author: WEIMER, Justice.

text:
    STATE of Louisiana v. Billy R. LEWIS.
    No. 2012-K-1021.
    Supreme Court of Louisiana.
    March 19, 2013.
    Rehearing Denied May 3, 2013.

      Christopher Albert Aberle, Esq., for Applicant.
    James D. Caldwell, Attorney General, Robert Chase Abendroth, Assistant Attorney General, Orleans Parish District Attorney, Leon A. Cannizzaro, Jr., District Attorney, Andrew Pickett, Assistant District Attorney, for Respondent.
   WEIMER, Justice.

I,We granted certiorari in this case to determine the appropriate remedy for a defendant when he is prohibited, in violation of La.C.Cr.P. art. 799.1, from using a peremptory challenge to back strike a provisionally selected juror. Agreeing with the court of appeal’s determination that the error is one which is subject to harmless error analysis, we nevertheless find the court of appeal misapplied the harmless error standard of review in this case. Because, after review, we cannot conclude with certainty that the guilty verdicts rendered in this ease were surely unattributable to the district court’s error in prohibiting the defendant from using a back strike to peremptorily challenge a provisionally selected juror, we reverse the decision of the court of appeal, vacate defendant’s convictions and sentences, and remand this matter to the district court for a new trial.

| ¡.FACTS AND PROCEDURAL BACKGROUND

On October 10, 2002, defendant, Billy R. Lewis, and a co-defendant, Ronald Anderson, were charged by grand jury indictment with two counts of first degree murder, in violation of La. R.S. 14:30. The charges stem from the July 24, 2002 shooting deaths of Travis Webb and his niece, Daveion Jones.

According to the facts developed at trial, two days prior to the shootings, Webb and defendant’s friend, Dominique Jones, were involved in a physical altercation after Webb confronted Ms. Jones about defendant coming into the neighborhood. On the evening of July 24, 2002, in an alleged act of retaliation, defendant and Ronald Anderson fired shots into Webb’s home, striking and killing Webb and Daveion and injuring another niece of Webb, Tierra Jones. Through a photo lineup, Tierra identified Anderson as one of the shooters. Before he died, Webb told his best friend, Ezekial Harris, and two investigating police officers that “Billy, Dominique’s friend” shot him and that he was able to identify his assailant because the door to the house was open.

Based on information gathered at the scene, police obtained an arrest warrant for defendant, who was ultimately apprehended on August 1, 2002. Ronald Anderson was also arrested and the two were jointly indicted for the murders of Webb and Daveion.

On May 20, 2009, Ronald Anderson pled guilty to two counts of manslaughter as a so-called best interest plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, (1970). Thereafter, on October 19, 2009, the state amended the bill of indictment to charge defendant Lewis with two counts of second degree murder, in violation of La. |rR.S. 14:30.1. Lewis entered not guilty pleas to the amended charges and the case proceeded to trial.

During voir dire, after both sides had exercised their peremptory challenges to the members of the first panel of prospective jurors, defense counsel asked the district court to clarify whether prospective juror Rickey Steven Wolfe had been selected as a juror or challenged. The court informed counsel that Wolfe had been selected as a juror, to which counsel responded, “okay.” Noting that the first panel had produced six jurors, the district court then asked if either the prosecution or defense wished to exercise any back strikes at that time. Defense counsel responded, “[wje’d reserve.” Voir dire continued. At the conclusion of the fourth venire panel, defense counsel attempted to exercise a back strike on Wolfe, but the district court denied his request, advising that it only permitted back strikes on a “per panel” basis and was not required to permit defendant to exercise a back strike against a juror from the first panel. Defense counsel objected to the ruling, noting that the jurors had not been sworn and that if the court had allowed the back strike, he would have exercised it on Wolfe. Wolfe was ultimately seated and served on the jury.

On March 11, 2010, following the conclusion of trial, the jury found defendant guilty as charged on both counts of second degree murder. Thereafter, on March 25, 2010, defendant filed a motion for mistrial alleging the unconstitutionality of the non-unanimous jury verdict provisions of La. Const, art. I, § 17 and La.C.Cr.P. art. 782(A). The motion for mistrial was denied the same date, and defendant was sentenced by the district court to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each murder conviction. Defendant appealed.

|4The court of appeal affirmed defendant’s convictions and sentences. State v. Lewis, 2010-1775 (La.App. 4 Cir. 4/4/12), 96 So.3d 1165. In doing so, the court first declined to review defendant’s contention that the non-unanimous jury verdict provisions of La. Const. Art. I, § 17 and La. C.Cr.P. art. 782(A) violate the equal protection clause of the Fourteenth Amendment, finding that defendant’s failure to file a pre-verdict motion challenging the constitutionality of these provisions constituted a procedural default. In a similar vein, citing State v. Bertrand, 2008-2215, p. 6 (La.3/17/09), 6 So.3d 738, 742, the court found defendant’s assertion that non-unanimous jury verdicts violate his right to a jury trial under the Sixth and Fourteenth Amendments unavailing.

Having disposed of these preliminary arguments, the court of appeal then turned its attention to defendant’s assertion that the district court erred in refusing to allow him to back strike provisionally-accepted juror Rickey Steven Wolfe at the close of the fourth and final venire panel. Relying on the clear language of La.C.Cr.P. art. 799.1, which provides that “prior to the full complement of jurors being seated and before being sworn in by the court, ... the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted,” the court of appeal found that the district court erred by refusing to allow the defendant to exercise his back strike against Wolfe. Nevertheless, because the defendant had an opportunity to strike Wolfe at the conclusion of the first voir dire panel, the court found that the error did not implicate defendant’s constitutional right to exercise peremptory challenges, merely his statutory right to back strike provisionally-accepted jurors. Citing State v. Tay lor, 93-2201 (La.2/28/96), 669 So.2d 864, the court found the erroneous denial of this statutory right to be subject to harmless error analysis. Under that analysis, the court of appeal reasoned, the | ^defendant was required to demonstrate that the district court’s erroneous refusal to allow him to back strike Wolfe contributed to the verdict against him.

