30 years imprisonment at hard labor, to be served without benefit of probation, parole, or suspension of sentence; on counts three and four, the trial court sentenced him to two sentences of five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the first

year, all sentences to run concurrently. Defendant filed two motions for new trial, one on January 17, 2019, and another on February 20, 2019. The trial court sentenced

defendant on February 28, 2019 and denied his motions for new trial on March 19, 2019. 2 After appeal, appellate counsel filed an Anders brief asserting no assignments of error. Defendant filed a pro se brief asserting four assignments of error.

For the following reasons, we affirm defendant' s conviction and sentence on count two, set aside his convictions and sentences on counts three and four, and

remand for a new trial on these counts.

STATEMENT OF FACTS

On the afternoon of December 18, 2014, Darren Martin was driving past a grocery store at the corner of Gus Young Avenue and North 44th Street in Baton Rouge, Louisiana, with Cornelius Landry and Destinie Coston riding as passengers in the car. Mr. Martin slowed down near where defendant was standing after defendant made eye contact with him or flagged him down. Mr. Martin did not know defendant prior to

that day. Once Mr. Martin stopped, he opened the car door and spoke to defendant.

Defendant then shot a gun at the car at least 17 times. Mr. Martin immediately drove away with defendant still firing. Due to Mr. Martin' s injuries, Ms. Coston took over

driving to go to a nearby emergency room. Mr. Martin was treated for life-threatening wounds to his leg and neck, and Mr. Landry was treated for a shot to his hand. Ms.

Coston was not injured.

Alerted to the gunfire by the " ShotSpotter" system, police were dispatched to the scene in response. Following an investigation, the State identified, arrested, and

charged defendant with three counts of attempted second degree murder.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO: NON -UNANIMOUS 3URY VERDICT

In his second pro se assignment of error, defendant contends that his conviction

by a non -unanimous jury verdict, as allowed under La. C. Cr. P. art. 782A, was

unconstitutional. Defendant is formally making this argument for the first time on appeal. His trial counsel made an oral objection to the non -unanimous jury verdict system in Louisiana before voir dire began but did not follow up with a written motion.

Further, defendant did not raise the issue in his motions for new trial.

It is well established that litigants must raise constitutional challenges in the trial

court rather than in the appellate courts, and that the constitutional challenge must be

specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling, Inc. v. Kennedy, 04- 1089 ( La. 6/ 29/ 05), 914 So. 2d 533, 541. An exception to these general

principles exists when the statute applicable to the specific case has been declared unconstitutional in another case. Spooner v. EBR Parish Sheriff Dept, 01- 2663 ( La.

App. 1 Cir. 11/ 8/ 02), 835 So. 2d 709, 711; see State v. Antonio Celestine, 19- 42 ( La. App. 3 Cir. 10/ 2/ 19), 280 So -3d 1179, 1184.

In the recent decision of Ramos v. Louisiana, _ U. S. __--, 140 S. Ct. 1390, 1397,

206 L. Ed. 2d 583 ( 2020), the United States Supreme Court overruled Apodaca v. Oregon, 406 U. S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972), and held that the United

States . Constitution Sixth Amendment right to a jury trial, incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Thus, here, defendant may properly raise the

constitutionality of his convictions on counts three and four in the appeal before u5. 3 Moreover, the Ramos Court further indicated that its ruling may require retrial of those defendants convicted of felonies by non -unanimous verdicts whose cases are still pending on direct appeal. Ramos, 140 S. Ct. at 1406.

Herein, defendant was convicted by a ten -to -two verdict on counts three and four. Accordingly, defendant's convictions and sentences on those counts are set aside; however, as discussed in our review of defendant's third assignment of error, we

remand the case for a new trial of counts three and four only. Moreover, because

defendant was convicted by a unanimous verdict on count two, we find it prudent to consider the merits of his remaining assignments of error.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE: DEFECTIVE JURY VENIRE

In his first pro se assignment of error, defendant argues he was denied due

process because the jury venire in East Baton Rouge Parish was defectively constituted.

