# Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 15th day of March, 2016 , are as follows:

BY CRICHTON, J. :

2014 -K O -1 555 STATE OF LOUISIANA v. GERALD W. DAHLEM (Parish of Washington) (H abitual Offender ) Based upon the foregoing analysis, although we find the trial court may have considered the documentary evidence necessary to impose the enhanced provisions set forth in 14:98(E)(4)(a), as evidenced by the trial court’s original sentence, we are unable to reach the jury composition issue. Even assuming a possible jury composition error, we find it was rendered moot by the defendant’s multiple offender s tatus, which required that he be sent enced under the mandatory hard labor requirement set forth in La. R.S. 15:529.1(G). For these reasons, we affirm the defendant’s conviction and sentence. AFFIRMED
. KNOLL, J., additionally concurs and assigns reasons. WEIMER, J., dissents and assigns reasons. HUGHES, J., concurs in the result.1 

### 03/15/16

S UPREME COURT OF LOUISIANA
N O. 2014
- KO
- 1555
S TATE OF LOUISIANA
VE RSUS
G ERALD W. DAHLEM
O N WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF WASHINGTON

CRI CHTON, J. We granted the writ application in this case to determine whether trial by a jury composed of fewer jurors than required by law is a non

- waivable structural
defect which requires that a defendant’s conviction be reversed and his sentence vacated. Specifically, the narrow question before us is wheth er defendant was denied a fair trial and due process of law because he was, without contemporaneous obj ection at trial, tried by a six -p erson jury, instead of a twelve

person jury, on a fourth offense Driving While Intox icated (“DWI”) charge. Following deliberations, the six

- person jury found defendant guilty, and the trial court sentenced defendant as a habitual offender to 25 years without benefit of parole, probation, or suspension of sentence. The court of appeal affirmed both
defendant’s c onviction and his sentence. For reasons that follow, we find that due

to defendant’s multiple offender status and subsequent sentence as such , his tri al by a six

- person jury was not an error requiring his conviction be reversed or his
sentence vacated. W e therefore affirm the lower courts’ rulings and decline to reach the broader jury composition issue in this case

.2 

### FACTS AND PROCEDURAL HISTORY Defendant was arrested in Bogalusa, Louisiana, on November 10, 2011, for
DWI , fourth offense, after a Loui siana s tate t rooper witnessed a pickup truck driven by the defendant cross the centerline to the left, veer back to the right, and then run off of the road. When the trooper initiated a traffic stop, he observed that defendant swayed as he stood, had an o dor of alcohol on his breath, his speech was slurred, and his eyes were glassy and bloodshot. Defendant’s blood alcohol level registered 0.180

. On January 17, 2012, the s tate filed a bill of information, charging defendant
with one count of driving while intoxicated, fourth offense, a violation of La. R.S.
14:98 (Count I) . He was also charged with improper lane usage (a violation of La. R.S. 32:79) , a license plate light violation (a violation of La. R.S. 32:304(C)) , and driving under a suspended li cense (a violation of La. R.S. 32:415) (Counts II, III, and IV, respectively)

. 1 

### The defendant ple a d ed not guilty on all counts.

1 The Bill of Information, dated January 17, 2012, specifically provides as follows:
COUNT I R.S. 14:98 DRIVING WHILE INTOXICATED , by operating a motor vehicle while under the influence of alcohol or any scheduled controlled dangerous substance or while under the influence of alcohol and one or more drugs which is not a schedule d controlled dangerous substance. And now the District Attorney informs this Honorable Court that this is a FOURTH offense , the defendant having previously been convicted of operating a motor vehicle while under the influence of alcoholic beverages on Ma y 15, 2002, in docket number F1360

- 18 in the Parish of Jefferson, State of Louisiana.
And further having been convicted of operating a motor vehicle while under the influence of alcoholic beverages on February 19, 2004, in docket number 03

- CR

- 89114 , in th e Parish of Washington, State of Louisiana. And further having been convicted of operating a motor vehicle while under the influence of alcoholic beverages on July 9, 2010, in docket number 10

- CR1

- 108537, in the Parish of Washington, State of Louisiana.
COUNT 2 R.S. 32:79 IMPROPER LANE USAGE, by operating a motor vehicle on a public highway and improperly using the lanes for traffic.
COUNT 33 

### A jury trial began on April 30, 2012 , at which time the s tate severed counts two through four, and proceeded to trial only o n Count I , which carried a penalty range with or without hard labor for “not less than ten years no more than thirty

years
. ” La. R.S. 14:98(E)(1)(a). C onsidering the b ill of i nformation and the related penalty range, the prosecution and defense chose a j ury of six people,
without any contemporaneous objection from either side at any time

. More specifically, neither the defendant nor the prosecution requested a twelve

- person jury at any time before or during trial. O n May 1, 2012, the jury found defendant guilty as charged, and the trial court denied a Motion for New Trial and a Motion
for Post Verdict Judgment of Acquittal. Defendant was ultimately sentenced to 25 years at hard labor , with three years to be served without benefit of proba tion, parole, or suspension of sentence. 2 

### The defendant moved for reconsideration of his sentence, which the trial court also denied. Shortly thereafter, the State filed a Multiple Offender Bill of Information,

R.S. 32:304C LICENSE PLATE REQUIRED , either tail la m p or separate lamp shall be so constructed and placed as to il luminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear.
COUNT 4 R.S. 32:415 DRIVING UNDER SUSPENSION, by operating a motor vehicle on a public highway while his driver’s license was und er suspension.