In assessing whether the defendant had satisfied that burden, the court of appeal analyzed Wolfe’s responses to voir dire and found them to be either neutral or defense-favorable, as evidenced by his professed mistrust of dying declaration testimony and tepid appreciation of the New Orleans Police Department. The court compared his responses to those of other members of the first panel and concluded that other jurors expressed a satisfaction level with police equal to or lower than that of Wolfe, but none was challenged by defendant. Nearly all panel members expressed a similar opinion about dying declarations. In addition, the court examined the mathematics of the jury verdicts — the jury voted 10-2 to convict on the first count and 11-1 to convict on the second count. The court reasoned that even assuming another juror sitting in Wolfe’s place would have returned not guilty verdicts on both counts, the back striking of Wolfe still would have resulted in a legal verdict of guilty and a life sentence on count two. The court concluded:

The defendant has not demonstrated any specific prejudice that inured to him because of the trial court’s erroneous ruling; notably, Wolfe shared pertinent attributes with other potential jurors whom the defendant did not strike. Moreover, the defendant has failed to show that another juror would have voted to acquit him in Wolfe’s absence. Even giving the defendant the full benefit of the doubt concerning Wolfe, the trial would have still ended in a guilty verdict and life sentence as to one count of the indictment. While it is arguable that the verdict on the other count could have resulted in a nine to three verdict, the defendant has not demonstrated a reasonable probability that this would have occurred.

Lewis, 2010-1775 at 15; 96 So.3d at 1175.

Judge Bonin authored a lengthy dissent, emphasizing the long-standing rule that when a district court erroneously denies the defendant a challenge for cause and the defendant must use a peremptory challenge to remove that juror (and thereafter | ^exhausts his peremptory challenges), a substantial right of the defendant has been violated, prejudice is presumed, and reversal is required. State v. Cross, 1993-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686. The dissent argued the same presumption of prejudice should apply when a peremptory back strike is disallowed. As the dissent pointed out, the erroneous denial of a challenge for cause remains a reversible error even if the defendant is unable to show that he was forced to accept a juror he deemed unacceptable. Lewis, 2010-1775 at 3, 96 So.3d at 1177 (Bonin, J., dissenting), citing, State v. McIntyre, 365 So.2d 1348, 1351 (La.1978). Thus, the dissent reasoned, in circumstances in which there is only a possibility that an unacceptable juror has been seated, prejudice is presumed. The dissent explained the same presumption should apply when a peremptory back strike is erroneously denied because in this latter instance, an identified juror unacceptable to the defendant has actually been seated and has deliberated. Thus, the dissent posited, because the error in disallowing a peremptory back strike goes to the issue of how the jury is constituted, it should not be subject to harmless error analysis at all, but should be viewed as presumptively prejudicial to the defendant.

Recognizing, however, that controlling precedent from this court suggests that a district court’s violation of a defendant’s right to peremptorily back strike a juror is subject to harmless error review, Taylor, supra, the dissent proceeded to challenge the majority’s conclusion that the error in this case was in fact harmless beyond a reasonable doubt and that the jury’s guilty verdicts were surely unattributable to the error-the test for harmless error announced in Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). First, the dissent attacked the majority’s conclusion that the error in this case was harmless because the defendant cannot show that juror Wolfe could have survived a challenge for cause, characterizing as “ironic” a rule which would require 17establishing cause for the exercise of a peremptory challenge. Next, the dissent discounted the majority’s reliance on the mathematical breakdown of the two guilty verdicts, finding that such an approach “completely ignores the effect that any one person may have on others,” and pointing out that it is impossible to know “how a different juror, acceptable to the defendant, may have interacted with the other jurors, nor can we know how this objected-to juror interacted with them.” Lewis, 2010-1775 at 6-7, 96 So.Sd at 1179 (Bonin, J., dissenting). Finally, the dissent distinguished the present case from earlier decisions applying a harmless error analysis to the erroneous denial of a peremptory back strike, finding two significant differentiating factors: (1) the defendant here, unlike those in earlier cases, had no warning until the end of voir dire that the district court would not allow peremptory back strikes; and (2) the defendant identified the objected-to juror prior to the conclusion of voir dire (as opposed to waiting until an adverse verdict was rendered).

The defendant applied to this court for writs, arguing, consistent with Judge Bo-nin’s dissent, that the error in denying the peremptory back strike implicated his constitutional right to peremptory challenges and should be deemed presumptively prejudicial. In the alternative, defendant contends that the court of appeal misapplied the harmless error standard to affirm his convictions and sentences in the wake of the district court error. We granted writs, primarily to consider whether the harmless |8error analysis applied in Taylor, supra, remains the appropriate remedy when a defendant is prohibited from using a peremptory challenge to back strike a provisionally selected juror in violation of La.C.Cr.P. art. 799.1. State v. Lewis, 2012-1021 (La.12/14/12), 104 So.3d 425.

