FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
330, 429 HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE
Phillip Terrell, Jr. District Attorney - 9th Judicial
District Numa V. Metoyer, III Assistant District Attorney -
9th Judicial District Amani P. Augustine Assistant District
Attorney - 9th Judicial District COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
Kelly Bauman Louisiana Appellate Project COUNSEL FOR:
Defendant/Appellant - Edwin Albert Miller
composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J.
Gremillion, and Van H. Kyzar, Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Edwin Albert Miller was charged with one count of stalking,
second offense, a violation of La.R.S. 14:40.2(4). After a
twelve-person jury unanimously found him guilty of the
offense, he was sentenced to twenty years at hard labor
without the benefit of probation, parole, or suspension of
sentence, with credit for time served. On appeal, Defendant
asserts that his defense counsel's failure to object to
the impaneling of a twelve-person jury in the trial of a
six-person-jury offense constitutes a claim for ineffective
assistance of counsel, and thus requires a reversal of his
conviction. He additionally argues that the trial court erred
in denying his challenges for cause. Finally, Defendant
challenges his sentence as unconstitutionally excessive.
following reasons, we affirm Defendant's conviction and
(1) whether the erroneous trial by a jury of twelve instead
of a properly-constituted jury of six is reversible error;
(2) whether the trial court erred in denying Defendant's
challenges for cause; and
(3) whether the sentence imposed by the trial court was
unconstitutionally excessive, in violation of La.Const. art.
1, § 20.
AND PROCEDURAL HISTORY
2009, Defendant was arrested and pleaded guilty to stalking
M.S.,  a violation of La.R.S. 14:40.2. He was
initially ordered to pay a $1, 000 fine and serve a one-year
sentence in Rapides Parish jail. However, the sentence was
suspended, and Defendant was thereafter placed on supervised
probation for two years.
matter giving rise to the instant appeal occurred in 2016,
when Defendant was charged by Bill of Information with
stalking, second offense, a violation of La.R.S. 14:40.2(4),
alleging that he did willfully, maliciously, and repeatedly
follow and/or harass and threaten M.S. again with the intent
to place her in reasonable fear of serious bodily harm. He
entered a plea of not guilty to the offense.
trial was held thereafter. Before conducting voir
dire, the court noted that it was going "to select
a twelve-person jury for a criminal case." After a panel
of twelve jurors had been accepted and sworn, defense counsel
then objected to the composition of the jury by noting that
under La.Code Crim.P. art. 782, a twelve-person jury is only
appropriate when the punishment is necessarily confinement at
hard labor, whereas a six-person jury is appropriate when the
punishment may be confinement at hard labor instead. Because
stalking, second offense, is punishable "with or without
hard labor" under La.RS. 14:40.2(4), defense counsel
argued that Defendant's case ought to be heard by a
six-person jury. The trial court, however, denied the
defense's request for a six-person jury, and twelve
jurors were accepted and sworn to the jury.
voir dire, each side was granted twelve peremptory
challenges. Defense counsel raised several challenges for
cause with respect to prospective jurors, and they were
denied by the trial court. The case was then decided before a
panel of twelve jurors, which unanimously found Defendant
guilty of the offense charged.
analyzing the sentencing factors of La.Code Crim.P. art.
894.1, the trial court concluded from the evidence that
Defendant was a most egregious offender and thus sentenced
him to serve a maximum term of twenty years imprisonment,
without the benefit of parole, probation, or suspension of
sentence, with credit for time served. A Motion to Reconsider
Sentence was denied.
appeal, Defendant now argues that defense counsel's
failure to object to the twelve-person jury prior to the
jury's swearing constitutes ineffective assistance of
counsel such that Defendant's conviction should be
reversed. Further, he asserts that the trial court
erroneously denied his challenges for cause. Finally,
Defendant challenges his sentence as unconstitutionally
Assistance of Counsel
asserts a claim for ineffective assistance of counsel at
trial. He contends that his defense counsel's failure to
object to the impaneling of a twelve-person jury for a
six-person offense constituted deficient performance of such
a serious nature that prejudice must be presumed. As a
result, Defendant argues that his conviction should be
outset, the issue of ineffective assistance of counsel is
more appropriately addressed in an application for
post-conviction relief filed before the trial court, where a
full evidentiary hearing can be conducted. State ex rel.
A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012.
However, where the record discloses sufficient evidence to
rule on the merits of an ineffective assistance claim, an
appellate court may consider the issues raised on appeal in
the interests of judicial economy. Id.
the record in this case sufficient,  we shall assess
Defendant's claim of ineffective assistance of counsel
under the two-part test established by Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Under
the Strickland analysis, Defendant must first
demonstrate that his trial counsel's performance was
deficient and that he was prejudiced by the deficiency.
Counsel's performance is ineffective when it can be shown
that he made errors so serious that counsel was not
functioning as the "counsel" guaranteed to the
defendant by the Sixth Amendment. Strickland,
supra, 466 U.S. at 686, 104 S.Ct. at 2064.
Counsel's deficient performance will have prejudiced the
defendant if he shows that the errors were so serious as to
deprive him of a fair trial. To carry his burden, the
defendant "must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the results of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, supra, 466 U.S. at 693, 104
S.Ct. at 2068. The defendant must make both showings to prove
that counsel was so ineffective as to require reversal.
State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.
This Court has recognized that if an alleged error falls
"within the ambit of trial strategy" it does not
"establish ineffective assistance of counsel."
State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.
1986). Moreover, as "opinions may differ on the
advisability of a tactic, hindsight is not the proper
perspective for judging the competence of counsel's trial
decisions. Neither may an attorney's level of
representation be determined by whether a particular strategy
is successful." State v. Brooks, 505 So.2d 714,
State v. Schexnaider, 03-144, p. 18 (La.App. 3 Cir.
