                               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-KO-1555       STATE OF LOUISIANA v. GERALD W. DAHLEM (Parish of Washington)
                   (Habitual 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 status, which required 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 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.
03/15/16


                     SUPREME COURT OF LOUISIANA

                               NO. 2014-KO-1555

                            STATE OF LOUISIANA

                                     VERSUS

                            GERALD W. DAHLEM

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FIRST CIRCUIT, PARISH OF WASHINGTON


CRICHTON, 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 whether defendant was

denied a fair trial and due process of law because he was, without

contemporaneous objection at trial, tried by a six-person jury, instead of a twelve-

person jury, on a fourth offense Driving While Intoxicated (“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 conviction and his sentence. For reasons that follow, we find that due

to defendant’s multiple offender status and subsequent sentence as such, his trial

by a six-person jury was not an error requiring his conviction be reversed or his

sentence vacated. We therefore affirm the lower courts’ rulings and decline to

reach the broader jury composition issue in this case.




                                         1
                         FACTS AND PROCEDURAL HISTORY

          Defendant was arrested in Bogalusa, Louisiana, on November 10, 2011, for

DWI, fourth offense, after a Louisiana state trooper 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 odor 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 state 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 license (a violation of La. R.S. 32:415) (Counts II, III,

and IV, respectively). 1 The defendant pleaded 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 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 motor 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
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 3
                                                   2
       A jury trial began on April 30, 2012, at which time the state severed counts

two through four, and proceeded to trial only on 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).         Considering the bill of information and the

related penalty range, the prosecution and defense chose a jury 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. On 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 probation,

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 lamp or separate lamp shall be so
constructed and placed as to illuminate 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 under 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 his 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 sentencing 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 without the benefit of parole,
       probation, or suspension of sentence.
                                             ***


                                                 3
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 appealed 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 law 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 of La. R.S. 40:966, on June
26, 1997, 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, beginning 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 appeal 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 discretion 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 abuse 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 court 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.

6Defendant 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.
                                                  4
appellate court disagreed, finding that because the 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 raised 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-person 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 not 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 Court subsequently granted the defendant’s writ application, with the

specific instruction that the Court’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 ANALYSIS

                                         5
          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 Court 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 trial.

          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 first asserted on appeal. According to the State, a fourth offense

DWI is subject to a six- person jury, and La. R.S. 14:98(E)(4)(a) is only an

enhancement provision and does not dictate a six- or twelve-person jury. If the

state had failed to prove the defendant’s predicate offenses, sentencing under the

enhanced provision 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 by the unanimous jury verdict.

          As stated above, the narrow issue defined by this Court 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:


                                                6
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 was 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 of

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 Court has previously held that

“trial 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 Court 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 and 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); exclusion
      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 shall 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.
                                             7
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). Utilizing 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, however, the Court

stated in a footnote, “”[o]ur 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 Court 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 upon defendant’s trial by a twelve-person jury, where defendant should have

had a six-person jury, this Court 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 Court deemed it unnecessary to address

whether the error in jury composition actually prejudiced respondent’s case,

                                           8
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 outset 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 reserving 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 postconviction 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, 466 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
       produced 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 performance 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.


                                                 9
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. Consequently, 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 original 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, charged

defendant 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 motor 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 alcoholic 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 bill of information 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.



                                              10
the mode of trial. 10 Based solely upon the information on the face of the bill of

information, the defendant in this case was properly tried before a six person jury,

as the sentencing range for a fourth offense DWI, as listed in this particular bill of

information, is not mandatory hard labor. Specifically, La. R.S. 14:98(E)(1)(a), in

effect at the time of defendant’s offense, provided that operating a vehicle while

intoxicated, fourth offense, carried the following penalty range with or without

hard labor:

       . . . on a conviction of a fourth or subsequent 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 years 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

information 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 inappropriate 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 separate 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 Apprendi 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 requiring a
defendant’s conviction be reversed and a sentence vacated.
                                               11
of sentence.          During trial, documentary evidence (State’s Exhibit #11) was

introduced that established that after his DWI, 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 an 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 sentence 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 consistent 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 consideration 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 of 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 extent 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 entire period of probation.