LAW AND ANALYSIS

As the court of appeal held, and the parties acknowledge, there is no question the district court erred in denying defendant permission to back strike provisionally-accepted juror Wolfe at the end of the fourth venire panel, before the court swore in the jury panel as a whole. Back striking, or the exercise of a peremptory challenge to strike a provisionally-accepted juror, is expressly authorized by La.C.Cr.P. art. 799.1, which provides:

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

Louisiana C.Cr.P. art. 799.1 was enacted in the year 2006 to codify the holding of earlier jurisprudence from this court. See Taylor, 93-2201 at 22, 669 So.2d at 376-77; State v. Watts, 579 So.2d 931 (La.1991) (“A juror temporarily accepted and sworn in accordance with LSA C.Cr.P. Art. 788 may nevertheless be challenged peremptorily prior to the swearing of the jury panel in accordance with LSA C.Cr.P. Art. 790. LSA C.Cr.P. Art. 795(b)(1).”). The article explicitly condones a juror | ^election strategy in which counsel may defer a final decision on accepting one or more jurors until counsel has viewed the entire panel of provisionally selected jurors, before they are sworn in by the court. In this case, in rebuffing defendant’s attempt to peremptorily back strike Wolfe (provisionally selected as a juror from the first voir dire panel) at the end of the fourth panel, but before the jury panel was sworn in as a whole, the district court violated the plain language of La.C.Cr.P. art. 799.1 and committed legal error.

The issue presented for our resolution in this case is not whether defendant’s right to back strike a provisionally selected juror was violated, because it clearly was, but the appropriate remedy for such a violation. Relying on the majority opinion in the court of appeal and this court’s decision in Taylor, the state claims the defendant must show actual prejudice resulting from the error in order to receive a new trial. The defendant, drawing from Judge Bonin’s dissent, contends he is entitled to an automatic reversal of his convictions and sentences without a showing of prejudice because the effect of the loss of his peremptory challenge cannot be ascertained, making it impossible to demonstrate prejudice.

The peremptory challenge occupies an important role in the jury selection process. By enabling each side to exclude those jurors it perceives as harboring subtle biases with regard to the case which were not elicited on voir dire or which do not establish legal cause for a challenge, peremptory challenges are a means of “ ‘eliminating] extremes of partiality on both sides,’ ... thereby ‘assuring the selection of a qualified and unbiased jury.’ ” Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While peremptory challenges are one means of assuring the selection of a qualified and unbiased jury, the U.S. Supreme Court has determined | inthat an erroneous ruling denying a peremptory challenge is not, as a matter of federal constitutional law, a structural error requiring automatic reversal of a defendant’s conviction. Rivera v. Illinois, 556 U.S. 148, 160-61, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Rather, state law determines the consequences when a peremptory challenge is erroneously denied. Id. at 161-62, 129 S.Ct. 1446. As the Court explained in Rivera, “[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern ... [but] a matter for the State to address under its own laws.” Id.

In Louisiana, the peremptory challenge is protected by and preserved in the constitution. La. Const. art. I, § 17 (“The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law”). While the exercise of a peremptory challenge is provided through legislation, La.C.Cr.P. arts. 795, 799, and 799.1, it is not merely a statutory right. Thus, this court has long recognized that when a defendant is forced to utilize a peremptory challenge to correct a district court’s error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution, is affected. State v. Monroe, 366 So.2d 1345, 1347 (La.1978). In such instances, prejudice is presumed. Id.; State v. Juniors, 2003-2425, p. 8 (La.6/29/05), 915 So.2d 291, 305. In this case, defendant argues the same result — automatic reversal— should obtain when a defendant is prohibited from using a peremptory challenge to back strike a provisionally selected juror.

This court has previously had occasion to address the remedy available to a defendant when a back strike is erroneously denied. In Taylor, we applied a harmless error analysis to conclude that, although the district court had erred in denying the defendant the right to exercise his remaining peremptory challenges immediately before the jury panel was sworn, the error was harmless. Taylor, 93-2201 at 26, 669 So.2d at 378.

Taylor presented this court with a unique set of facts. During the voir dire in Taylor, confusion arose over the manner in which peremptory challenges were to be exercised. Id., 93-2201 at 23, 669 So.2d at 376. After the first panel of prospective jurors was examined, the district court “ruled that it would not allow the pure ‘back strike’ system of peremptory challenges,” but would require both sides “to exercise their peremptory challenges at the conclusion of the examination of each 12 member panel.” Id. To cure the initial confusion, the district court allowed the defendant the opportunity to back strike the two remaining prospective jurors from the first panel, and the defendant exercised one peremptory challenge at that time. Id., 93-2201 at 23, 669 So.2d at 377. Thereafter, jury selection proceeded with the clear understanding that both sides were required to exercise their peremptory challenges on a per-panel basis. When jury selection concluded, but before the panel was sworn, the defendant renewed his objection to the back strike ruling, noting that he wished to exercise his remaining peremptory challenges; however, he did not identify any prospective juror he wished to back strike at that time. Id., 93-2201 at 24, 669 So.2d at 377. It was not until oral argument in this court that defendant identified the juror he would have peremptorily challenged. Id. While we found, on appeal, the district court ruling denying back strikes prior to the swearing of the entire jury panel erroneous, we nevertheless found the error susceptible to harmless error analysis, largely because the juror the defendant subsequently identified as the individual he would have challenged was a member of the last panel of prospective jurors and defendant had ample opportunity to challenge that juror, but elected not to do so. Id., 93-2201 at 25-26, 669 So.2d at 377-378. In other words, we found that, while the jurisprudential rule recognizing the right to exercise back strikes was violated, the constitutional right to peremptorily challenge a juror was not implicated under the particulariacts of the case.