6/4/03), 852 So.2d 450, 462 (quoting State v.
Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838
So.2d 34, 40).
cites as deficient performance his trial counsel's
failure to object to a twelve-person jury where the charge of
stalking, second offense imposes a permissive, rather than
mandatory, punishment of confinement at hard labor. Louisiana
Code of Criminal Procedure Article 782(A) states that
"[c]ases 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."
La.Code Crim.P. art. 782(A).  In contrast, "[c]ases 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."
Id. (emphasis added). The crime of stalking, second
offense is punishable "with or without hard
labor[.]" La.R.S. 14:40.2(B)(4). Notwithstanding any
deference accorded to trial counsel's strategy, we submit
that the case should have been tried before a jury of six,
rather than twelve, veniremen.
there is no doubt that an error occurred with respect to the
size of the selected jury in this case, our supreme court has
held that "the error in trying a six-person jury offense
in a 12-person jury forum no longer constitutes a
non-waivable structural defect in the proceedings, but
'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.'"
State v. Brown, 11-1044, p. 3 (La. 3/13/12), 85
So.3d 52, 53 (quoting State v. Jones, 05-226, p. 3
(La. 2/22/06), 922 So.2d 508, 511).
light of the unanimous verdict reached by the twelve-juror
panel, we cannot say that Defendant has been prejudiced in
his case. But for counsel's failure to object to the
composition of the jury, any six of the twelve jurors in this
case would nevertheless have rendered a guilty verdict
because all twelve jurors found Defendant guilty. In fact,
Defendant received six additional factfinders than
constitutionally mandated, and was thus afforded greater
protection than required by law. Therefore, because the
result of the proceeding would not have been any different
had defense counsel objected prior to the acceptance of the
jury, we find that the error of impaneling a twelve-person
jury in the trial of a six-person offense was harmless.
Accordingly, we find that Defendant was not actually
prejudiced due to the errors of both defense counsel and the
argues that the trial court erred in denying his challenges
for cause regarding juror, Ms. Humphries; second alternate
juror, Ms. Trotter; and three potential jurors, Ms. Jordan,
Ms. Ryder, and Ms. Mier. As a result, Defendant alleges that
the erroneous denials caused him to exhaust all of his
peremptory challenges. 
grounds for which a juror may be challenged for cause are set
forth in La.Code Crim.P. art. 797. The defense may challenge
a juror for cause if "[t]he juror is not impartial,
whatever the cause of his partiality." La.Code Crim.P.
art. 797(2). A juror may additionally be challenged for cause
on the ground that "[t]he relationship, whether by
blood, marriage, employment, friendship, or enmity between
the juror and the defendant, the person injured by the
offense, the district attorney, or defense counsel, is such
that it is reasonable to conclude that it would influence the
juror in arriving at a verdict[.]" La.Code Crim.P. art.
797(3). The defense may also challenge a juror for cause on
the basis that he or she "will not accept the law as
given to him by the court[.]" La.Code Crim.P. art.
Louisiana Supreme Court has set forth the following standard
for reviewing a trial court's denial of challenges for
A trial court is vested with broad discretion in ruling on
challenges for cause, and its rulings will be reversed only
when a review of the voir dire record as a whole reveals an
abuse of discretion. Prejudice is presumed when a challenge
for cause is denied erroneously by a trial court and the
defendant ultimately exhausts his peremptory challenges. An
erroneous ruling depriving an accused of a peremptory
challenge is a substantial violation of his constitutional
and statutory rights and constitutes reversible error.
"A challenge for cause should be granted, even when a
prospective juror declares his ability to remain impartial,
if the juror's responses as a whole reveal facts from
which bias, prejudice, or inability to render judgment
according to law may be reasonably implied." However, a
trial court does not abuse its discretion when it refuses to
excuse a prospective juror on the ground he is not impartial
where, after further inquiry or instruction, the potential
juror has demonstrated a willingness and ability to decide
the case impartially according to law and evidence.
State v. Scott, 04-1312, pp. 16-17 (La. 1/19/06),
921 So.2d 904, 921 (citations omitted), overruled on
other grounds by State v. Dunn, 07-878 (La. 1/25/08),
974 So.2d 658. Moreover, this court has stated
When the defendant exposes the partiality of a juror, the
juror may not be automatically excluded for cause. The state
or the trial court may rehabilitate the juror by asking
questions and obtaining answers demonstrating the juror's
ability to decide the case impartially pursuant to law and
evidence. Ultimately, the trial court has the power to
determine whether or not a juror may be excused for cause.
State v. Noel, 15-617 (La.App. 3 Cir. 12/9/15), 181
So.3d 223, rev'd on other grounds,
16-43 (La. 10/18/17), 236 So.3d 523.
we shall review the challenges for cause denied by the trial
court to determine whether the trial court abused its
the parties considered Ms. Humphries, a nursing student, the
State accepted her. The defense responded with a challenge
for cause because "[s]he's got tests, she's
pregnant, she doesn't want to be here." The trial
court then acknowledged that while Ms. Humphries
affirmatively answered that her jury service would affect her
life and her future, she would not miss any tests because of
the trial, and thus the challenge for cause was denied. The
trial court then held, "[s]he did answer affirmatively
as far as affecting her life and future. However, I do think
that she was rehabilitated."
the defense failed to object to the trial court's denial
of its challenge for cause regarding Ms. Humphries. Instead,
defense counsel expressly replied, "Accept[, ]" and
Ms. Humphries was then seated as juror number seven.
Additionally, our review of the record reveals that while
Defendant had six peremptory challenges remaining at the ...