Citing the Louisiana Supreme Court's recent decision in State v. Canon, 19- 590 ( La. 4/ 18/ 19), 267 So. 3d 585, 585- 86 ( per curiam), defendant argues his jury venire was made deficient by the same process as existed in Cannon, and was not a fair cross- section of the community, where those born after June 2, 1993, were excluded from the jury pool. Consequently, defendant asks this court to vacate his conviction and remand for a new trial before a jury selected from a new, properly constituted venire.

In Cannon, 267 So. 3d at 585- 86, the Louisiana Supreme Court held:

Defendant has shown that, under the system employed in East Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on the jury, were never given an opportunity to serve, because their names were excluded from the general venire as a result of a significant error in the process by which the general venire was composed. That exclusion resulted in a general venire that was improperly constituted under Code of Criminal Procedure articles 401[,] et seq. and Louisiana Constitutional Articles I, § 3 (" No person shall be denied the equal protection of the laws.") and V, § 33 (" A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled."). Accordingly, we grant defendant's application to reverse the rulings of the courts below, grant defendant's motion to quash the general venire, and remand to the district court for further proceedings so that a petit jury can be chosen from a general venire that Pursuant to La. R. S. 13: 4448, on October 21, 2019, this court notified the Louisiana Attorney General that a constitutionality issue had been raised in this matter and gave him an opportunity to file a brief.

Accord State v. Thomas, 19- 0409 ( La. App. 1 Cir. 10/ 25/ 19), 289 So. 3d 1030, 1042.

is selected according to law. See State v. Jacko, 444 So. 2d 1185 ( La. 1984); State v. Procell, 332 So. 2d 814 ( La. 1976).

It is undisputed that, in this case, defendant's jury was assembled from the same venire as the Louisiana Supreme Court found defective in Cannon. However, in State v.

Smith, 17- 1333 ( La. App. 1 Cir. 2/ 21/ 18), 2018 WL 1007350, * 4, this court noted: The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. C. Cr. P. art. 532( 9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C. Cr. P. arts.

5211 532( 9), and 535( C); see also State v, Poo%r, 96- 1794 ( La. App. 1st Cir. 5/ 9/ 97), 696 So. 2d 22, 39, writ denied, 97- 1470 ( La. 11/ 14/ 97), 703 So. 2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire' s composition. Any grounds for that potential motion were waived. See La. C. Cr. P. art. 535( D).

Here, defendant did not file such a pretrial motion to quash and did not raise the issue before voir dire began. In fact, defendant did not raise the issue until the instant appeal. Generally, a reviewing court refrains from addressing an issue not raised in the trial court. See La. C. Cr. P. art. 841; State v. Thibodeaux, 16- 0994 ( La. 10/ 27/ 17), 227 So. 3d 811, 812 ( per curiam). We recognize, as defendant argues in his brief, that had

he known of the defect, he likely would have properly asserted his objection to the jury venire. Nevertheless, such did not occur, and hence, defendant did not properly preserve this claim for appellate review. Further, we find the Cannon decision itself

does not provide grounds to disregard defendant' s failure to follow the proper

procedure for raising a jury venire challenge. See Griffith v. Kentucky, 479 U. S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649 ( 1987) ( holding that " a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final[.]" ( Emphasis added.) We do not find

that the Louisiana Supreme Court in Cannon pronounced such a" new rule." 4

Consequently, this claim is not properly before the court and is denied as waived. See

Smith, 2018 WL 1007350 at * 4.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE: DOUBLE JEOPARDY

In his third pro se assignment of error, defendant claims he was improperly convicted of both attempted second degree murder and aggravated battery for actions arising from the same course of conduct.

Because we herein vacate the aggravated battery convictions upon which defendant bases his double jeopardy claim ( counts three and four), this assignment of error is moot. See State v, Mayeux, 498 So. 2d 701, 705 ( La. 1986) ( finding the Fifth

Amendment does not bar retrial when a jury's verdict, containing a nonwaivable defect, must be set aside by an appellate court); see also State v. Davenport, 13- 1859 ( La. 5/ 7/ 14), 147 So. 3d 137, 150 ( finding an illegal verdict constitutes neither an acquittal nor a conviction).

