# Supreme Court of Lo uisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #059

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 6th day of December, 2017 , are as follows:

PER CURIAM :

2016 -K -1 034 STATE OF LOUISIANA v. WILLIAM SERIGNE & LIONEL SERIGNE (Parish of St. Bernard)
Fo r th e foregoin g reasons, we revers e th e cour t of appeal’s determination in errors patent review that Lionel Serigne’s conviction and sentence must be set aside because he was unable to validl y waiv e a jury trial. We reinstat e Lionel’s conviction an d sentence
. In addition , we revers e th e cour t of appeal’s determination that William Serigne is entitled to a new trial base d on a Brad y violation, whic h issu e wa s neve r passed on by th e tria l court, an d we reinstat e hi s convictions and sentences. However, we also remand to the district court for further proceedings to dete rmine if Lionel and William are entitl ed to ne w trials base d on undisclose d Brad y material in th e gran d jury testimony. Thereaft er, Lionel and W illiam m ay appeal any unfavorable determin ation by the distric t court on remand as well as seek appellate review of any previously pretermitted assignments of error . In addition, we pr eserve William’s cla im of prejudicial misjoinder for appellate review after further proceedings in the district court. REVERSED AND REMANDED.12/06/17

SUPREME COURT OF LOUISIANA
No. 20 16
- K
- 1034 STATE OF LOUISIANA VERSUS WILLIAM SERIGNE & LIONEL SERIGNE ON WRIT OF CERTIORARI TO THE COU R T OF APPEAL, FOURTH CIR CUIT, PARISH OF ST. BERNARD

PER CURIAM In 2009, 39

- year - old D.A. accused her cousins William and Lionel Sergine of sexually abusing her when she was a child. Oth er family members, B.M. and
M.S. , also came forward to accuse William Serigne of sexually abusing them.
Because of these accusations, Lionel was indic ted for the aggravated rape of D.A. committed before 1981. William was separately indicted for the aggravated rape of
D.A. based on an allegation of “oral sexual intercourse” committed in or after 1981, sexual battery of B.M., and ag gravated incest of his daughter, M.S. After the trial court d enied the state’s motion to try the defendants together , t he state convened a second grand jury and obtained a new indictment. Lionel was indicted for the aggravated rape of D.A., committed between the years of 1976 a nd 1983, in which William was alleged to have jointly participated . William was indicted for two counts of the aggravated rape of D.A., committed between the years of 1981 and 1983, in which Lionel was alleged to have jointly participated in

one count . Wil liam was also indicted for the sexual battery of B.M. and aggravated incest of M.S. The co

- defendants’ motions to sever their trials were denied and the matter proceeded to a bench trial. After the victim testified, the co

- defendants re

- urged their motion s to sever,2 and moved for a mistrial, on the basis that the victim’s testimony did not support the allegation that the co

- defendants jointly participated in raping her. The co

defendants also asked the trial court to perform an in camera review of the vict im’ s grand jury testimony. The trial court denied the motions and declined to review the grand jury testimony. The trial court found Lionel guilty as charged of aggravated rape and William guilty of forcible rape , not guilty of a second count of aggravate d rape, and guilty of sexual battery and aggravated incest. The court sentenced Lionel to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and sentenced William to a total of 40 years imprisonment at hard lab or without benefit of parole, probation, or suspension of sentence.
T he court of appeal panel vacated the convictions and sentences. State v. Serigne , 14

- 0379 (La. App. 4 Cir. 5/2/16), 193 So.3d 297. The court of appeal first noted that Lionel was indicted for an aggravated rape alleged to have occurred between 1976 and 1983, which span included a time when La.R.S. 14:42 provided a penalty of death for aggravated rape. 1 Citing , inter alia, State v. Holmes , 263 La. 685, 269 So.2d 207 (1972), the court found as an error patent that , because Lionel’s offense was classified as capital during at least part of the time alleged in the indictment, the procedural safeguards for capital trials applied and therefore a unanimous 12