2 The transcript from the defendant’s original sentencing hearing on September 24, 2012, reveals the following statements by the trial court:

*** Basically, I feel that Mr. Dahlem has shown a disregard for the normal rules and an unwillingness to abide by the normal rules. And I believe that without a significant jail sentence that Mr. Dahlem would be likely to perform or commit additional acts, criminal acts. And I think it’s hi s good fortune and our good fortune that no one has been significantly injured or killed at this point based on your driving while intoxicated. And I have seen those in front of me, Mr. Dahlem, who are much less fortunate.
I have reviewed the sentencin g guidelines under article 894.1. And having considered both the aggravating and mitigating factors, I’m going to sentence you in this case to 25 years at hard labor in the custody of the Department of Corrections. Three of those years will be served wit hout the benefit of parole, probation, or suspension of sentence. ***4 

### alleging the defendant was a third felony offender. 3 

### After a hearing on October 29, 2012, the defendant admitted the allegations in the Multiple Offender Bill . The trial court, after considering the factors set forth in La. C.Cr.Pr. art. 894.1 (the sentencing guidelines) and all other evidence in the case, 4 

### vacated its original
sentence and re
- sentenced the defendant under La. R.S. 15:529.1 to serve 25 years imprisonment at hard labor, without the benefit of probation or suspension of

sentence. The defendant timely appe aled to the Court of Appeal, First Circuit , asserting five assignments of error , both counseled and pro se. 5 

### In one of his pro se assignments of error, asserted for the first time on appeal, 6 

### defendant avers he was denied a fair trial and due process of l aw by being tried by a six

- person jury for a felony requiring hard labor , as under La. Const. art. I, §17(A), a case in which the punishment is necessarily hard labor requires a jury of twelve persons. The

3 The Multiple Offender Bill of Information states that on May 22, 2007, the defendant was convicted of theft between $300 and $500, a violation of La. R.S. 14:67 and was sentenced to two (2) years with the Department of Corrections and three (3) years of probation. The defendant was also convicted of distribution of marijuana, a violation o f La. R.S. 40:966, on June 26, 1 997, and was sentenced to five (5) years with the Department of Corrections (suspended) and three (3) years of probation.

4 The pre

- sentencing investigation report in this matter , relied upon heavily by the trial judge at sentencing, shows that , beginni ng in 1990, defendant has been arrested twenty

- seven (27) times prior to the instant offense, for various crimes including theft, criminal trespass, disturbing the peace, simple battery, and simple burglary (among others).

5 The defendant asserted on app eal that: 1) the trial court imposed an unconstitutionally excessive sentence; 2) he was tried before an improper number of jurors ; 3) he was denied a fair trial and due process of law because the predicate DWI evidence was insufficient as a result of an invalid first

- offense DWI predicate; 4) he was denied a fair trial and due process of law because of prosecutorial misconduct; and 5) he was denied a fair trial and due process of law because an invalid predicate, based on a juvenile adjudication for theft , was used to obtain the habitual offender adjudication. In affirming the defendant’s conviction and sentence, the court of appeal found the trial court adequately considered the criteria of La. C.Cr.Pr. art. 894.1, and did not manifestly abuse its dis cretion in imposing defendant’s sentence . Moreover, the appellate court found the sentence imposed was not grossly disproportionate to the severity of the offense, and therefore, was not unconstitutionally excessive. The court of appeal also found no abu se of discretion in the trial court’s finding that the State sufficiently established that the defendant was the same person convicted in predicate number one (1), and the court also declined to find prosecutorial misconduct in this case. The appellate co urt also found the defendant’s assignment of error number five (5), concerning his habitual offender predicate, was not properly preserved for review, as defendant did not file a written response to the habitual offender bill.

6 Defendant did not object during the selection of the jury, participated in the selection of the six

person jury, and failed to file a motion in arrest of judgment at the trial court level

.5 

### appellate court disagreed, finding that because t he defendant was sentenced to substance abuse treatment and home incarceration as a result of his predicate third
offense DWI , under La. R.S. 14:98(E) (4)(a), the defendant “shall be imprisoned at hard labor for not less than ten nor more than thirty years. ” In this instance, the appellate court noted the defendant was erroneously tried by a six

- person jury; however, he acquiesced in the error because he raise d no objection at voir dire
when the trial court announced it would be selecting a six person jury, nor did the defendant file a motion in arrest of judgment. Therefore, the court of appeal found, the wrong jury forum error was waived. State v. Dahlem , 13

- 0577 (La.App. 1 Cir. 6/18/14), 148 So.3d 591. Judge Kuhn concurred in the court of appeal’s opinion, but disagreed with the majority’s conclusion that a jury composition error occurred in this case. In Judge Kuhn’s view, “La. R.S. 14:98(E)(4)(a) does not create a new crime entitling a defendant to a trial by a twelve

- per son jury, but merely provides for enhancement
of the sentence for a fourth

- offense DWI sentence if the offender previously has
been required to participate in substance abuse treatment and home incarceration as
the result of a third

- offense DWI conviction. ” Dahlem, 13

- 577, p. 1, 148 So.3d at 600. Judge Kuhn also noted that even if there was an error in the jury composition, it would be subject to a harmless error analysis under State v. Brown , 11

- 1044 (La. 3/13/12), 85 So.3d 52, 53 ( per curiam ), and is no t reversible unless the defendant is actually prejudiced. Moreover, Judge Kuhn observed , the defendant waived any objection to the error in the jury composition by actively participating in the
selection of the six

- person jury that ultimately unanimously convicted him.
This C ourt subsequently granted the defendant’s writ application, with the specific instruction that the C ourt’s review was to be limited to the jury composition issue. State v. Dahlem , 14

- 1555 (La. 3/27/15), 161 So.3d 646.
LAW AND ANALYSIS6 

### In brief, the defendant asserts that the court of appeal erred because the failure to conduct his trial before a twelve person jury under La. Const. art. I, § 17(A) constitutes a non

- waivable structural defect that requires his conviction be
reversed and his sentence vacated. In the alternative, if this C ourt finds the error is not structural, defendant avers it fails the harmless error analysis, which also dictates his conviction be reversed, his sentence vacated, and the matter be
remanded for a new tri al. In contrast, the state asserts the defendant waived any error by failing to make a contemporaneous objection, as required by La. C.Cr.Pr. art. 841. Moreover, the state maintains that this was not a structural error, and again, was waived, as it was fi rst asserted on appeal. According t o the S tate, a fourth offense
DW I is subject to a six

- person jury, and La. R.S. 14:98(E)(4)(a ) is only an enhancement prov ision and does not dictate a six

- or twelve

- person jury. If the state had failed to prove the de fendant’s predicate offenses, sentencing under the enhanced p rovision was only a possibility and never a certainty. Finally, the state avers any error was harmless, as there was overwhelming evidence of defendant’s guilt in this matter , also established b y the unanimous jury verdict

. As stated above, the narrow issue defined by this C ourt is whether, in this instance, trial by an incorrect number of jurors warrants reversal of the defendant’s
conviction . Article I, § 17(A) of the Louisiana Constitution provides , in pertinent
part : Jury Trial in Criminal Cases . A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. . . . 7

