STATE OF LOUISIANA v. PRECIOUS SIMONE HICKS (2026)

The State of Louisiana charged the defendant. Precious Simone Hicks, by amended bill of information with possession with intent to distribute twenty-eight grams or more of a schedule II controlled dangerous substance (methamphetamine) (count I), a violation of La. R.S. 40:967(A)(1) and (B)(1)(b); and possession of less than two grams of a schedule II controlled dangerous substance (amphetamine) (count II), a violation of La. R.S. 40:967(C)(1). The defendant pled not guilty to the charges and moved to suppress the evidence against her. After a hearing, the trial court denied the motion to suppress. Following a jury trial, the six-person jury unanimously found the defendant guilty as charged on both counts. The defendant moved for a post-verdict judgment of acquittal, which the trial court denied. The trial court sentenced the defendant to ten years imprisonment at hard labor on count I and to two years imprisonment at hard labor on count II, to be served concurrently with the sentence on count I.

The State subsequently filed a habitual offender bill of information alleging, on count I, the defendant was a fourth-or-subsequent-felony offender. The defendant moved to quash the habitual offender bill of information. Following a hearing, the trial court denied the motion to quash, adjudicated the defendant a fourth-felony offender, vacated the previously imposed sentence on count I, and sentenced the defendant to thirty-five years imprisonment at hard labor without the benefit of probation or suspension of sentence on that count. The defendant filed a motion to reconsider sentence, which the trial court denied. The defendant now appeals, challenging the sufficiency of the evidence, the denial of the motion to suppress, and the denial of the motion to quash the habitual offender bill of information. For reasons that follow, we vacate the defendant's convictions, the habitual offender adjudication, and sentences and remand the matter to the trial court for further proceedings.

PATENT ERROR

Pursuant to La. Code Crim. P. art. 920(2), this court routinely conducts a review of all appeals for errors discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Ledezma, 2024-0258 (La. App. 1st Cir. 12/27/24), 404 So.3d 988, 1000, writ denied, 2025-00114 (La. 4/8/25), 405 So.3d 574. After a careful review of the record, we note the following patent error. The defendant's jury was not composed of the constitutionally required number of jurors. See La. Const. art. I, § 17(A); La. R.S. 40:967(B)(1)(b).

In criminal cases, jury trials and waiver of same are governed by La. Const. art. I, § 17(A) and La. Code Crim. P. art. 782(A). Louisiana Constitution article I, § 17(A) pertinently provides:

A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all 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.

See also La. Code Crim. P. art. 782(A). Three classes of felony cases are recognized by this constitutional article: capital, absolute, and relative. See State v. Breaux, 2024-00737 (La. 5/9/25), 408 So.3d 899, 903. Pertinent herein are absolute and relative felonies. An absolute felony is a felony “where a conviction would necessarily mean confinement at hard labor.” Id. at 903-04. A relative felony is a felony where “a conviction would not necessarily mean confinement at hard labor.” Id. at 904. The bill of information charged the defendant with both an absolute and a relative felony because count I is at hard labor and count II is with or without hard labor.

Joinder of felonies and the mode of a criminal trial are governed by La. Const. art. I, § 17(B) and La. Code Crim. P. art. 493.2. Louisiana Constitution article I, 17(B) provides:

Notwithstanding the provisions of Article 493, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.[1]

The Louisiana Supreme Court has previously found “[t]rial by an incorrect number of jurors is an error that [is] recognize[d] ex proprio motu” and “held that, in cases tried by a jury composed of either more than or less than the correct number of jurors, the verdict is null.” State v. Nedds, 364 So.2d 588-89 (La. 1978), abrogated by State v. Jones, 2005-0226 (La. 2/22/06), 922 So.2d 508; State v. Smith, 367 So.2d 857, 858 (1979) (per curiam), abrogated by State v. Jones, 2005-0226 (La. 2/22/06), 922 So.2d 508. In Jones, 922 So.2d at 513, the Court found “the empaneling of a jury composed of a greater number of persons than constitutionally required is no longer a non-waivable jurisdictional defect subject to automatic nullity.” The Court, however, clarified that its holding did 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, 922 So.2d at 513 n.9.

In State v. Dahlem, 2014-1555 (La. 3/15/16), 197 So.3d 676, 685, the Louisiana Supreme Court upheld a conviction for driving while intoxicated fourth offense, a violation of La. R.S. 14:98, where the defendant was tried before a six-person jury. In that case, the Court granted the writ application “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.” Dahlem, 197 So.3d at 677. The Court, however, was unable to reach the jury composition issue and reserved the issue for review another day stating that “[e]ven 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).” Id. at 684-85. Notably, in Dahlem, the Court observed that its holding in Jones did “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.” Dahlem, 197 So.3d at 681.