- person jury was necessary . Because Lio nel was found guilty in a bench trial rather than by a unanimous 12

- person jury , the court of appeal vacated his conviction and sentence. Because the court of appeal vacated Lionel’s

1 In Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the U.S. Supreme Court found that Louisiana’s ma ndatory death penalty for first degree murder violated the Eighth Amendment. In Selman v. Louisiana , 428 U.S. 906, 96 S.C t. 3214, 49 L.Ed.2d 1212 (1976), the U.S. Supreme Court found t hat a mandatory sentence of death for aggravated rape violated the Eighth Amendment for the reasons expressed in Roberts . In response to Selman , the legislature amended La.R.S. 14:42 to provide a penalty of life imprisonment without parole eligibility for aggravated rape. 1977 La. Acts 343 (eff. September 8, 1977).3 conviction and sentence in errors patent review, it did not consider his four assignments of error. Regarding William, the court of appeal first found the evidence sufficient to support the convictions before then finding that his trial was misjoined to Lionel’s. The court noted that no evidence was presented at trial in suppo rt of the allegation that Lionel and William jointly participated in a rape , which allegation was the justification for trying them together

. After hearing oral argument, the court of appeal obtained the grand jury transcript and found there was also no ev idence presented to the grand jury that would support the state’s allegation of joint participation in a rape

. 2 T he court of appeal then found that the state withheld the grand jury transcript from the codefendants in violation of Brady v. Maryland , 373
U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) , and Giglio v. United States , 405 U.S. 150, 153

– 54, 92 S .Ct. 763, 31 L.Ed.2d 104 (1972), because it contained evidence William did not rape D.A. and William and Lionel did not jointly rape
D.A

. 3 Therefore, the co urt of appeal ordered that William receive a new trial and pretermitted consideration of a ll remaining assignments of error

. The court of appeal erred in applying State v. Holmes to find that Lionel was indicted for an offense classified as capital and th erefore unable to waive a jury trial. In Furman v. Georgia , 408 U.S. 238, 92 S.C t. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court held in a single

- paragraph per curiam that the manner in which the death penalty was imposed and carried out in Georgia and Te xas constituted cruel and unusual punishment in violation of the Eighth Amendment. Five justices concurred individually and at length in the judgment, disagreeing in many aspects

2 Th e grand jury testimony is not included in the appellate record submitted to this court to review.

3 T here was no Brady claim assigned as error and t he court of appeal reached this issue sua sponte after it obtained the grand jury transcript

.4 (such as their understanding of the history and meaning of the Cruel and Unus ual Punishments Clause), but four justices appeared to agree in one regard: statutory schemes that give unbridled discretion to the jury to determine if the death penalty will be applied are so arbitrary as to violate the Eighth Amendment. See Furman , 408 U.S. at 253, 92 S.Ct. at 2734 (Douglas, J., concurring) (“[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.”); id. , 408 U .S. at 294

– 95, 92 S.Ct. at 2754

– 55 (Brennan, J., concurring) (“[J]uries . . . make the decision whether to impos e a death sentence wholly unguided by standards governing that decision”); id. , 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring) (“I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”); id. , 40 8 U.S. at 314, 92 S.Ct. at 2764

– 65 (White, J., concurring) (“[The] recurring practice of delegating sentencing authority to the jury and the fact tha t a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime [violates the Eighth Amendment]”).
In cases that followed Furman , this court grapp led with the implications of a constitutionally unenforceable death penalty that had not yet been repealed or replaced by the legislature. For example, in State v. Flood , 263 La. 700, 269 So.2d 212 (1972), the court found that murder remained classified as a capital offense for purpose of determining whether an accused is entitled to bail. The court stated: [W] e conclude that Furman v. Georgia does not destroy the system of5 classification of crimes in Louisiana. Murder is still a crime, and, when our legisl ature last acted with respect to it, murder was, as it has ever been, a capital crime. The crime remains unchanged; only the penalty has been changed. True, the penalty is what made murder a capital offense, and it is not actually a capital offense in Loui siana today. But the Nature of the offense has not changed