7 La. C.Cr.Pr. art. 782 similarly provides:7 

### In State v. Jones , 05

- 0226 (La. 2/22/06), 922 So.2d 508, defendant was charged by bill of information with one count of DWI, fourth offense, a violation of La. R.S. 14:98(E). The defendant wa s tried by a jury of twelve, which unanimously found him guilty as charged. The trial court sentenced Jones to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension o f sentence. While reviewing the merits, the appellate court found that defendant had been incorrectly tried before a jury of twelve jurors, rather than six jurors as required by La. Const. Art. I, § 17. Noting that this C ourt has previously held that
“tr ial by an incorrect number of jurors, either more than or less than required, renders the verdict and sentence null,” the Jones court stated it must determine whether such a constitutional error automatically requires reversal, or whether it is subject to a harmless error analysis, warranting reversal only when the defendant is actually prejudiced. Id. , 05

- 0226 at p. 3

- 4, 922 So.2d at 511. The C ourt explained:
A structural error is one which affects the framework within which the trial proceeds. Arizona v. Fulminante , 499 U.S. 279, 307

- 311, 111 S.Ct. 1246, 1264

- 1265, 113 L.Ed.2d 302 1991). Constitutional structural errors warrant automatic reversal. Arizona v. Fulminante , 499 U.S. at 307

- 311, 111 S.Ct. at 1264

- 1265. Structural defects are fatal an d have been restrictively defined to include the complete denial of counsel, see Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); adjudication by a biased judge, see Tumey v. Ohio , 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); exc lusion of members of defendant's race from a grand jury, see Vasquez v. Hillery , 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); the right to self

- representation at trial, see McKaskle v. Wiggins , 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); the right to a public trial, see Waller v. Georgia , 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and the right to a jury verdict of guilt beyond a reasonable doubt, see Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

A. Cases in which punishment may be capital sha ll be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the 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. B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.8 

### Id.
The Jones court further noted, however, that not all constitutional errors are structural, and in fact, most are subject to a harmless error analysis. Id. , citing
Sullivan v. Louisiana , 508 U.S . 275, 278

- 9, 113 S.Ct. 2078, 2081 , 124 L.Ed.2d 182 (1993). U tilizing the harmless error analysis, the court in Jones found that the
defendant’s conviction by a unanimous twelve

- person jury did not result in any prejudice to him and remanded the case to the appellate court. In so concluding,
the Jones court set forth a bright

- line rule that juries composed of greater numbers of persons than constitutionally required no longer constitute a non

- waivable jurisdictional defect subject to automatic reversal. Critically, h owever, the C ourt stated in a footnote, “”[o]u r holding here today does not guarantee the same result would be reached if a lesser number of jurors had been empaneled than required by law, or if there was no unanimity of verdict.” Jones , 05

- 0226 at 7, n. 9, 922 So.2d
at 513.
This C ourt more recently considered a similar issue in State v. Brown , 11

- 1044 (La. 3/13/12), 85 So.3d 52, wherein a jury of twelve persons convicted the
defendant as charged of simple burglary of a religious building by a non

unanimous, 10

- 2 vote. The trial court sentenced the defendant to 12 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Although the appellate court had reversed his conviction and sentence based upo n defendant’s trial by a twelve

- person jury, where de fendant s hould have
had a six

- person jury, this C ourt pointed to its decision in State v. Jones, supra , to reiterate that a trial of a relative felony before a jury of twelve persons is no longer
an “absolute constitutional outlier that it once was in Louisiana.” Brown, 11

- 1044 at 3, 85 So.3d at 53, citing State v. Jones , 05

- 0226, p. 3 (La. 2/22/06), 922 So.2d 508, 511. In Brown , however, this C ourt deemed it unnecessary to address whether the error in jury composition actually prejudiced respondent’s case ,9 

### finding instead that because the defendant failed to make a contemporaneous objection to the jury error, “he waived any entitlement to reversal on appeal on grounds that he was tried by a jury panel which did not conform to the requirements of La. Const. art. I, § 17 and La. C.Cr.Pr. art. 782 because it included a greater number of jurors than required by law, although the error is patent on the
face of the record. . . .” Brown, 11

- 1044 at 5, 85 So.3d at 55, citing Jones , 05

- 0226 at 5, 922 So.2d at 516 ( Weimer, J., concurring in Jones ) (“ [The state correctly argues that] Louisiana’s established procedural default rules should govern because the rule barring trial of a six

- person jury offense in a twelve

- person forum no longer applies in all instances and hence has lost its jurisdictional aspect. . . . A defendant should not have the opportunity of gambling on a favorable verdict from the larger jury and then resorting on appeal to an error that easily could have been
corrected in the trial court at the out set of jury selection.”). 8 

### Although our previous jurisprudence has properly posited the question, as
reserved in Jones and Brown , as to the appropriate procedure when a defendant is erroneously tried by a fewer number of jurors than constitutionally required, this

8 Similar to rese rving the contrary issue of fewer jurors when more is required, the court in Brown stated as follows in a footnote:
As in Jones , we have no occasion to consider here whether trial before a panel composed of fewer jurors than required by law , i.e., trial of a 12

– person jury offense in a six

- person jury forum, constitutes more than trial error and retains its jurisdictional character as a structural defect in the proceedings. We also have no occasion to consider here whether, in a postconvicti on claim of ineffective assistance of counsel, the failure of counsel to object to the error in jury composition, which may constitute counsel error for purposes of the two

- part test of ineffective assistance claims set forth in Strickland v. Washington , 4 66 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may also satisfy Strickland 's second prong, that the error prejudiced respondent, i.e., “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produc ed a just result.” Strickland , 466 U.S. at 686, 104 S.Ct. at 2064. Cf. Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (the test of prejudice under Strickland “focuses on the question whether counsel's deficient performa nce renders the result of the trial unreliable or the proceeding fundamentally unfair.”).
State v. Brown , 11