State v. Dahlem, supra, at 596.


                                                   12
offense DWI. However, because the trial judge did not specifically outline his

consideration of this evidence, it is 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 explicitly make such a finding during the defendant’s

sentencing proceedings. Moreover, the 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 would 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, if 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 Court’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

defendant admitted the allegations, and the trial court 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, the multiple

offender bill in this instance resulted in an enhanced recidivist sentence that

displaced the original sentence, placing the defendant in the same position he

                                         13
would have been 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,

we decline to find any error that warrants reversal of the defendant’s conviction or

sentence in this particular instance.

                                         CONCLUSION

         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 status, which required 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. 14:98 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
         predicate # 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 case 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 DWI, 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).

                                                   14
the defendant’s conviction and sentence.

AFFIRMED.




                                           15
03/15/16


                              SUPREME COURT OF LOUISIANA

                                             NO. 2014-KO-1555

                                        STATE OF LOUISIANA

                                                     VERSUS

                                         GERALD W. DAHLEM


KNOLL, 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 his 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, it

does not transfigure the relative felony with which the District Attorney charged

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 time 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 grounds
         The 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 So.2d 753, 756 (La. 1973).


                                                      2
03/15/16

                      SUPREME COURT OF LOUISIANA


                                      NO. 2014-KO-1555

                                  STATE OF LOUISIANA

                                            VERSUS

                                  GERALD W. DAHLEM

                   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                        FIRST CIRCUIT, PARISH OF WASHINGTON



WEIMER, J., dissenting.

       I respectfully dissent. Although correctly noting that the penalty range in the

state’s charge governs whether a court must empanel a six or twelve person jury, the

majority absolves the district court from being so governed.                       The Louisiana

Constitution mandates a defendant charged with an offense “in which the punishment

is necessarily confinement at hard labor shall be tried before a jury of twelve persons.”

La. Const. art. 1, § 17(A). The defendant faced a hard labor sentence; however, he

was tried before a jury of six persons. Therefore, the defendant must be retried.

       The state’s bill of information charged the defendant with a fourth offense of

driving under the influence (“DUI”). The bill of information indicated this was a

violation of La. R.S. 14:98. Under the same statute, two penalty ranges were indicated

for such an offense.1 One statutory provision established a range of incarceration “at

hard labor for not less than ten nor more than thirty years.” La. R.S. 14:98(E)(4)(a)

(an absolute felony). Another statutory provision established a range of incarceration

“with or without hard labor for not less than ten years nor more than thirty years.” La.

1
  After the relevant events in this case, La. R.S. 14:98 was amended, and the penalty provisions for a
fourth offense DUI have been separately enumerated as La. R.S. 14.98.4. See 2014 La. Acts 385, § 1.
Citations in this dissenting opinion correspond to the statutes in force during the defendant’s trial.
R.S. 14:98(E)(1)(a) (a relative felony). Whether a defendant faces the relative or

absolute penalty provisions of La. R.S. 14:98 depends on the defendant’s sentencing

history. If a defendant charged as a fourth DUI offender “has previously been

required to participate in substance abuse treatment and home incarceration” for a

prior DUI offense, then the defendant faces the absolute felony provisions of La. R.S.

14:98(E)(4)(a), specifically a mandatory sentence of hard labor if convicted.