Since our decision in Taylor, appellate courts have been consistent in applying its harmless error analysis to cases in which a defendant was denied the right to use back strikes, essentially reasoning that there is no constitutional right to backstrike, only a statutory one. See State v. Plaisance, 2000-1858, p. 31 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1194; State v. Crotwell, 2000-2551, p. 14 (La.App. 1 Cir. 11/9/01), 818 So.2d 34, 45; State v. Hailey, 2002-1738, p. 9 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, 569; State v. Stukes, 2008-1217, p. 19 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233, 1246-47.

However, Taylor, and the case on which it relied, Watts, were decided prior to the enactment of La.C.Cr.P. art. 799.1, through which the legislature has now given its express approval to the back strikr ing of provisionally-selected jurors at any time before the swearing of the entire jury panel. The question which presents itself | ishere is whether the harmless-error analysis of Taylor remains appropriate when a district court, in clear violation of La. C.Cr.P. art. 799.1, entertains peremptory challenges to prospective jurors on a per-panel basis only.

As explained previously, in Louisiana, the peremptory challenge is a matter of constitutional as well as statutory right. La. Const, art. I, § 17. The question we must resolve is whether the constitutional right to peremptory challenges is implicated when the statutory right, bestowed by La.C.Cr.P. art. 799.1, to back strike a provisionally accepted juror is denied. In this case, the court of appeal concluded “[t]he defendant’s state constitutional right to exercise peremptory challenges was not implicated, considering that the trial court offered him the opportunity to peremptorily strike juror Wolfe at the conclusion of voir dire of the first venire panel.” Lewis, 2010-1775 at 13, 96 So.3d at 1174. Thus, as in Taylor, the court of appeal found the district court’s refusal to allow the defendant to exercise back strikes did not prevent the defendant from peremptorily challenging any of the selected jurors during the jury selection process. We agree with the court of appeal’s analysis in this regard. Basically, what the defendant lost through the erroneous ruling of the district court was the opportunity to wait until the end of the jury selection process to use his peremptory challenges; a loss of tactical flexibility in the selection of the jury that is conferred by statute, not by the constitution. Given these circumstances, we find the harmless-error analysis employed in Taylor remains the appropriate standard for review of a district court ruling prohibiting a defendant from using a peremptory challenge to back strike a provisionally-selected juror in violation of La.C.Cr.P. art. 799.1.

114Our conclusion that the error in this case is subject to harmless error analysis does not end our inquiry, however. Defendant alternatively argues that, in affirming his convictions and sentences, the court of appeal misapplied the harmless error standard adopted in Taylor, essentially imposing upon a defendant an insurmountable burden.

In conducting its harmless error review in this case, the court of appeal ruled that it was defendant’s burden to “demonstrate that the trial court’s erroneous refusal to allow him to subsequently backstrike Wolfe contributed to the jury’s verdicts against him.” Lewis, 2010-1775 at 13, 96 So.3d at 1174. Because the defendant “failed to demonstrate that but for the trial court’s erroneous denial of his back-strike of juror Wolfe, there is a reasonable probability that the outcome of his trial could have been any different, and that the jury’s verdicts were unattributable to the error,” the court affirmed his convictions and sentences. Id., 2010-1775 at 16, 96 So.3d at 1175.

Defendant argues that under the reasoning adopted by the court of appeal, it is not sufficient that the record establish that he would have peremptorily challenged a specifically named juror; he must also affirmatively demonstrate the named juror was not impartial. Id., 2010-1775 at 14, 96 So.3d at 1175 (“Considering Wolfe’s response in voir dire, it does not appear that he warranted a defense challenge.”). However, defendant posits, if the juror he sought to remove was biased, then that juror would be removable for cause, rendering the issue regarding the peremptory challenge moot and the defendant without a remedy — an irony that did not escape the dissent. Id., 2010-1775 at 6, 96 So.3d at 1178-1179 (Bonin, J., dissenting) (“How ironic a ‘requirement’ that would require establishing ‘cause’ for a challenge in order to show that an error associated with a peremptory challenge is not harmless.”). In any event, |15adopting the dissent of Judge Bonin, defendant argues that given the essential nature of the peremptory challenge as one “exercised without a reason stated, without inquiry and without being subject to the court’s control” (Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)), in the absence of a Fourteenth Amendment violation, it is inappropriate for a court “to substitute its judgment about the peremptory challenge of a juror” for that of a party and attempt to second-guess a party’s decision to exercise the challenge. Lewis, 10-1775 at 6, 96 So.3d at 1179 (Bonin, J., dissenting). Moreover, and most significantly, defendant points out, the harmless error analysis adopted by the court of appeal in this case places the burden on him to show a reasonable probability of a different result; ie., “that another juror would have voted to acquit him in Wolfe’s absence” (Id., 2010-1775 at 15, 96 So.3d at 1175), an impossible burden in any case.

We agree with defendant that the court of appeal misapplied Taylor’s harmless error standard in affirming his convictions and sentences. When this court addressed the question of harmless error in Taylor we referenced State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 100, which adopts 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, 94-1379 at 14, 664 So.2d at 100, quoting Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. Moreover, under Chapman, it is clear that 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 (“Certainly error ... casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.”). Thus, in the present case, defendant did not, as the court of appeal held, have the impossible burden of showing a reasonable probability of an acquittal but for the denial of his peremptory challenge; rather, the state had the burden of showing that the jury’s verdicts were surely unattributable to the presence of juror Wolfe on the panel who, but for the district court’s violation of La. C.Cr.P. art. 799.1, would have been peremptorily challenged in favor of a different juror.

