STATE OF LOUISIANA NO. 22-K-71 VERSUS FIFTH CIRCUIT KYRIENE VALLERY COURT OF APPEAL STATE OF LOUISIANA

October 25, 2022 Linda Wiseman First Deputy Clerk

IN RE KYRIENE VALLERY APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE KATHERINE TESS STROMBERG, DIVISION "C", NUMBER 69,50

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and John J. Molaison, Jr.

STAY LIFTED; WRIT GRANTED; REMANDED The relator, Kyriene Vallery, seeks review of the trial court’s denial of his motion to quash. On March 10, 2022, this Court stayed the underlying proceedings pending the Louisiana Supreme Court’s resolution of an identical issue in State v. Gasser, 22-00064 (3/2/22) --- So. 3d, ---, 2022 WL 610722.

The relator was indicted on January 27, 2014, for second-degree murder by a St. James Parish Grand Jury. On November 1, 2018, a non-unanimous jury found the relator guilty of the responsive verdict of manslaughter. He was sentenced to years at hard labor with the Department of Corrections. The United States Supreme Court decision in Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020) held that a unanimous jury verdict is required to convict a defendant of a serious offense. On appeal, this Court vacated the relator’s conviction and remanded the case to the trial court for further proceedings. State v. Vallery, 20-149 (La. App. 5 Cir. 12/16/20), 308 So.3d 785.

22-K-71 The State thereafter sought to try the relator using the original grand jury indictment for second-degree murder. The relator filed a motion to quash the indictment on the basis of double jeopardy. He argued that because a jury convicted him of a responsive verdict of manslaughter, the State is precluded from prosecuting him for the greater offense of second-degree murder because being found guilty of a lesser degree of the offense charged, is an acquittal of the more serious second-degree murder charge under La. C.Cr.P. art. 598. In the alternative, the relator argued that allowing the State to retry him for a greater offense would chill his appellate rights under article I, section 19 of the Louisiana Constitution because he should not be required to elect between suffering an illegal conviction to stand unchallenged at the cost of forfeiting a valid defense to a greater offense.

After a hearing on November 29, 2021, the trial court denied his motion on December 17, 2021, finding the relator’s conviction, reversed in accordance with Ramos, was a “procedural dismissal” unrelated to the relator’s factual guilt or innocence, rather than an acquittal.

This Court had reached a contrary decision on December 16, 2021 in State v. Gasser, 21-255 (La. App. 5 Cir. 12/16/21), --- So.3d ---, 2021WL59999978. In that case, we found no error in a trial court’s granting of a motion to quash on the basis of double jeopardy upon finding that the responsive verdict of manslaughter was an acquittal of the second-degree murder charge. Relying on La. C.Cr.P. art. 598, we found the non-unanimous manslaughter verdict, legal at the time of the conviction, served as an acquittal of the greater offense of second-degree murder and the defendant could not be retried for that offense. In State v. Gasser, 22- 00064 (La. 6/1/22), the Supreme Court affirmed this Court’s opinion, and found specifically: After our review of the procedural history of this case and relevant case law, we agree with the lower courts that double jeopardy bars the reinstatement and retrial of a defendant on a higher charge when he has been lawfully convicted of a lesser included offense, even though the conviction is later vacated. We further agree with the lower courts that, in this case, defendant's conviction of a lesser included offense operated as an implied acquittal of the higher charge.

We thus affirm the trial court's ruling, granting defendant's motion to quash.

Therefore, in applying the Supreme Court’s recent pronouncement in Gasser, supra, to the instant facts, we find that double jeopardy precludes the State from retrying the relator on the second-degree murder charge due to the implied acquittal of the responsive verdict. Accordingly, we lift our previous stay, grant the relator’s writ, reverse the trial court’s denial of the motion to quash, and remand the matter for further proceedings.

Gretna, Louisiana, this 25th day of October, 2022.

JJM JGG SJW

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

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