— only the punishment. Because the system of classifying certain serious offenses as capital, and then providing the procedural structure for the administration of criminal justice based on that cla ssification is so fundamental in the organization of our criminal statutes, we find it preferable to make no change in the interpretation of the constitutional provisions concerning bail. Those offenses classified as capital before Furman v. Georgia are st ill class ified as capital offenses, and those charged with an offense punishable by death before Furman v. Georgia are not entitled to bail where the proof is evident or the presumption great. Flood , 263 La. at 705

– 06, 269 So.2d at 214. Likewise, i n State v. Holmes (decided on the same day as Flood ) , the court found that murder remains classified as a capital case , although it could not be punished as such under Furman , and therefore must be tried b efore a unanimous, sequestered 12

- person jury

. Dicta sugge sts Flood and Holmes were decided against the backdrop of a belief that the Eighth Amendment problem identified in Furman could be readily remedied by a legislative switch to a mandatory death penalty

. 4 That belief did not prove correct. In response to Fur man , Louisiana, along with 21 other states, eliminated the jury’s role in sentencing in a capital prosecution entirely by making the imposition of the death penalty mandatory. See John W. Poulos, The Supreme Court, Capital Punishment and the Substantive Cr iminal

4 See, e.g. Holmes , 263 La. at 691 , 269 So.2d at 209 (emphasis added): However, it was not the legislature, but the United States Supreme Court that has held the Imposition and Execution of the death se nt ence, a s now applicable in our State, to be violative of the United States Constitution. No presumption arises that any other provision of Louisiana law has been affected by the United States Supreme Court, except those having to do with the Imposition a nd Execution of death sentence. Nor, indeed, has the United States Supreme Court eliminated the possibility that the Louisiana legislature might enact statutes which could constitutionally impose the death sentence, when the sentence is mandatory and canno t be applied in a discriminatory manner

.6 Law: The Rise and Fall of Mandatory Capital Punishment , 28 Ariz. L. Rev. 143,
201

– 02 (1986). As noted above (see n.1), Louisiana’s mandatory death penalty for first degree murder was then declared unconstitutional in Roberts v. Louisiana

. Thus, Flo od and Hol mes arose in a particularly unusual and volatile era of developing death penalty jurisprudence and associated legislative responses. Subsequently, however, in State v. Schrader , 518 So.2d 1024 (La. 1988), this court rejected prior jurisprudence u nder which a defendant, who could not have been sentenced to death due to the constitutional infirmities of the statutes in place at the time of the homicide, would have nonetheless been entitled to the protections afforded the accused in a capita l case ( i ncluding a sequestered jury ) because the homicide prosecution retained for procedural purposes its capital classification. The court held: We now hold, despite its long lineage, the jurisprudential presumption of prejudice for “capital cases” does not appl y to a “capital case” where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived. Schrader , 518 So.2d at 1037. Although the co

- defendants argue Schrader should be narrowly construed as applying only to jury sequestration (and not any other procedural protections afforded a capital defendant ) , nothing in that opinion, which

a cknowledged Flood and Holmes , suggests the analysis should be so confined

. Instead, we find Schrader more broadly rejected the prior “capital classification” jurisprudence, and that it applies equally to Lionel Serigne here. 5 Lionel, who

5 In addition, even accepting for the sake of argument the viability of the capital classification jurisprudence after Schrader , the parties and the court below neglec t to address State v. Louviere , 00