Our review of the record in this case convinces us that the state failed to meet its burden of proving the guilty verdicts in this trial were “surely unattributable” to the error of the district court in prohibiting defendant from using a peremptory challenge to back strike juror Wolfe. Several considerations prompt this conclusion. First, apart from the practical and legal impossibility of following juror Wolfe into the jury deliberations to determine his effect, if any, on the resulting verdicts, the verdicts in this case were less than unanimous-10-2 on count one and 11-1 on count two-suggesting that the evidence, and the jury’s belief that the state had proved defendant’s culpability beyond a reasonable doubt, were not overwhelming.

117Second, this case is distinguishable from Taylor (wherein we concluded the district court error in not allowing back strikes was harmless) in two important respects. First, in Taylor, the defendant had a full opportunity to peremptorily challenge the objectionable juror. Not only was the defendant aware early in the voir dire that the district court would not permit back strikes, but the juror defendant identified as the individual he would have peremptorily challenged was in the last panel and nothing prevented the defendant from challenging that juror at the time. That situation differs significantly from the present one, in which the defendant was led to believe that he would be able to exercise a back strike against juror Wolfe by the district court’s apparent acquiescence to his statement, at the close of the first venire panel, that “[w]e’d reserve.” Second, and most significantly, in Taylor, the defendant did not identify the juror he would have challenged until oral argument before this court. See Taylor, 93-2201 at 25, 669 So.2d at 377. Here, the objectionable juror was identified to the district court before jury selection was concluded, thereby eliminating any potential abuse of the jury selection process by the defendant. See Hailey, 02-1738 at 8, 863 So.2d at 569 (“[T]he effect of not requiring a defendant to specify at trial who he would have backstruck is to permit a defendant to gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have backstruck.”).

In the final analysis, given the particular facts and circumstances of this case, we cannot conclude with certainty that the jury’s guilty verdicts were surely unattributable to the error of the district court in denying defendant the right to use a peremptory challenge to back strike juror Wolfe and, thus, that the error in prohibiting the back strike was harmless beyond a reasonable doubt.

|1SDECREE

For the foregoing reasons, we reverse the judgment of the court of appeal, vacate the convictions and sentences and remand this matter to the district court for a new trial.

REVERSED, VACATED AND REMANDED.

Judge JEFFERSON D. HUGHES III, was assigned as Justice pro tempore, sitting for KIMBALL, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . Judge Jefferson D. Hughes III, was assigned as Justice pro tempore, sitting for Kimball, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . According to the minute entries, the cases were severed on May 11, 2005.

      . Acknowledging the work is fictional, the dissent nevertheless cited Twelve Angry Men (United Artists Metro-Goldwyn Mayer 1957), in which a single juror, through force of personality and perseverance, persuades his fellow jurors to change their votes from guilty to not guilty, as an example of the role a single juror can play in jury deliberations. Lewis, 2010-1775 at 7, 96 So.3d at 1179 n. 4 (Bonin, J., dissenting).

      . In his writ application to this court and in brief, defendant additionally asserted that La. Const, art. I, § 17, authorizing non-unanimous jury verdicts, violates the Equal Protection clause of the Fourteenth Amendment because the provision's enactment "was motivated by an express and overt desire to discriminate against blacks on account of race,” and the Sixth and Fourteenth Amendment rights to a trial by jury. We pretermit consideration of these constitutional challenges because we find the case can be resolved on non-constitutional grounds. See Sims v. Mulhearn Funeral Home, Inc., 2007-0054, p. 6 (La.5/22/07), 956 So.2d 583, 588. ("[C]ourts should refrain from reaching or deciding the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy.”).

      . 2006 La. Acts 71, § 1.

      . As explained in Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), “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.” Such defects occur in only a limited number 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.” State v. Langley, 2006-1041, p. 6 (La.5/22/07), 958 So.2d 1160, 1164, citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); United States v. Stevens, 223 F.3d 239, 244 (3rd Cir.2000).

      . The defendant had four remaining peremptory challenges.

      . It appears some have been slow to recognize the enactment of La.C.Cr.P. art. 799.1. The transcripts in both the instant case and in State v. Patterson, 2012-2042 (La.3/19/13) 112 So.3d 806, 2013 WL 1115440 (released simultaneously with this opinion) suggest that neither the district courts nor counsel were aware of the existence of this article.

      . The Court overruled Swain in part, for reasons not here applicable, in Batson, 476 U.S. at 100 n. 25, 106 S.Ct. 1712.

      . In this regard, La. C.E. art. 606(B) prohibits a party from inquiring into "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon [a particular juror’s] or another other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.”

      . In making this observation, we do not mean to suggest the error in disallowing a peremptory back strike can be reduced to a matter of simply determining whether the verdict was unanimous or split, effectively insulating a unanimous verdict from a finding of harmless error, because we recognize, as Judge Bonin points out in his dissent, that such an approach ignores the effect that any one person may have on others. Lewis, 2010-1775 at 6, 96 So.3d at 1179 (Bonin, J., dissenting). We simply point to the split verdicts in this case as one factor to consider in assessing whether the state satisfied its burden of proving the jury's verdicts were surely unattributable to the presence of juror Wolfe on the panel.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jeremy PATTERSON.
    No. 2012-K-2042.
    Supreme Court of Louisiana.
    March 19, 2013.
    Rehearing Denied May 3, 2013.

      James D. Caldwell, Attorney General, Orleans Parish District Attorney, Leon A. Cannizzaro, Jr., District Attorney, Andrew Pickett, Assistant District Attorney, for Applicant.
    Christopher Albert Aberle, Esq., for Respondent.
   WEIMER, Justice.

