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State v. Johnston

Court of Appeals of Louisiana, Second Circuit

April 11, 2018

STATE OF LOUISIANA Appellee
v.
LANCE ANDREW JOHNSTON Appellant

          Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 67517 Honorable Cynthia T. Woodard, Judge

          LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville Counsel for Appellant

          JOHN F.K. BELTON District Attorney Counsel for Appellee

          TRACY W. HOUCK LAURIE LEE WHITTEN JAMES Assistant District Attorneys

          Before BROWN, COX, and STEPHENS, JJ.

          STEPHENS, J.

         This criminal appeal arises from the Third Judicial District Court, Parish of Lincoln, State of Louisiana. The defendant, Lance Andrew Johnston, was charged with one count of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 and one count of attempted simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 and 14:27. The state dismissed the first count. After a jury trial on the second count, Johnston was found guilty as charged and sentenced to six years at hard labor. Johnston filed motions for a new trial and for a post-verdict judgment of acquittal, which were denied. On appeal, Johnston argues he was improperly tried by a six-person jury rather than a twelve-person jury and challenges the sufficiency of the evidence. For the following reasons, Johnston's conviction and sentence are vacated and the case is remanded for a new trial.

         FACTS

         On August 11, 2015, the Lincoln Parish Sheriff's Office ("LPSO") received a call reporting an attempted break-in to a home. The complainant took a photo of the vehicle as the suspect drove away. LPSO issued a BOLO ("be on the lookout"); the vehicle was subsequently stopped and the driver, who was later identified as the defendant, Lance Andrew Johnston, was detained. Johnston was arrested for criminal trespass and driving with a suspended license. Later that same day, LPSO received a report that jewelry and approximately $600.00 in cash was stolen from another home in the area. A search warrant for Johnston's home was executed but failed to produce any of the stolen items.

         Johnston was charged by bill of information with simple burglary of an inhabited dwelling and attempted simple burglary of an inhabited dwelling. The state subsequently dismissed the first count but maintained the second count.

         Johnston's trial commenced. Six jurors were selected from the jury pool along with two alternate jurors. After deliberation, Johnston was found guilty as charged. Johnston filed motions for a new trial and for a post-verdict judgment of acquittal, which were denied. A presentence investigation ("PSI") report was ordered. Johnston was subsequently sentenced to serve six years at hard labor.[1] This appeal by Johnston ensued.

         DISCUSSION

         Johnston argues that as his sentence was necessarily punishable at hard labor, he was entitled to a trial by a twelve-person jury. Johnston was tried by a six-person jury, though, and contends that a verdict rendered by a jury composed of fewer than the constitutionally and statutorily mandated number of jurors is null. Accordingly, Johnston argues ...


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