- 1044, p. 6, n. 1 (La. 3/13/12), 85 So. 3d 52, 55, n. 1.10 

### case does not fit squarely in those circumstances. 9 

### Here , after the defendant’s original sentence was imposed, he was billed as a habitual offender, and adjudicated as such. Conseque ntly, the trial court vacated its original sentence (at hard labor) and defendant received an enhanced recidivist sentence as a multiple
offender (at hard labor). In sum, the defendant ultimately received the same at hard labor sentence, despite the origi nal sentence given by the trial court. Thus, we
do not find it necessary to analyze the effect of any jury composition error, if any
existed , in this particular case
. The bill of information in this case, as set forth in note 1 above, charge d
defendan t in Count 1 with Driving While Intoxicated, fourth offense. Specifically, the charging instrument states, in pertinent part:
COUNT I R.S. 14:98 DRIVING WHILE INTOXICATED, by operating a motor vehicle while under the influence of alcohol or any scheduled controlled dangerous substance or while under the influence of alcohol and one or more drugs which is not a scheduled controlled dangerous substance. And now the District Attorney informs this Honorable Court that this is a FOURTH offense, the defendant having previously been convicted of operating a motor vehicle while under the influence of alcoholic beverages on May 15, 2002, in docket number F1360

- 18 in the Parish of Jefferson, State of Louisiana. And further having been convicted of operating a moto r vehicle while under the influence of alcoholic beverages on February 19, 2004, in docket number 03

- CR

- 89114, in the Parish of Washington, State of Louisiana. And further having been convicted of operating a motor vehicle while under the influence of alc oholic beverages on July 9, 2010, in docket number 10

- CR1

- 108537, in the Parish of Washington, State of Louisiana.

It is imperative to note that the b ill of i nformation sets the parameters and dictates

9 “ It is well

- settled in the jurisprudence of this state that courts will not decide abstract, hypothetical or moot controversies or render advisory opinions with respect to such controversies. ” Shepherd v. Schedler , 2015

- 1750 (La. 1/27/16) , quoting Cat's Meow, Inc. v. City of New Orleans, Dept. of Finance , 98

– 0601, p. 8 (La.10/20/98), 720 So.2d 1186, 1193.11 

### the mode of trial

. 10 

### Based solely upon the information on the face of the bill of
i nformation, the defendant in this case was properly tried before a six pers on jury , as the sentencing range for a fourth offense DWI , as listed in this particular b ill of
i nformation, is not mandatory hard labor . Sp ecifically, La. R.S. 14:98 (E)(1)(a) , in effect at the time of defendant’s offense, provided that operating a vehicle while
int oxicated, fourth offense , carried the following penalty range with or without
hard labor :

. . . on a conviction of a fourth or s ubsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten yea rs nor more than thirty years and shall be fined five thousand dollars. Two years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. (emphasis added)
Given that the enhanced sentence to which the evidence made defendant subject was not apparent on the face of the bill of information , we specifically
decline to create a duty requiring a trial judge to look beyond the face of the bill of
i nformation or the indictment, and the Title 14 penalty range. Nor is it the responsibility of a trial judge to interrogate the district attorney or independently investigate as to what evidence might be introduced that would require a different jury composition at the outset of a case. Doing so would be in appropriate and
contrary to the efficient administration of criminal justice , and effectively result in bad policy

. The defendant in this case was initially sentenced to twenty

- five years at hard labor, with three years without the benefit of parole, probation, or suspension

10 This court is aware of State v. Gage , 42,279 (La.App. 2 Cir. 8/29/07), 965 So.2d 592, and State v. Hardeman , 04

- 760 (La.App. 1 Cir. 2/18/05), 906 So.2d 616, which found that a related provision, La. R.S. 14:98(E) (4)(b), is not a sepa rate offense requiring additional facts to be alleged in the indictment in order to satisfy Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000). We find these cases distinguishable, however, as they addressed an Apprend i problem , but not a jury composition issue. As stated above, our ruling today is based upon the facts of the record before us, and we reserve for another day the issue of whether a jury composed of fewer jurors than required is a structural defect requi ring a defendant’s conviction be reversed and a sentence vacated.12 

### of sentence

. During trial , documentary evidence (State’s Exhibit #11) was
introduced th at established that after his DW I, third offense, the defendant was
sentenced to substance abuse treatment and home incarceration, 11 

### which, under
then

- La. R.S. 14:98(E)(4)(a), required a n enhanced mandatory hard labor

sentence:
If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sen tence shall be imposed without benefit of suspension of sentence, probation, or parole. (emphasis added) Thus, the trial court’s original sentence, which included three years without the benefit of parole, probation, or suspension of sentence, is consiste nt with the
enhanced mandatory language in La. R.S. 14:98(E)(4)(a). A sentence such as the trial court’s original one should only have been imposed if the trial court considered the aforementioned documentary evidence that established that defendant had, indeed, been sentenced to home incarceration and substance abuse

treatment

. Stated differently, the trial court’s original sentence (including three years without the possibility of probation, parole or suspension), was necessarily dictated by considerati on of the documentary evidence establishing defendant was sentenced to home incarceration and substance abuse treatment following his third

11 The appellate court accurately noted the defendant’s predicate offenses , as listed in the record : In connection with predicate #3, the State introduced into evidence a bill of information, commitment, minutes of guilty plea and sentencing, and transcript of guilty plea and sentencing. The documents indicated the defendant pled guilty to third

- offense DWI and was sentenced to three years at hard labor, with all but eighty days o f the sentence suspended, and three years of supervised probation. Special conditions of probation included that the defendant submit to an evaluation by the Department of Health and Hospitals, Office of Addictive Disorders, to determine the nature and ex tent of his substance abuse, and that he participate in any treatment plan recommended by that office, including inpatient treatment for at least four weeks. Additionally, the court ordered the defendant would be subject to home incarceration during the e ntire period of probation.
State v. Dahlem , supra, at 596.13 

### offense DWI. However, because the trial judge did not specifically outline his consideration of this evidence, it i s not clear from the record before us whether the
trial court absolutely did, in fact, consider this evidence related to defendant’s predicate third offense DWI, as the jury did not make a finding related to this fact, and the trial judge did not explicitl y make such a finding during the defendant’s sentencing proceedings. Moreover, t he record reflects no argument from either the prosecution or the defense about whether or not the trial court should consider the evidence related to predicate #3, which woul d have led to an enhanced sentence. As a result, given the uncertainty of which provision the defendant was sentenced under, this court cannot rule out the possibility that the defendant’s original

sentence was improper

. In other words, i f the trial court sentenced the defendant under the unenhanced provision (with optional hard labor), the defendant was correctly tried by a six