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR: IMPROPER EXPERT TESTIMONY

In his final pro se assignment of error, defendant argues the trial court erred Investigators when it permitted District Attorney Jeffrey Malone to testify about the ShotSpotter system. Defendant alleges that Mr. Malone had insufficient training and experience with which to present anything other than " speculative opinion evidence." Because of this alleged lack of experience, defendant asserts that La. R. S. 15: 4636

prohibited the trial court from considering Mr. Malone' s testimony.

Defense counsel initially objected to Mr. Malone testifying because of his lack of training and expertise to provide informed testimony on the technical workings of the ShotSpotter system. After the court instructed the State to provide more foundation

evidence, defense counsel again objected to Mr. Malone attempting to provide technical information. Defense counsel also objected to the introduction of an audio recording of the gunshots captured by ShotSpotter as hearsay. The State noted it was not

S See La. R. S. 16: 13. 1.

December 8, 2014.

The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C. E. art. 701. A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. State v. Morgan, 12- 2060 ( La. App. 1 Cir. 6/ 7/ 13), 119 So. 3d 817, 827; see State v. LeBlanc, 05- 0885 ( La. App. 1 Cir. 2/ 10/ 06), 928 So. 2d 599, 602- 03. However, only experts are allowed to give opinion testimony in areas of specialized knowledge. La. C. E. art. 702. A reviewing court must ask two questions to determine whether the trial court properly allowed lay opinion testimony: 1) was the

testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness' s observations, and 2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. Morgan, 119 So. 3d at 827.

Mr. Malone testified that he works in the crimes strategy unit of the District Attorney' s office. Although the State initially asked Mr. Malone to explain to the jury how the ShotSpotter system worked, after the defense objected, Mr. Malone limited his

testimony to explaining how he acquired and used information from the system in the course of his investigation. But, even assuming arguendo the trial court erred in allowing Mr. Malone to testify to the ShotSpotter system over defense objection,' we

cannot say the resulting testimony was " so prejudicial to the defense as to constitute Police officers have traditionally been allowed to infer from the evidence in analogous circumstances.

See, e.g., State v. Jackson, 15- 0809 ( La. App. 4 Cir. 5/ 25/ 16), 193 So. 3d 425, 438- 39, and State v. Washington, 16- 1471 ( La. 6/ 16/ 17), 219 So. 3d 1112 ( trial court did not abuse its discretion in allowing a detective to testify as to cell phone calls made and received and the cell tower locations for the calls, based on his examination of cell service provider records); Morgan, 119 So. 3d at 827 ( finding lay witness can infer and tell jury what cell tower accepted mobile phone signals at specific times based on that witness' s examination of cell phone records).

reversible error." The trial testimony clearly shows that multiple gunshots were heard at the corner of Gus Young Avenue and North 44th Street in Baton Rouge, Louisiana, on December 8, 2014. In the ShotSpotter evidence, there was no indication of the type of gun used or the identity of the shooter, and Mr. Malone did not opine on the identity of the shooter.

The report and recording were presented to establish corroborating evidence that the gunshots occurred and to explain how the police linked the shooting of Mr. Martin' s car to the event at the store. Thus, even assuming the trial court erred in allowing testimony from Mr. Malone explaining how he retrieved the report from the ShotSpotter system, and what it showed, defendant cannot show prejudice. This claim is without merit.

Appellate counsel' s motion to withdraw, which has been held in abeyance

pending the disposition of this matter, is hereby granted.$ CONCLUSION

For the above reasons, we affirm defendant's attempted second degree murder conviction. We set aside both of defendant's aggravated battery convictions and sentences and remand for a new trial on counts three and four ( as numbered on the

original indictment) only.

ATTEMPTED SECOND DEGREE MURDER CONVICTION AND SENTENCE AFFIRMED; BOTH AGGRAVATED BATTERY CONVICTIONS AND SENTENCES SET ASIDE; REMANDED FOR A NEW TRIAL WITH RESPECT TO COUNTS THREE AND FOUR ONLY.