                         Supreme Court of Louisiana
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 -1034      STATE OF LOUISIANA v. WILLIAM SERIGNE & LIONEL SERIGNE (Parish of
                  St. Bernard)

                  For the foregoing reasons, we reverse the court of appeal’s
                  determination in errors patent review that Lionel Serigne’s
                  conviction and sentence must be set 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 William 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 Lionel and William are entitled to
                  new trials 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   previously   pretermitted
                  assignments of error. In addition, we preserve William’s claim of
                  prejudicial   misjoinder  for  appellate   review   after  further
                  proceedings in the district court.
                  REVERSED AND REMANDED.
12/06/17


                     SUPREME COURT OF LOUISIANA

                                 No. 2016-K-1034

                            STATE OF LOUISIANA

                                     VERSUS

                 WILLIAM SERIGNE & LIONEL SERIGNE

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FOURTH CIRCUIT, 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. Other family members, B.M. and

M.S., also came forward to accuse William Serigne of sexually abusing them.

Because of these accusations, Lionel was indicted 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 aggravated incest of his daughter, M.S.

      After the trial court denied the state’s motion to try the defendants together,

the 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 and

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. William 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 motions to sever,
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 victim’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 aggravated 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

labor without benefit of parole, probation, or suspension of sentence.

       The 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 Lionel 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 mandatory death penalty for first degree murder violated
the Eighth Amendment. In Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212
(1976), the U.S. Supreme Court found that 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).
                                               2
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 support 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 evidence

presented to the grand jury that would support the state’s allegation of joint

participation in a rape. 2 The 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 court of appeal ordered that William receive a new trial and

pretermitted consideration of all 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 therefore unable to waive a jury

trial. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 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 Texas 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
         The grand jury testimony is not included in the appellate record submitted to this court
to review.
       3
        There was no Brady claim assigned as error and the court of appeal reached this issue
sua sponte after it obtained the grand jury transcript.
                                               3
(such as their understanding of the history and meaning of the Cruel and Unusual

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 impose 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., 408 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 that 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 grappled 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 of

                                         4
      classification of crimes in Louisiana. Murder is still a crime, and,
      when our legislature 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 Louisiana
      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 classification 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 still classified 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, in 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 before a unanimous,

sequestered 12-person jury. Dicta suggests 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 Furman, 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 Criminal


      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 sentence, as 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 and 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
      cannot be applied in a discriminatory manner.

                                                5
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, Flood and Holmes 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 under 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 capital case (including 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 apply 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

acknowledged 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 neglect 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 sentence, only the issue of the ultimate penalty of
       death is strictly required to be put before the jury.

                                                 6
never faced the prospect of the death penalty, validly waived his right to a jury trial

and never challenged that 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 remand 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 appeal 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 have 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.

The 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.

                                             7
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

discretion 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 necessary 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 trials for Lionel and William in

accordance 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 with 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 in

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, the allegation of joint participation in the indictment, while not necessary as an
element of the offense, was likely included to obtain a joint trial of the co-defendants.
                                               8
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 William 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 Lionel and William are entitled to new trials

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 previously pretermitted

assignments of error. In addition, we preserve William’s claim of prejudicial

misjoinder for appellate review after further proceedings in the district court.

REVERSED AND REMANDED




                                          9