LWe granted certiorari in this case to consider whether, following a district court ruling prohibiting the defendant from exercising a peremptory challenge to back strike a provisionally selected juror in violation of La.C.Cr.P. art. 799.1, the court of appeal appropriately applied a harmless error analysis to conclude that the error in denying the back strike was not harmless. Finding the court of appeal correctly applied a harmless error analysis to the facts of this case, we affirm the decision below.

FACTS AND PROCEDURAL BACKGROUND

On November 6, 2008, defendant, Jeremy Patterson, and a co-defendant, Tyrone Reynolds, were charged by grand jury indictment with one count of second degree murder, in violation of La. R.S. 14:30.1. The charge stems from the July 20, 2008 shooting death of Kerry A. Emery.

13At his November 17, 2009 arraignment, defendant entered a plea of not guilty to the charge of second degree murder. A jury trial commenced on June 15, 2010.

During voir dire, at the close of examination of the first panel of prospective jurors, defense counsel indicated to the district court that he wished to exercise a peremptory challenge against juror number sixteen, Suzanne K. Dumez. He quickly changed his mind, informing the court that he did not wish to excuse Ms. Dumez “at this point ... [but] may excuse her later.” The court instructed counsel that he would not be allowed to back strike and that he would be required to excuse the prospective juror at that point, or not at all. Ms. Dumez was accepted as a juror over counsel’s timely objection to the court’s no back-strike ruling.

At the conclusion of the voir dire of the second panel, a similar discussion ensued between the court and defense counsel when counsel moved to strike juror number five from the first panel, Ryan McCall. Counsel explained that he had intended to peremptorily challenge Mr. McCall at the end of the first panel, but was having trouble with his seating chart and had gotten the names of the prospective jurors mixed up. The district court denied the request to back strike Mr. McCall, and counsel noted his objection. Later, during the course of trial, defense counsel reiterated his objection to the no back-strike ruling, moving for a mistrial based on the district court’s refusal to allow him to back strike juror McCall before the entire jury panel was sworn and when he had peremptory challenges remaining. The district court denied the motion.

Following the conclusion of testimony, the jury returned a verdict of guilty, which the district court concluded was not legal because “[i]n order to have a verdict, | oten out of twelve people must vote for a single verdict,” and “there is not ten out of twelve.” The jury retired for further deliberations and returned with a verdict of guilty as charged. The vote to convict was ten to two. The defendant filed a motion for new trial, raising, among other issues, the denial of his request to peremptorily challenge provisionally selected jurors via back strike. The new trial motion was denied, and on August 25, 2010, defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appealed.

In an unpublished decision, the court of appeal reversed defendant’s conviction, vacated his sentence, and remanded the matter to the district court for a new trial. State v. Patterson, 2011-0648 (La.App. 4 Cir. 8/24/12), 98 So.3d 439 (Table). In doing so, the court of appeal addressed the merits of only one of six assigned errors— the district court’s denial of defendant’s request to back strike a juror. Citing La.C.Cr.P. art. 799.1, the court of appeal found the district court’s refusal to allow defense counsel to back strike juror number five (Mr. McCall) was error. Nevertheless, relying on State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, and State v. Hailey, 2002-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, the court found the error subject to harmless error analysis.

In conducting that analysis and assessing “whether the guilty verdict actually rendered in this trial was surely unattributable to the error,” Patterson, 2011-0648 at 8, 98 So.3d 439, quoting State v. Snyder, 98-1078, p. 15 (La.4/14/99), 750 So.2d 832, 845, the court of appeal reasoned:

In the matter sub judice, Patterson named juror number five as the juror he would have backstruck. Patterson is not required to give a reason for peremptorily challenging that juror. Furthermore, the error of the district court in precluding Patterson from backstrik-ing coupled with a verdict that was much less than unanimous are circumstances that 1 indicate that the guilty verdict rendered in this case is not surely unattributable to the error. These facts distinguish this appeal from Hailey and Taylor, where the defendants in those cases did not specify whom they would have struck.

Patterson, 2011-0648 at 9, 98 So.3d 439. Noting the “less than unanimous verdict suggests that the evidence as viewed by the jury was not overwhelming,” the court of appeal concluded that the error of the district court in refusing to allow defense counsel to back strike juror number five was not harmless, requiring reversal of the conviction and sentence and remand for a new trial. Id., 2011-0648 at 10, 98 So.3d 439.

In a concurring opinion, Judge Landrieu echoed the reasoning of the majority with regard to the prohibition of back strikes, concluding that the error was not harmless because with a 10-2 verdict, “the replacement of one juror could have changed the outcome.” Id., 2011-0648 at 4, 98 So.3d 439 (Landrieu, J. concurring). The concurrence also highlighted defense counsels diligence in objecting to and preserving the error for review. Id.

Judge McKay authored a dissenting opinion, finding the defendant “failed to show that he was prejudiced by the trial court’s denial of his statutory right to backstrike.” Id., 2011-0648 at 1, 98 So.3d 439 (McKay, J. dissenting). While conceding the district court erred in prohibiting back strikes, the dissent found the error to be harmless “[cjonsidering the facts and circumstances of the instant case.” Id.

We granted the state’s application for writs, primarily to consider whether the harmless error analysis applied in Taylor remains the appropriate analysis when a defendant is prohibited from using a peremptory challenge to back strike a | .^provisionally selected juror, in violation of La.C.Cr.P. art. 799.1, and, if so, whether the harmless error analysis was properly applied to the facts and circumstances of this particular case. State v. Patterson, 2012-2042 (La.12/14/12), 104 So.3d 426.