        Because the state specified the fourth offender provisions of La. R.S. 14:98, but

did not specify whether the state was proceeding under section (E)(4)(a) as an

absolute felony (i.e.–with hard labor) or under section (E)(1)(a) as a relative felony

(i.e.–with or without hard labor), the bill of information was equivocal. More precisely

stated, and measured by the standard correctly identified by this court’s majority,2

because the bill of information did not actually inform whether the state was charging

the defendant with an absolute or relative felony, the bill of information was equivocal

on its face.3

        Under more typical circumstances, a defendant must file a request for a bill of

particulars to clarify a deficient bill of information in order to preserve the issue for

review.4 However, the circumstances in this case cannot be fairly characterized as



2
  This court has long held that the penalty range indicated in the state’s charges dictates whether the largest
number of jurors is required. See State v. Stanford, 15 So.2d 817, 820 (1943) (“the number of jurors
to try a case is determined by the gravity or nature of the crime charged”).
3
 “In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against
him.” La. Const. art. 1, § 13. This court has explained that a bill of information must “allow the court to
determine the propriety of the evidence which is submitted upon the trial in order that it may impose the
correct punishment upon a verdict of guilty.” State v. Meunier, 354 So.2d 535, 538 (La.1978).
4
  See, e.g., State v. Gainey, 376 So.2d 1240, 1242-43 (La. 1979) (“This court has long held that a short
form indictment is not subject to attack on the grounds that it does not adequately inform the defendant of
the crime charged, because the state is required, on request for a bill of particulars, to inform the defendant
of the essential facts of the offense charged.”). See also, e.g., State v. Richthofen, 01-500, p. 34
(La.App. 5 Cir. 11/27/01), 803 So.2d 171, 192 (“The time for testing the sufficiency of an indictment is
before trial by a motion to quash or an application for a bill of particulars.”) (citing Gainey, supra).

                                                      2
typical because whether the defendant was tried by a six or twelve person jury lies at

the core of a constitutionally-mandated factfinding process. Therefore, this issue is

reviewable notwithstanding that the defendant neither filed a pretrial request for a bill

of particulars, nor contemporaneously objected when the state introduced evidence

at trial revealing that the state was prosecuting the defendant for an absolute felony.5

         Even overlooking the fact that the bill of information was equivocal, once the

state introduced evidence6 that the defendant had been previously sentenced to

substance abuse treatment and home incarceration, the defendant’s fate was sealed.

That is, since the jury had found the defendant guilty after the state introduced

uncontroverted evidence that the defendant had previously been sentenced to

substance abuse treatment and home incarceration for a third DUI, the judge had no

discretion to sentence the defendant to anything but hard labor. See La. R.S.

14:98(E)(4)(a).

         It would have been far preferable for the district court, during the pretrial stage,

to call attention to the equivocation in the bill of information and to require the state to

bring clarity to the charges so that the district court could, in turn, correctly identify

the number of jurors it might be required to empanel.7 However, once the district

court was alerted by the state’s evidence of the defendant’s prior sentence of

substance abuse treatment and home incarceration, just as much as the district court

was stripped of any discretion to sentence the defendant to incarceration without hard



5
   See State v. Arvie, 505 So.2d 44, 47 (La. 1987) (“On very rare occasions, this court has refused to
apply the contemporaneous objection rule as a bar to review of an error which was so fundamental that
it struck at the very essence of the reliability of the fact-finding process.”).
6
    See State Exhibit 11.
7
 District court judges are broadly empowered to “issue … all … needful writs, orders, and process in aid
of the jurisdiction of his court.” La. Const. art. V, § 2.

                                                   3
labor, so, too, was the court stripped of the ability to proceed with a six person jury.

See La. Const. art. I, § 17(A) (“A case in which the punishment is necessarily

confinement at hard labor shall be tried before a jury of twelve persons ....”).

(Emphasis added.)

         In its focus on the multiple bill sentence that the district court imposed in place

of the original sentence for the instant offense, I believe the majority of this court has

fallen further into error. The majority relies on State v. Jones, 05-0226 (La. 2/22/06),

922 So.2d 508, for the proposition that not all constitutional errors require reversal.

In Jones, the defendant was incorrectly tried by a jury of twelve, rather than six.

Utilizing a harmless error analysis, the Jones court found that the defendant’s

conviction by the unanimous twelve person jury did not prejudice the defendant.

