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State v. Jones9/24/2004
o.2d 588 (La.1978), and subscribed to by Justice Lemmon in State v. Mosely, 425 So.2d 764, 766 n.4 (La.1983). Clearly, the defendant could have waived the jury entirely. Therefore, his trial before a twelve person jury constitutes a waiver of his right to trial by a fewer number of jurors. Furthermore, the defendant has neither alleged nor shown that he suffered any prejudice as a result of being convicted by a unanimous twelve person jury. Although it is difficult to imagine that the defendant could show any prejudice under this factual scenario, I do not rule out that possibility. Accordingly, as defendant did not raise as error the numerical makeup of the jury and did not allege or show prejudice resulting from said jury composition, I would affirm the conviction.
WHIPPLE, J., dissenting.
At the outset, I find no legal basis for the re-designation of this docketed and assigned case as a "per curiam" by unilateral action of one judge, in contravention of the rules of this court, absent a conference vote to allow such a deviation from our internal rules. Specifically, Rule 2.3d(1)(a) of the Internal Rules of Court, First Circuit Court of Appeal provides for cases to be randomly allotted to a panel with one judge on the panel designated as primary (or writing) judge. Additionally, under the policies of this court, if the opinion of the primary judge does not garner the necessary votes, the back-up judge then becomes the author.
By practice, panels (or even the conference) can agree to issue an opinion as a per curiam. Additionally, Rule 4.1 of this court's internal rules further provides that in instances where the court's rules do not expressly provide for a particular situation, the chief judge is the judge charged with the authority to act and "shall act in the best interest of the court, subject to review by the conference." However, the minutes of the conference do not reflect any approval, by either the en banc conference or the chief judge of this court, allowing the judge who became the authoring judge herein to hand down this matter as a "per curiam opinion with a concurrence" (and to thereby accomplish affirming the defendant's conviction and sentence). There are important and valid policy reasons why en banc courts adopt, and should then follow, procedural rules to govern the conduct of the business of the court.
Additionally, I note that the procedure being employed by Judge Kuhn herein, that is, the issuance of a purported "per curiam" with no majority opinion being issued, is the same flawed procedure that was attempted by the Second Circuit Court of Appeal, a procedure which the Supreme Court rightfully and properly termed a "procedural mishap." See Maranto v. Goodyear Tire & Rubber Company, 25114 (La.App. 2nd Cir.10/5/94), 643 So.2d 173, reversed, 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757.
In particular, I question whether the "ruling" of the purported "per curiam" herein (and accompanying concurrence) allowing the conviction and sentence to "stand" (as if this is somehow distinguishable from an affirmance of same) can have any legal or constitutional effect. Pursuant to LSA-Const. art. V, s 8(A), each court of appeal shall sit in panels of at least three judges. The Uniform Rules--Courts of Appeal further provide that " hen authorized by law, or when the court deems it necessary to promote justice or expedite the business of court, the court may sit in panels of more than 3 judges or en banc." Uniform Rules--Courts of Appeal, Rule 1-5. Additionally, this court's internal rules require that the court sit en banc to overrule existing published and unpublished First Circuit jurisprudence or to resolve a conflict between decisions of thi
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