- 2085 (La. 9/ 4/02), 833 So. 2d 885, in which this Court held: [N]othing in Art. I, § 17 requires the jury to decide all phases of the trial . . . we find the relevant limitation embodied in Art. I, § 17 is that of all the components of a trial, from indictment to sent ence, only the issue of the ultimate penalty of death is strictly required to be put before the jury.7 never faced the pr ospect of the death penalty, validly waived his right to a jury trial and never challenged th at waiver until the court of appeal raised this issue as an error patent. Therefore, we reinstate his conviction and sentence . However, for the reasons below, we r emand to the district court rather than the court of appeal. After further district court proceedings, as described below, Lionel may seek review in the court of appeal of his pretermitted assignments of error. As noted above , the court of appea l obtained a transcript of the grand jury proceedings after hearing oral argument and determined the transcript contained Brady material, although a Brady claim had not been presented to the trial court first and ruled upon below. William claimed on appeal the trial court erred in denying his motion to sever and erred in denying his request for a new trial based

on prejudicial joinder. By intertwining the joinder and Brady issues so closely, the court of appeal relied on evidence the trial court did not consider, i.e . the grand jury transcript, in determining whether the trial court erred in declining to sever the trials. Code of Criminal Procedure art. 494 provides: Two or more defendants may be charged in the same indictment or information if they are alleged to h ave participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
T he trial court is vested with broad discretion in determining whether to grant a motion to sever, and its determination should be upheld in the absence of an abuse of that discretion. State v. Brooks , 88

- 1420 (La. 1/30/89), 541 So.2d 801, 804

– 05. In the present case, the state alleged in its second indictment that William and

Louviere , 00

- 2085, p. 8, 883 So.2d at 893.8 Lionel jointly participated in the aggravated rape of D.A. 6 Based on this allegation, and with no contrary information before it, the trial court did not abuse its discre tion in denying the various motions to sever before trial. At trial, however, the testimony did not support the allegation of joint participation, and the co

- defendants sought a new trial on that basis. To obtain a

new trial for misjoinder, it is necessar y for a defendant to show prejudice. See La.C.Cr.P. art. 851(2), (4); cf. La.C.Cr.P. art. 495.1. The court of appeal discussed the prejudice William suffered only in the context of the analysis of the possible Brady violation

. See Serigne , 14

- 0379, pp. 31

– 32, 193 So.3d at 319. Review is further hampered by the absence of the grand jury transcript from the appellate record. Under the unusual circumstances presented here, faced with a record inadequate to evaluate this issue, and mindful of the constitutional prohibition against appellate factfinding in a criminal matter, La. Const. Art. 5, § 5(C), we remand to the district court to determine whether the grand jury testimony contains undisclosed Brady material warranting new trial s for Lionel and William in

ac cordance with Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) and United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) . Thereafter, Lionel and William can seek review in the court of appeal w ith regard to any unfavorable ruling by the district court. William can also seek review of his claim of prejudicial misjoinder as well as any pretermitted assignments of error. For the foregoing reasons, we reverse the court of appeal’s determination i n errors patent review that Lionel Serigne’s conviction and sentence must be set

6 Unlike present law, see R.S. 14:42(A)(5), the statute defining the offense during the pertinent period did not include multiple, joint perpetrators among the aggravating factors that elevated the grade of the offense. That aggravating factor was first added by 1984 La. Acts. 579. Therefore, th e allegation of joint participation in the indictment, while not nece ssary as an element of the offense, was likely included to obtain a joint trial of the co

- defendants.9 aside because he was unable to validly waive a jury trial

. We reinstate Lionel’s conviction and sentence. In addition, we reverse the court of appeal’s determination that Will iam Serigne is entitled to a new trial based on a Brady violation, which issue was never passed on by the trial court , and we reinstate his convictions and sentences

. However, we also remand to the district court for further proceedings to determine if Lio n el and William are entitled to new trial s based on undisclosed Brady material in the grand jury testimony . Thereafter, Lionel and William may appeal any unfavorable determination by the district court on remand as well as seek appellate review of any prev iously pretermitted assignments of error. In addition, we preserve William’s claim of prejudicial misjoind er for appellate review after further proceedings in the district court

. REVERSED AND REMANDED