- person jury. If the trial court sentenced the defendant under the enhanced version, then the trial court was in error, and the sentence imposed may have been inappropriate . However, as discussed below, even if the trial court’s original sentence was improper , it was rendered moot by the defendant’s subsequent habitual offender status and related sentence as such

. Consequently,
we are unable to reach the jury composition issue in this particular case, but
reserve the issue for this C ourt’s review another day

. The State’s Multiple Offender Bill of Information alleged that defendant was a third felony offender, with previous convictions in 1997 and 2007 for distribution of marijuana and theft between $300 and $500, respectively. After a hearing, the
def endant admitted the allegations, and the trial cour t vacated its original sentence
and resentenced him under La. R.S . 15:529.1 to 25 years at hard labor, without benefit of probation or suspension of sentence. In other words, t he multiple
offender bill in this instance resulted in an enhanced recidivist sentence that displaced the original sentence, placing the defenda nt in the same position he14 

### would have bee n in, even without consideration of the provisions set forth in La. R.S. 14:98(E)(4)(a) (which , under the Louisiana Constitution, require a twelve person jury)

. 12 

### In sum, we find this to be an issue of an improper sentence which
has been rendered moot by the defendant’s multiple offender status. As a result,

w e decline to find any err or that warrants reversal of the defendant’s conviction or

sentence in this particular instance

. CONCLUSION
Bas ed upon the foregoi ng analysis , although we find the trial court may have
considered the documentary evidence necessary to impose the enhanced provisions set forth in 14:98(E)(4)(a) , as evidence d by the trial court’s original sentence, we are unable to reach the jury composi tion issue

. Even assuming a possible jury composition error, we find it was rendered moot by the defendant’s multiple offender status, which requir ed that he be sentenced under the mandatory hard labor requirement set forth in La. R.S. 15:529.1(G) . For these reasons, we affirm

12 We agree with Judge Kuhn’s concurrence in the court of appeal’s opinion , which states: . . . .[T]rial of the defendant by a six

- person jury was dictated by law in this case. The district attorney, in the exercise of his discretion, elected to charge the defendant pursuant to La. R.S. 1 4:98 with a fourth

- offense DWI. Under La. R.S. 14:98(E)(1)(a), the punishment for fourth

- offense DWI is imprisonment with or without hard labor for not less than ten years and not more than thirty years and a $5,000.00 fine. In accordance with La. Const. art. I, sec. 17(A), such a case “shall be tried before a jury or six persons, all of whom must concur to render a verdict.” See also La.C.Cr.P. art. 782(A). In reliance on these constitutional and statutory provisions, the State, the defense, and the trial court worked together to select a six

- person jury to try this case. Although, the State later presented evidence at trial in connection with p redicate # 3 which, if accepted, allowed for a sentence at hard labor under La. R.S. 14:98(E)(4)(a), sentencing of the defendant under this sentencing enhancement provision was only a possibility, but never a certainty. Thus, as a practical matter, this ca se was required to be tried in a six

- person jury forum since there was only a possibility that the defendant could receive a sentence at hard labor. In Louisiana, a twelve

- person jury is required only when the potential sentence is necessarily confinement at hard labor. La. Const. art. I, sec. 17(A); La.C.Cr.P. art. 782(A). Thus, the defendant's trial was conducted in accordance with the jury composition rules applicable to La. R.S. 14:98(E)(1)(a), wherein the actual conduct prescribed is a fourth

- offense D WI, and the sentence to be imposed may be with or without hard labor.
State v. Dahlem , 13

- 0577, p. 1 (La.App. 1 Cir. 6/18/14), 148 So.3d 591, 600

- 01 (Kuhn, J., concurring).15 

### the defendant’s conviction and sentence.
AFFIRMED

.

### 03/15/16

S UPREME COURT OF LOUISIANA
N O. 2014
- KO
- 1555
S TATE OF LOUISIANA
VE RSUS
G ERALD W. DAHLEM

KN OLL , J. , additionally concurs. Although I agree with the majority’s conclusion that the District Court did not err when it tried defendant by a jury of six persons, I write separately because I believe the majority’s analysis is overly complex. I am in full agreement with the
views Judge Kuhn expressed in h is concurring opinion that no structural error
occurred in this case as the hard

- time requirement of the former La. R.S. 14:98(E)(4)(a) does not create a new crime warranting trial by a jury of twelve

persons. Because this statute merely provides for a sentencing enhancement , i t does not transfigure the relative felony with which the District Attorney charge d
the defendant into an absolute felony. As such , application of this enhancement to
a defendant at sentencing does not trigger the right to trial by a twelve person jury at the outset of trial

. Moreover, even if we willingly suspend disbelief to imagine a jury composition error in this case, defendant failed to lodge a contemporaneous objection at the ti me of jury selection. As compelled by La. C.Cr.P . art. 841, we have repeatedly held that an irregularity or error cannot be availed of after the verdict unless it was objected to at the time it occurred since a contemporaneous objection is required to preserve an error for appellate review. 1 

### Indeed,

1 La. C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.”); State v. Kahey , 436 So.2d 475, 489 (La. 1983) (“[A]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. ”) ; State v. Lindsey , 404 So.2d 466, 478 (La. 1981) (“ In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after the verdict is rendered .”); State v. Marcell , 320 So.2d 195, 197 (La. 1975) (“ By failing to make a timely objection, a defendant waives his right to subsequently attack the judgment of conviction on grounds2 

### T he basis for objections to trial irregularities or errors should be stated at the time they occur. Counsel cannot wait, with an anchor to windward, to urge the irregularity for the first time after conviction. An objection without stating the grounds gives the trial judge no opportunity to correct the alleged error. [ 2 ] 

### Thus, even if we assumed a jury composition error was present , defendant waived review of any such error when he failed to lodge a contemporaneous objection.

of error or irregularity. ”). 2 State v. Thornton , 284 S o.2d 753, 756 (La. 1973).