In the instant case, as previously stated, the State charged the defendant by amended bill of information with possession with intent to distribute twenty-eight grams or more of methamphetamine, a violation of La. R.S. 40:967(A)(1) and (B)(1)(b), and possession of less than two grams of amphetamine, a violation of La. R.S. 40:967(C)(1). The penalty for possession with intent to distribute twenty-eight grams or more of methamphetamine shall be imprisonment at hard labor for not less than one year nor more than twenty years and in addition, a fine of not more than fifty thousand dollars may be imposed. La. R.S. 40:967(B)(1)(b). The penalty for possession of less than two grams of amphetamine shall be imprisonment, with or without hard labor, for not more than two years and, in addition, a fine of not more than five thousand dollars may be imposed. La. R.S. 40:967(C)(1).

The defendant was charged with an absolute felony, possession with intent to distribute methamphetamine, which required that she be tried by a jury composed of twelve jurors and a relative felony, possession of amphetamine, which required she be tried by a jury composed of six jurors. Because the offenses were joined in one bill of information and were based on the same act or transaction, which constituted part of a common scheme, the two offenses should have been tried by a jury composed of twelve jurors, all of whom must have concurred to render a verdict. See La. Const. art. I, § 17(A); La. Code Crim. P. art. 493.2. Instead, the jury herein was composed of six jurors, all of whom concurred in the verdicts.

We interpret the Louisiana Constitution using the same methods as statutes and other written instruments. Therefore, “[w]here the language of the [constitution] is clear and unambiguous and does not lead to absurd consequences, it is applied as written.” Breaux, 408 So.3d at 903. Louisiana Constitution article I, § 17(A) clearly and unambiguously requires that a defendant charged with an absolute felony be tried by a jury composed of twelve members, all of who must concur to render a verdict. As the defendant was charged with an absolute felony and a relative felony in a single bill of information, we find the composition of her jury, which was composed of six members, violated her right to be tried by a jury composed of twelve members as guaranteed under Article I, § 17(A) of Louisiana's Constitution.

CONCLUSION

For the foregoing reasons, we vacate the defendant's convictions, habitual offender adjudication, and sentences ² and remand this matter to the trial court for further proceedings.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES VACATED; REMANDED.

I must respectfully dissent in part. I agree with the majority that under the Louisiana Supreme Court's decision in State v. Breaux, 2024-00737 (La. 5/9/25), 408 So.3d 899, the defendant was constitutionally entitled to trial before a twelve-person jury. Count I, as amended, charged the defendant with an offense necessarily punishable by confinement at hard labor. Because the State joined Count II in the same bill of information as Count I, La. Const. art. I, § 17(A), together with La. C.Cr.P. art. 493.2, required trial to proceed before a unanimous twelve-person jury. Accordingly, I do not disagree that the defendant was tried before a jury that did not conform to the constitutional mode of trial.

I must part with the majority, however, on the proper remedy for that constitutional violation. The majority concludes that because the defendant was tried before a six-person jury, her convictions, habitual offender adjudication, and sentences must be vacated in totality. In my view, that conclusion extends the holding of Breaux beyond the scope of the Louisiana Supreme Court's holding therein.

In Breaux, a mode-of-trial case about how to classify felonies under La. Const. art. I, § 17(A) for jury-size purposes, the Louisiana Supreme Court resolved a classification question. There, the supreme court explained that La. Const. art. I, § 17(A) creates distinct classes of felonies and that the proper mode of trial depends upon the class of felony charged. The supreme court explained that our constitution creates different classes of felonies, including absolute felonies, which are offenses where a conviction necessarily results in confinement at hard labor. These require a twelve-person unanimous jury. Breaux, 408 So.3d at 903-904. As to relative felonies, offenses where punishment may be with or without hard labor, the supreme court held that these may be tried by a six-person unanimous jury. Breaux, 408 So.3d at 904. Breaux clarifies that the mode of trial is determined by the class of felony charged, not by what sentence is later imposed or by how the case happens to be tried.

Thus, Breaux establishes what type of jury is constitutionally required to try a particularly-charged offense. Breaux does not, however, address whether empaneling too few jurors constitutes a structural error requiring automatic reversal,¹ whether such an error is subject to a harmless-error analysis,² or whether the error may be forfeited by the failure to object.³

In my review of the applicable law, I find that those questions remain governed by the Louisiana Supreme Court's decision in State v. Dahlem, 2014-1555 (La. 3/15/16), 197 So.3d 676. Significantly, the supreme court granted certiorari in Dahlem specifically 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.” Dahlem, 197 So.3d at 677. The supreme court expressly declined to answer that question. Instead, the supreme court resolved the case on narrower grounds, concluding that the defendant's subsequent habitual offender adjudication rendered any error in the original sentence moot. Dahlem, 197 So.3d at 684-85. In doing so, the supreme court deliberately reserved the broader issue for another day.

Constitutional violations do not invariably require automatic reversal. The Louisiana Supreme Court has recognized that not every constitutional error requires automatic reversal. For example, in State v. Jones, 2005-0226 (La. 2/22/06), 922 So.2d 508, the supreme court held that empaneling more jurors than constitutionally required was not a jurisdictional defect requiring automatic nullity, but instead “falls within the vast category of trial errors which are subject to harmless error analysis and which warrant reversal only where the defendant is actually prejudiced.” Jones, 922 So.2d at 511. The supreme court expressly limited its holding in Jones, noting it did “not guarantee the same result would be reached if a lesser number of jurors had been empaneled ․ or if there was not unanimity of verdict.” Jones, 922 So.2d at 513 n.9. The supreme court expressly left the “too few jurors” question unanswered. While Jones preserves the possibility that trial before too few jurors may warrant different treatment, it does not resolve the issue currently before this court.

