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State v. Jones9/24/2004
n the basis that this defendant "has been unanimously found guilty by two 6-person juries," that a verdict of guilty in a new trial before a properly constituted six-person jury would grant him "more due process than a person charged with a capital offense," and that "sophisticated procedures ... ensure an accused considerable protection." I disagree. Our system of justice calls for constitutional trials, not "technical trials," absent amendment of the constitution to provide otherwise.
For these reasons, I respectfully dissent.
PETTIGREW, J., dissents, and assigns reasons.
PETTIGREW, J., dissenting.
The defendant in this case was tried by a twelve-person jury on the charge of DWI-fourth offense. Pursuant to La. R.S. 14:98E(1)(a), on conviction of a fourth or subsequent DWI offense, a defendant shall be imprisoned with or without hard labor for a period of not less than ten nor more than thirty years and shall be fined five thousand dollars. As set forth in La. Const. Art. I, s 17A and La.Code Crim. P. art. 782A, cases in which punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. Thus, a six-person jury was clearly required for the defendant's trial in this case.
It is impossible for us to know what discussions the jurors had during their deliberations. The original six jurors may have found the defendant not guilty, but for the argument of the additional six jurors. In my humble opinion, the conviction must be reversed and the matter remanded for a new trial before a jury containing the proper number of jurors. See State v. Smith, 367 So.2d 857 (La.1979) (per curium).
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