### 03 / 15 / 16
S U P R E M E C O U R T O F L O U IS IA N A

N O
. 20 14 -K O -1 55 5
S T A T E O F L O U IS IA N A

V E R S U S
G E R A L D W
. D A H L E M

ON W RIT OF CERTIORARI

TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH O F W ASHINGTON

W E IM E R , J. , di ss en ti ng
. I res pe ct f ul ly di ss en t. A lt ho ug h co rrec tl y no ti ng th at th e pe na lt y ran ge in th e

st at e’ s ch arg e go ve rn s w he th er a co ur t must empan el a si x or tw el ve pe rs on ju ry , th e maj or it y ab so lv es th e di st ric t co ur t f ro m be in g so go ve rn ed

. Th e Lo ui si an a
C on st it ut io n mand at es a de f en da nt ch arg ed w it h an of f en se “ in w hi ch the puni shm ent
is ne ce ssa ri ly co nfine m en t at ha rd la bo r sh al l be tri ed be f or e a ju ry of tw el ve pe rs on s. ”
La

. C on st

. art

. 1, § 1 7( A ). Th e d ef en da nt f aced a ha rd lab or sen te nc e; ho w ev er, he

w as tri ed be f

or e a ju ry of si x pe rs on s. Th eref or e, th e de f

en da nt must be ret rie d.
Th e st at e’ s bi ll of in f

or mati on ch arg ed th e de f en da nt w it h a f

ou rth of f en se of
dr iv in g un de r th e in f

lu en ce (“ D U I”). Th e bi ll of in f or ma t i o n i nd ic at ed th is w as a
vi ol at io n of La

. R

. S

. 14: 98. Unde r the sa m e sta tut e, two pe na lty ran ge s w ere in di cat ed
f or su ch an of

f en se
. O ne st at ut or y pr ov is io n es ta bl is he d a ran ge of in carc erat io n “ at 1
ha rd la bo r f

or no t le ss th an te n no r more tha n th irt y y ears
. ” La

. R

. S

. 14 :9 8( E) (4 )(a) (an ab so lu te f

el on y ). A no th er st at ut or y pr ov is io n es ta bl is he d a range of in carc erat io n

“ w it h or w it ho ut ha rd la bo r f or no t le ss th an te n y ears no r more th an th irt y y ears
. ” La

.

After the rele vant events in this case , L a. R.S. 14:98 was amende d, and the penalty provisions for a 1 fourth offe nse DUI have been separ ately enumer ated as L a. R.S. 14.98.4. See 2014 L a. Acts 385, § 1. Citations i n this diss enting opinion corre spond to the statutes in force during the def endant’ s trial.R

. S

. 14 :9 8( E) (1 )(a) (a rel at iv e f el on y ). W he th er a de f

en da nt f aces th e rel at iv e or
ab so lu te pe na lt y pr ov is io ns of La

. R

. S

. 14 :9 8 de pe nd s on th e de f en da nt ’ s se nt en ci ng
hi st or y
. If a de f

en da nt ch arg ed as a f

ou rth D U I of

f e nd er “ ha s pr ev io us ly be en
req ui red to pa rti ci pa te in su bs ta nc e ab us e tre at ment an d h o me i n c arce rat io n” f or a
pr io r D U I of

f en se , th en th e de f

en da nt f aces th e ab so lu te f

el on y pr ov is io ns of La

. R

. S

. 14 :9 8( E) (4 )(a) , sp eci f

ic al ly a mand at or y se nt en ce of ha rd la bo r if co nv ic te d.

B ecau se th e st at e sp ecified the four th offend er pr ovi si on s of La

. R

. S

. 14 :9 8, bu t
di d no t sp eci f

y w he th er th e s t a t e w a s pr oc eed in g un de r se ct io n (E )(4 )(a) as an
ab so lu te f el on y ( i. e
. –w it h h ard lab or ) or un de r se ct io n (E )(1 )(a) as a rel at iv e f el on y ( i.e .–wi th or wit

hout ha rd la bor ), the bil l of infor

m at ion wa s eq

uiv oc al

. More pr eci se ly

s t a t e d , a nd measu red by th e st an da rd co rrec tl y id en ti f ie d by th is co ur t’ s majo rit y , 2
be cau se th e bi ll of in f

or mati on di d no t act ua ll y in f or m w he th er th e st at e w as ch arg in g
the de fend an t wit

h an ab sol ute or rel at iv e f

el on y , th e bi ll of in f

or mati on w as eq

uiv oc al

on it s f ace. 3

U nd er more typic al ci rcu msta nc es , a de f en da nt must f

il e a req ue st f

or a bi ll of

pa rti cu la rs to cl ari f

y a de f ic ie nt bi ll of in f

or mati on in or de r to pr es erv e th e is su e f or

rev ie w
. H ow ev er, th e ci rcu msta nc es in th is ca s e c a nn ot be f ai rly ch arac te riz ed as 4

T h i s c o u r t h a s l o n g h e l d t

h a t t h e p e n a l t y r a n g e i n d i c a t e d i n t h e s t a t e ’ s c h a r g e s d i c t a t e s w h e t h e r t h e l a r g e s t 2 number of

jurors is require d. See State v. Stanf ord , 15 So.2d 817, 820 (1943) (“the number of jurors to try a ca se is deter

mined by the g ravity

or nature of the c rime cha rg ed”)

.

“ I n a c r i m i n a l p r o s e c u

t i o n , a n a c c u s e d s h a l l b e i n f

o r m e d o f t h e n a t u r e a n d c a u s e o f t h e a c c u s a t i o n a g a i n s t 3 h im

. ” L a
. Co n s t. a

r t. 1 , § 1 3

. T h is c o u

r t h a s e xp la in e d th a

t a b il l o f inf

ormation mu s t “ a ll o w th e c o u r t to d e te r mi n e th e p r o p r ie ty o f th e e v id e n ce which is su b mi tt e d u p o n th e tr ia l in o r d e r th a

t it ma y im p o s e th e corr ect punishment upon a ve rdict of g uilty .” State v. M eunier , 354 So.2d 535, 538 (L a.1978).
Se e , e
. g
. , St a t e v . G a in e y , 3 7 6 So

. 2 d 1 2 4 0 , 1 2 4 2

- 4 3 (L a. 1979) (“This court has long h e ld th a t a s h o r t 4 f o r m i n d i c t m e n t i s n o t s u b j e c t to a tt a c k o n th e g r o u

n d s th a t it d o e s n o t a d e q

u a t e l y i n f o r m t h e d e f e n d a n t o f t h e c ri me c h a

r g e d , b e c a u s e t h e s t a t e i s r e q u i r e d , o n r e q

u e s t f o r a b i l l o f p a

r t i c u l a r s , t o i n f o r m t h e d e f e n d a n t of t he essential fac ts of t he offense charged