LAW AND ANALYSIS

For the reasons assigned this day in State v. Lewis, 2012-1021 (La.3/19/13), 112 So.3d 796, 2013 WL 1115398, we agree with the court of appeal’s conclusion that the district court erred in denying defense counsel permission to back strike provisionally-selected juror McCall at the end of the second venire panel, before the court swore in the jury panel as a whole. The prohibition on back strikes was a clear violation of La. C.Cr.P. art. 799.1. We likewise agree with the court of appeal’s conclusion that the error in refusing to allow defense counsel to back strike juror McCall is one which is subject to harmless error analysis. Lewis, 2012-1021, slip op. at 13, 112 So.3d at 803-04.

The lone question which remains for our consideration is whether the court of appeal properly applied the harmless-error analysis to the facts of this case to conclude that the guilty verdict rendered was not surely unattributable to the district court’s error and, therefore, not harmless.

Before this court, the state argues that the court of appeal’s harmless error analysis, which it characterizes as “pithy” and “conclusory,” is faulty. Citing Taylor, Ifithe state argues the court of appeal did not hold defendant to his burden of identifying some specific prejudice that may have resulted from the district court’s erroneous ruling. The state argues the defendant had the opportunity to examine all prospective jurors, to challenge them for cause, and to peremptorily challenge them. It criticizes the defendant for failing to offer a reason why he desired to strike Mr. McCall and for failing to demonstrate, based on the voir dire transcript, that other potential jurors who might have replaced Mr. McCall on the jury might have voted not guilty.

Ultimately, the state’s pointed criticism of the court of appeal’s harmless error analysis does not withstand scrutiny. As we explain in Lewis:

When this court addressed the question of harmless error in Taylor, we referenced State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 100, which adopts 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, 1994-1379 at 14, 664 So.2d at 100, quoting Sullivan, 508 U.S. at 279 [113 S.Ct. 2078]. Moreover, under Chapman, it is clear that the burden of proving harmless error rests squarely on the shoulders of the party benefiting from the error. Chapman, 386 U.S. at 24 [87 S.Ct. 824] (“Certainly error ... casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.”).

Lewis, 2012-1021, slip op. at 15-16, 112 So.3d at 804-05. Thus, in the present case, defendant did not, as the state argues, have the burden of showing a reasonable probability of an acquittal but for the denial of his peremptory challenge; rather, the state had the burden of showing the jury’s verdict was surely unattributable to the presence of juror McCall on the panel who, but for the district court’s violation of La.C.Cr.P. art. 799.1, would have been peremptorily challenged in favor of a different juror.

As we point out in Lewis, the state’s burden in a case such as this is a difficult one, given jury dynamics and the possible influence even a single juror may have on the course of deliberations. Lewis, 2012-1021, slip op. at 16, 112 So.3d at 805. As the court of appeal correctly noted, that burden is even more difficult when, as here, there is a split 10-2 jury verdict, and the replacement of one juror could have changed the outcome.

Certainly, under some circumstances, the error in denying back strikes may be harmless. Such was the situation this court encountered in Taylor, where we found harmless error because the objectionable juror (who counsel did not identify until oral argument before this court) was a member of the fifth and final voir dire panel and counsel had the opportunity to challenge that juror before the swearing of the entire panel, but chose not to do so. Taylor, 1993-2201 at 25-26, 669 So.2d at 377-378. In this case, by contrast, counsel made it very clear that he wished to peremptorily challenge juror McCall and would have done so but for an error he made with the seating chart. Thus, unlike Taylor, there is no question that defense counsel would have struck Mr. McCall and the composition of the jury would have been different if not for the district court’s error in prohibiting back strikes.

The conviction in this case, as in Lewis, rests on witness credibility, as there is no physical evidence linking defendant to the crime. This fact, coupled with the less than unanimous jury verdict, makes its impossible to conclude, as the court of appeal correctly noted, that the verdict actually rendered in this case was surely unattributable to the error of the district court. The court of appeal correctly determined that the district court’s error in prohibiting back strikes was not harmless Rbeyond a reasonable doubt and that defendant’s conviction and sentence must be vacated and the matter remanded to the district court for a new trial.

DECREE

For the foregoing reasons, the judgment of the court of appeal is affirmed.

AFFIRMED.

Judge JEFFERSON D. HUGHES III, was assigned as Justice pro tempore, sitting for KIMBALL, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . Judge Jefferson D. Hughes III, was assigned as Justice pro tempore, sitting for Kimball, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . Reynolds also entered a plea of not guilty at his arraignment and, following a jury trial on October 1, 2009, was acquitted of the charge of second degree murder.

      . In addition, the author of the opinion found that defendant received ineffective assistance of counsel when his attorney "fail[ed] to object to the removal of juror number five when the removed jurors were released and in his performance at trial.” Patterson, 2011-0648 at 10, 98 So.3d 439. However, two judges on the appellate panel dissented from that portion of the opinion finding ineffective assistance of counsel. As a result, there is no majority determination that counsel rendered ineffective assistance.

      . This case was consolidated for oral argument with State v. Lewis, which is decided in a separate opinion. Lewis, 2012-1021 (La.3/19/13), 112 So.3d 796.