Jones is inapposite to this case. The defendant in Jones essentially received twice the

number of constitutionally mandated factfinders. Similarly, in another case cited by

the majority, State v. Brown, 11-1044 (La. 3/13/12), 85 So.3d 52, the defendant was

also incorrectly tried by a jury of twelve, rather than six. Instead of a unanimous jury,

the defendant in Brown was found guilty by the minimum threshold of ten jurors.

Citing Jones, this court, in Brown, found that the erroneous jury composition did not

require reversal. We explained in Brown that, because La. Const. art. 1, § 17 had

been amended to allow the joinder of absolute and relative felonies and a trial of the

joined offenses by a twelve person jury,8 incorrectly trying a sole relative felony charge

to a twelve person jury was no longer a jurisdictional defect. Brown, 11-1044 at 5-6,

85 So.3d at 55 (“[T]he rule barring trial of a six-person jury offense in a twelve-person




8
    See 1997 La. Acts 1502, § 1, approved October 3, 1998, effective November 5, 1998.

                                                4
forum no longer applies in all instances and hence has lost its jurisdictional aspect ....”)

(quoting Jones, 05-0226 at 5, 922 So.2d at 516 (Weimer, J., concurring)).

       In the instant case, six of the constitutionally mandated triers of fact did not

participate in the defendant’s trial. See La. Const. art. I, § 17(A); see also La. C.Cr.P.

art. 782. In stark numeric terms, and in contrast to both Jones and Brown, the

defendant received half of the twelve factfinders guaranteed him by the Constitution.

Therefore, replacing the defendant’s sentence stemming from a constitutionally infirm

guilty verdict with a multiple-bill sentence is not harmless. Essentially, replacing the

defendant’s fourth DUI sentence, which was predicated upon a guilty verdict issued

by half the number of required factfinders, with a multiple bill sentence, is no different

than replacing the presumption of innocence with an assumption of guilt. Not only is

this bad policy, but it ignores that La. Const. art. I, § 17(A) mandates a trial by twelve

factfinders for absolute felonies.

       Finally, I must point out that the majority has ignored a constitutional mandate

as a consequence of going to great lengths to avoid the very issue this court granted

writs to address. The majority recognizes that this court granted writs to resolve this

issue: “whether trial by a jury composed of fewer jurors than required by law is a

non-waivable structural defect.” However, even after confining the parties’ briefing

to this issue, the majority “decline[s] to reach the broader jury composition issue in

this case.” State v. Dahlem,14-1555, slip op. at 1 (La. __/ __/16). Nevertheless, the

issue, as framed, answers itself when one considers the source of the requirement for

twelve jurors. Because the predicate third DUI offense required the district court to

sentence the defendant to hard labor, the defendant was entitled to a trial by a twelve

person jury. This jury composition is cast in mandatory terms, both in the Louisiana



                                             5
Constitution and in the Code of Criminal Procedure. See La. Const. art. I, § 17(A)

(“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.”);

and La. C.Cr.P. art. 782 (“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.”). Here, both our state Constitution and an article of our

Code of Criminal Procedure have established a twelve-person jury as a minimal

requirement for factfinding in absolute felony cases; it is not for this court to say

differently. This case is unlike Jones and Brown, where reversal was not required

because the defendants in those cases received twice the number of factfinders than

the minimal number guaranteed by the Constitution.

      In conclusion, this analysis does not declare the defendant innocent. This

analysis determines it is beyond debate that the defendant was tried by half the number

of factfinders the Louisiana Constitution requires. Because I find this analysis

compulsory under our state Constitution, I must respectfully dissent.




                                          6
03/15/16



                       SUPREME COURT OF LOUISIANA

                                 NO. 2014-KO-1555

                              STATE OF LOUISIANA

                                     VERSUS

                              GERALD W. DAHLEM

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF WASHINGTON


Hughes, J., concurs in the result.