Accordingly, I find that neither Jones nor Dahlem holds that trial before fewer jurors than constitutionally required automatically invalidates an otherwise valid conviction, nor does Breaux resolve that unanswered question. Rather, Breaux answers only the antecedent question of what size tribunal is constitutionally required.

The majority's opinion effectively classifies this jury-composition defect as structural; however, the Louisiana Supreme Court has not done so. Indeed, the supreme court in Dahlem counsels restraint. Had our supreme court intended to hold that trial before too few jurors invariably requires reversal, it had the opportunity to do so. Instead, the Dahlem court expressly declined to resolve that question. Until our supreme court provides such guidance, I believe this court should refrain from announcing a remedial rule that our supreme court has deliberately left open.

I do not find it insignificant that no objection was lodged to the composition of the jury. While I agree that the absence of an objection does not necessarily resolve the issue, it underscores the unsettled nature of the question before us. The majority's decision effectively recognizes a new category of structural error reviewable as patent error despite, the absence of any contemporaneous objection. Whether such a rule should exist is a matter more appropriately decided by the Louisiana Supreme Court than by this court.

Because I do not believe Breaux compels automatic reversal, I would decline to vacate the defendant's convictions on patent error review. Instead, I would address the assignments of error raised by the defendant on appeal. Based on these foregoing reasons, I respectfully dissent in part.

FOOTNOTES

1.   Article 493.2 was enacted in 1997, but it was not amended to conform to the 2018 constitutional amendment to La. Const, art. I, § 17(A), which requires that when the punishment is necessarily confinement at hard labor, the defendant must be tried by a jury composed of twelve, all of whom must concur to render a verdict. See La. Acts 2018, No. 722, § 1.

2.   Although possession of amphetamine (count II) is a relative felony, which requires the defendant be tried by a jury composed of six members, all of whom must concur to render a verdict, we also vacate the defendant's conviction and sentence for that offense. Pursuant to La. Code Crim. P. art. 493.2, when an absolute felony and relative felony are joined in one indictment, as was done here, the defendant's jury is required to be composed of twelve members, all of whom must concur to render a verdict. CF State v. Woods, 2008-718 (La. App. 5th Cir. 2/10/09), 4 So.3d 248, 252, writ denied sub nom. State ex rel. Woods v. State, 2009-0837 (La. 1/29/10), 25 So.3d 831 (finding that drug possession charges and simple burglary charges were properly joined and correctly tried by a jury composed of twelve jurors, although simple burglary was required to be tried by a jury composed of twelve jurors and drug possession was required to be tried by a jury compose of six jurors.) As the defendant's jury was not composed of twelve members, as required by law, we also vacate the possession of amphetamine conviction.

1.   A structural error is one that, “by its very nature, impacts the entire framework of the trial from beginning to end, without reference to any other trial consideration.” State v. Langley, 2006-1041 (La. 5/22/07), 958 So.2d 1160, 1168, cert. denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007). In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the United States Supreme Court distinguished between structural defects in a criminal trial and all other errors committed during the course of the proceedings. The Court held “structural defects in the constitution of the trial mechanism ․ defy analysis by ‘harmless-error’ standards ․ [because they] affect the framework within which the trial proceeds, rather than simply [interject] an error in the trial process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265; see also Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717, 125 L.Ed.2d 353 (1993) (“The existence of such [structural] defects ․ requires automatic reversal of the conviction because they infect the entire trial process.”). Structural defects occur in only “a very limited class of cases,” and include the total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of the defendant's race, deprivation of the right to self-representation at trial, the right to a public trial, and erroneous reasonable doubt instructions. Johnson v. United States, 520 U.S. 461, 468-69, 117S.Ct. 1544, 1549-50, 137 L.Ed.2d 718 (1997); Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999); United States v. Stevens, 223 F.3d 239, 244 (3rd Cir. 2000); see also State v. Ruiz, 2006-1755 (La. 4/11/07), 955 So.2d. 81.

2.   In State v. Johnson, 94-13 79 (La. 11/27/95), 664 So.2d 94, 100, our supreme court adopted the harmless error test of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Under that test, derived from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), “[t]he inquiry ․ is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Johnson, 664 So.2d at 100, quoting Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. The burden of proving harmless error rests squarely on the shoulders of the party benefitting from the error. Chapman, 386 U.S. at 24, 87 S.Ct. 824.

3.   Defendants must contemporaneously object to alleged trial errors to preserve the issues for appellate review. La. C.Cr.P. art. 841. Generally, only errors that are structural may be reviewed in the absence of contemporaneous objection. State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419.

FIELDS, J.

Miller, J. concurs. Edwards, J. dissents in part.