. ”)

. S ee also, e.g ., State v. Richthofen , 01-500, p. 34 ( L a
. App. 5 Cir. 11/27/01), 803 So.2 d 1 7 1 , 1 9 2 ( “ T h e ti me f o r te s ti n g th e s u f

f ic ie n c y o f a

n in d ic tm e n t is befor e trial by

a motion to quash or an a pplication for a

bill of particular s.”) ( citing Gainey , supra ).
2typic al be cau se w he th er th e de f en da nt w as tri ed by a si x or tw el ve pe rs on ju ry li es at
th e co re of a co ns ti tu ti on al ly-m an da te d f act f in di ng pr oc es s. Th eref

or e, th is is su e is

rev ie w ab le no tw it hs ta nding th at th e de f en da nt ne it he r f

il ed a pr et ria l req ue st f

or a bi ll
of pa rti cu la rs , no r co nt empo ran eo us ly o bj ect ed wh en th e st at e in tro du ced ev id en ce

at tri al rev eal in g th at th e st at e w as pr os ecu ti ng th e de f en da nt f or an ab so lu te f

el on y
. 5

Ev en ov erl oo ki ng th e f

act th at th e bi ll of in f

or mati on w as eq ui vo cal , on ce th e

st at e in tro du ced ev id en ce th at th e de f en da nt ha d be en pr ev io us ly s e n t e n ced to 6

su bs ta nc e ab us e tre at ment an d ho me in carc erat io n, th e de f en da nt ’ s fa te w as se al ed

. Th at is , s i n c e th e ju ry ha d f ou nd th e de f

en da nt gu il ty af

te r th e st at e in tro du ced

un co nt ro ve rte d ev id en ce th at th e de f en da n t h a d p rev io us ly be en se nt en ced to

su bs ta nc e ab us e tre at ment an d ho me in carc erat io n f or a th ird D U I, th e ju dg e ha d no
di sc ret io n to se nt en ce th e de f en da nt to a n y th in g bu t ha rd la bo r. S ee La

. R

. S

. 14 :9 8( E) (4 )(a)

. It w ou ld ha ve be en f

ar pr ef erab le f or th e di st ric t co ur t, du rin g th e pr et ria l st ag e,

to cal l at te nt io n to th e eq ui vo cat io n in the bill of in f or mati on an d to req ui re th e st at e to
br in g cl ari ty to th e ch arg es so th at th e di st ric t co ur t co ul d, in tu rn , co rrec tl y id en ti f y
th e nu mber of ju ro rs it migh t be req u i r e d t o e mp an el

. H ow ev er, on ce th e di st ric t 7

co ur t w as al ert ed by th e st at e’ s ev id en ce of th e de f en da nt ’ s pr io r se nt en ce of

su bs ta nc e ab us e tre at ment an d ho me in carc erat io n, ju st as much as th e di st ric t co ur t

w as st rip pe d of an y di sc ret io n to se nt en ce th e de f en da nt to in carc erat io n w it ho ut ha rd

See State v. Arvie , 505 So.2d 44, 47 (L a. 1987) (“O n very rar e occa sions, this court has ref used to 5
a p p ly th e c o n te mp o r a

n e o u s o b je c ti o n r u le as a bar to revie w of an err or which was so fundame ntal th a t it struck at the ver

y essenc e of the reliability

of the fa ct-finding proce ss.”).
See State Exhibi t 11. 6
D i s t ri c t c o u r t j u d g e s a r e b r o a d l y e m

p o w e r e d to “ is s u e
... a ll

... n e e d f u l w r it s , o r d e r s , a

n d p r o c e s s i n a i d 7 of the jurisdiction of his court.” L a. Const. art. V, § 2.
3la bo r, so , to o, w as th e co ur t st rip pe d of th e ab il it y to pr oc eed w it h a si x pe rs on ju ry
.

S ee La

. C on s t

. a r t

. I, § 17 (A ) (“ A cas e in w hi ch th e pu ni sh ment is ne ces sa ril y

c o n f i n e ment at ha rd la bo r sh al l be tri ed be f or e a ju ry of tw el ve pe rs on s
. . . . ”)

. (E mph as is ad de d. )

In it s f oc us on th e mult ip le bi ll se nt en ce th at th e di st ric t co ur t impo se d in pl ace
of th e or ig in al se nt en ce f

or th e in st an t of

f en se , I be li ev e th e majo rit y of th is co ur t ha s
f al le n f ur th er in to erro r. Th e majo rit y rel ie s on S ta te v. Jo n es , 05- 0226 (L a. 2/ 22 /0 6) , 92 2 S o. 2d 50 8, f

or th e pr op os it io n th at no t al l co ns ti tu ti on al erro rs req ui re rev ers al

. In Jo n es , th e d e f

e n d a n t w a s in co rrec tl y tri ed by a ju ry of tw el ve , rat he r th an si x.
U ti li zi ng a h a r ml e s s erro r an al y si s, th e Jo n es co ur t f ou nd th at th e de f

en da nt ’ s

co nv ic ti on by th e un an imou s tw el ve pe rs on ju ry di d no t pr e j ud ic e th e de f

en da nt

. Jo n es is in ap po si te to thi s ca se
. Th e de f en da nt in Jo n es es se nt ia ll y rece iv ed tw ic e th e

nu mber of co ns ti tu ti on al ly mand at ed f act f in de rs
. S imil arl y , in an ot he r cas e ci te d by
th e majo rit y , S ta te v. B ro w n , 11 -1 04 4 (L a. 3/ 13 /1 2) , 85 S o. 3d 52 , th e de f en da nt w as
al so in co rrec tl y tri ed by a ju ry of tw el ve , rat he r th an si x. In st ead of a un an imou s ju ry , th e de f en da nt in B ro w n w as f

ou nd gu il ty by th e mi n i mum th res ho ld of te n ju ro rs
. C it in g Jo n es , th is co ur t, in B ro w n , f ou nd th at th e erro ne ou s ju ry co mpo si ti on di d no t

r e q u i r e rev ers al

. W e ex pl ai ne d in B ro w n th at , be cau se La

. C on st

. art

. 1, § 1 7 h a d
be en amend ed to al lo w th e jo in de r of ab so lu te an d rel at iv e f el on ie s an d a tri al of th e joi ne d of f en se s by a twe lve pe rs on jur y , inc or re ct ly tr y ing a sol e re la

tiv e fel ony ch ar ge 8

to a tw el ve pe rs on ju ry w as no lo ng er a ju ris di ct io na l de f ect

. B ro w n , 11 -1 04 4 at 5- 6,
85 S o. 3d at 55 (“ [ T] he ru le ba rri ng tr ia l of a six -p er son jur y of f en se in a tw el ve -p ers on

