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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 13th day of March, 2012, are as follows: PER CURIAM: 2011-K -1044 STATE OF LOUISIANA v. AUBREY BROWN (Parish of Tangipahoa) (Simple Burglary and Simple Burglary of a Religious Building) Accordingly, the decision the court of appeal is reversed and this case is remanded for consideration of the assignments of error pretermitted on original appeal. REVERSED; CASE REMANDED NEWS RELEASE #014

03/13/12

SUPREME COURT OF LOUISIANA No. 11-K-1044 STATE of LOUISIANA V. AUBREY BROWN On Writ of Certiorari to the First Circuit Court of Appeal PER CURIAM: The state charged defendant/respondent by bill of information with one count of simple burglary of a religious building, La.R.S. 14:62.6, and one count of simple burglary in violation of La.R.S. 14:62. The two crimes were apparently unrelated and the state ultimately severed the second count before bringing respondent to trial on March 16, 2010. A jury of 12 persons convicted respondent as charged of simple burglary of a religious building by a non-unanimous, 10-2 vote. The trial court sentenced respondent to 12 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, the First Circuit conducted an error patent review of the record and noted respondent's conviction stemmed from a proceeding in which a six-person jury offense had been mistakenly tried in a 12-person jury forum. Accordingly, the court of appeal pretermitted consideration of respondent's two assignments of error, reversed his conviction and sentence, and remanded the case to the district court for further proceedings. State v. Brown, 10-2107 (La. App. 1 Cir. 5/6/11), 66 So.3d 81 (unpub'd) (Kuhn, J., dissenting). We granted the state's writ application to

consider the decision below. State v. Brown, 11-1044 (La. 11/14/11). We now reverse the court of appeal's judgment, after finding that respondent acquiesced in

the error by actively participating in the selection of a 12-person jury without objection at any stage of the proceedings and thereby waived any relief on appeal on grounds that the panel selected was composed of a greater number of jurors than required by law. There is no doubt that an error with respect to the size of the selected jury occurred in the present case. Because it is punished by a maximum sentence of 12 years imprisonment with or without hard labor, at least two years of which are without benefit of probation, parole, or suspension of sentence, simple burglary of a religious building is a relative felony ordinarily tried before a jury of six persons, all of whom must concur to render a verdict. La. Const. art. I,

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