See 1997 L a. Ac ts 1502, § 1, approved O ctober 3, 1998, eff

ective N ovember

5, 1998. 8
4for

um no lo ng er ap pl ie s in al l in st an ces and he nc e ha s los t its jur isd ic tio na l as pe ct ....” ) (q uo ti ng Jo n es , 05 -0 22 6 at 5, 92 2 S o. 2d at 51 6 (W ei mer, J. , co nc ur rin g) ).

In th e in st a n t cas e, si x of th e co ns ti tu ti on al ly mand at ed tri ers of f act di d no t

pa rti ci pa te in th e de f

en da nt ’ s tri al

. S ee La

. C on st

. art

. I, § 17 (A ); se e al so La

. C

. C r. P

.
art

. 78 2. In st ark nu meric te rms, an d in c o nt ras t to bo th Jo n es an d B ro w n , th e
de f en da nt rece iv ed ha lf of th e tw el ve f act f in de rs gu aran te ed hi m by th e C on st it ut io n.
The re for e, re pla ci ng the de fend an t’s se nte nc e st emm in g f ro m a co nst itu tio na lly infir m
gu il ty ve rd ic t w it h a mult ip le -b il l se nt en ce is no t ha rmles s. Es se nt ia ll y , rep la ci ng th e
de f en da nt ’ s f ou rth D U I se nt en ce, w hi ch w as pr ed ic at ed up on a gu il ty ve rd ic t is su ed by ha lf the numbe r of req ui red f act f in de rs , w it h a mult ip le bi ll se nte nc e, is no diffe re nt
th an rep la ci ng th e pr es ump ti on of in no cen ce w it h an as su mpti on of gu il t. N ot on ly is
th is ba d po li cy , bu t it ig no res th at La

. C on st

. art

. I, § 17 (A ) mand at es a tri al by tw el ve
f act f in de rs f or ab so lu te f

el on ie s.
F in al ly, I must po in t ou t th at th e majo rit y ha s ig no red a co ns ti tu ti on al mand at e

as a co ns eq ue nc e of go in g to gr eat le ng th s to av oi d th e ve ry is su e th is co ur t gr an te d

w rit s to ad dr es s. Th e majo rit y reco gn iz es th at th is co ur t gr an te d w rit s to res ol ve th is
is su e: “ w he th er tri al by a ju ry co mpo se d of f ew er ju ro rs th an r e q u i r e d b y la w is a

no n- w ai va bl e st ru ct ur al de f ect

. ” H ow ev er, ev en af

te r co nf in in g th e pa rti es ’ br ie f

in g

to th is is su e, th e majo rit y “ de cl in e[ s] to reac h th e br oa de r ju ry co mpo si ti on is su e in
th is cas e. ” S ta te v. D ah le m , 14 -1 55 5, sl ip op
. at 1 (L a.

__ /

__ /1 6)

. N ev ert he le ss , th e
is su e, as f ramed , an sw ers it se lf w he n on e co ns id ers th e so ur ce of th e req ui remen t f or

tw el ve ju ro rs
. B ecau se th e pr ed ic at e th ird D U I of f en se req ui red th e di st ric t co ur t to

se nt en ce th e de f

en da nt to ha rd la bo r, th e de f en da nt w as en ti tl ed to a tri al by a tw el ve
pe rs on ju ry
. Th is ju ry co mpo si ti on is cas t in mand at or y te rms, bo th in th e Lo ui si an a

5C on st it ut io n an d i n t he C od e o f C rimin al P ro ced ur e. S ee La

. C on st

. art

. I, § 17 (A ) (“ A cas e in w hi ch th e pu ni sh ment is ne ces sa ril y co nf in ement at ha rd lab or sh al l be
tri ed be f or e a ju ry of tw el ve pe rs on s, te n of w ho m must co nc ur to ren de r a ve rd ic t. ”);

an d La

. C

. C r. P

. art

. 78 2 (“ C as es in w hi ch pu ni sh ment is ne ces sa ril y co nf in ement at
ha rd la bo r sh al l be tri ed by a ju ry co mpo se d of tw el ve ju ro rs , te n of w ho m must

co nc ur to ren de r a ve rd ic t. ”). H ere, bo th ou r st at e C on st it ut io n an d an art ic le of ou r
C od e of C rimin al P ro ced ur e ha v e es ta bl is he d a tw el ve -p ers on ju ry as a mini mal

req ui remen t f

or f act f in di ng in ab so lu te f

el on y cas es ; i t i s n o t f

or th is co ur t to sa y
di f f eren tl y
. Th is cas e is un li ke Jo n es an d B ro w n , wh ere r ev ers al wa s n ot req ui red
be cau se th e de f

en da nt s in th os e cas es rece iv ed tw ic e th e nu mber of f act f in de rs th an
th e mini mal nu mber gu aran te ed by t he C on st it ut io n.
In co nc lu si on , th is an al y si s do es no t de cl are th e de f en da nt in no cen t. Th is

an al y sis de te rmin es it is be y on d de ba te th at th e de f en da nt wa s tr ie d by ha lf the num be r
of f act f in de rs th e Lo ui s i a n a C on st it ut io n req ui res
. B ecau se I f in d th is an al y si s

co mpu ls or y un de r ou r st at e C on st it ut io n, I must res pe ct f ul ly d is se nt

.

6

### 03/15/16

S UPREME COURT OF LOUISIANA
NO

. 2014 -KO- 1555
S TATE OF LOUISIANA
VE RSUS
G ERALD W. DAHLEM
O N WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF WASHINGTON

H

ughes, J., concurs in the result.