      . La.C.Cr.P. art. 799.1 provides:
      Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

      . We note, for completeness, that defense counsel also objected to the district court’s refusal to allow him to reserve a decision on whether to peremptorily challenge juror Du-mez (who was a member of the first voir dire panel) until later in the voir dire process. The district court's ruling prohibiting a back strike with respect to this juror was erroneous, but counsel was clearly given the opportunity to peremptorily challenge this juror and elected to retain her on th& panel with knowledge that he would not be permitted to use a back strike to remove the juror later.


text:
    STATE of Louisiana v. Mazen HAMDAN.
    No. 2012-KK-1986.
    Supreme Court of Louisiana.
    March 19, 2013.

      James D. Caldwell, Attorney General, Orleans Parish District Attorney, Leon A. Cannizzaro, Jr., District Attorney, David Stephen Pipes, Jr., Assistant District Attorney, for Applicant.
    J.C. Lawrence & Associates, LLC, Anthony James Ibert Esq., New Orleans, LA, for Respondent.
   WEIMER, Justice.

_JjWe granted certiorari in this case to consider the criteria by which the courts of this state are to evaluate a criminal defendant’s previous conviction in a foreign jurisdiction during a habitual offender adjudication under La. R.S. 15:529.1(A). When a predicate offense does not necessarily include conduct criminal under Louisiana law, the conviction cannot lead to an enhanced penalty. In determining whether the predicate offense satisfies this criteria, courts are not confined to an examination of the applicable laws and the charging instrument of the foreign jurisdiction. Rather, when, as in this matter, there is information from the foreign proceeding available in the record that clearly establishes that the crime for which the defendant was convicted in a foreign jurisdiction would be a felony if committed in this state, courts are required to consider all of the available information in the record in deciding whether the foreign “crime which, if committed in this state would be a felony.” See La. R.S. 15:529.1(A). Because the trial court unduly limited its review pin this matter to the applicable criminal laws and the charging instrument, we conclude that the trial court legally erred in quashing the state’s habitual offender bill. Therefore, we reverse the decision of the appellate court, vacate the trial court’s judgment granting defendant’s motion to quash, and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 14, 2010, Mazen Hamdan (defendant) was charged with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The bill of information states that defendant was previously convicted in Orleans Parish of possession of heroin and possession of methadone, which were used in the trial for the underlying weapon offense. A jury found defendant guilty as charged, and he was sentenced to serve 10 years -of imprisonment at hard labor.

On the day of the sentencing hearing, the state filed a habitual offender bill of information alleging that defendant’s sentence should be enhanced under La. R.S. 15:529.1(A)(1) due to his prior guilty plea in federal court to interstate transportation of stolen property, a violation of 18 U.S.C. § 2314. Defendant then filed a motion to quash the habitual offender bill in which he contended that the predicate offense alleged by the state had no felony equivalent in Louisiana. Defendant also alleged that the charging instrument in the federal prosecution did not indicate whether he actually possessed the stolen property or simply arranged for its transportation. The state opposed the motion to quash, contending that an equivalent offense exists under state law, that is, illegal possession of stolen things. See La. R.S. 14:69. The state observed that the factual basis.for the federal plea established that defendant knowingly and personally transported stolen construction equipment that he intended to sell for $13,000.

13At the hearing on the motion to quash, the state offered into evidence the indictment and criminal complaint related to defendant’s federal conviction and a supporting affidavit by a special agent for the Federal Bureau of Investigation (FBI). The state also introduced the “Factual Basis” statement, signed by defendant, defense counsel, and an Assistant United States Attorney, which had been filed in the federal proceeding.

The federal complaint contained an allegation that on or about February 2, 2007, defendant “did ... transport in interstate commerce, goods of a value of $5,000 or more, to-wit: a T180 Bobcat and trailer, knowing the same to have been stolen, converted, or taken by fraud, in violation of Title 18 United States Code, Section[ ] 2314.” In the attached supporting affidavit, the FBI special agent stated: a cooperating witness reported that defendant offered to sell stolen equipment, including two Bobcats and one trailer, for $13,000; a sale price of $8,000 was eventually negotiated; defendant agreed to transport the T180 Bobcat to Mississippi for an additional $1,000; and defendant arrived at a Mississippi rest stop as agreed.

The federal indictment provided:

On or about February 2, 2006, in the Eastern District of Louisiana, the defendant, Mazen Hamdan, did unlawfully transport and cause to be transported in interstate commerce from the State of Louisiana, to the State of Mississippi, goods taken by theft, to wit, a T180 Bobcat and trailer, serial number 527513812, of the value of $5,000 or more, knowing the same to have been taken by theft, in violation of Title 18, United States Code, Section 2314.

The “Factual Basis” statement indicates that the following would have been proven at trial. A cooperating witness reported to the FBI on January 30, 2007, that defendant offered to sell stolen equipment for $13,000. The equipment was described as a used T180 Bobcat, a used trailer, and a used 773 Bobcat with a Bush Hog. The cooperating witness met with defendant in New Orleans, Louisiana, and indicated |4that the equipment was located near the 3300 block of Liberty Street close to Louisiana Avenue. On January 31, 2007, the cooperating witness and a task force officer (officer) went to the Liberty Street location and observed a T180 Bobcat, serial number 527513812, which was later identified as stolen. During a telephone conversation, defendant agreed to meet at a gas station in Gretna, Louisiana, to view other equipment that was for sale. From there, the parties all traveled to Harvey, Louisiana, where additional equipment was viewed. Defendant informed his potential buyers that the T180 Bobcat had been stolen from a New Orleans construction site. During a telephone conversation on February 1, 2007, the officer and defendant negotiated a purchase price of $8,000 for the T180 Bobcat and the trailer, with defendant agreeing to transport the Bobcat to Mississippi and deliver it to the officer’s representative for an additional $1,000. As agreed, defendant arrived at a highway rest area in Mississippi with the stolen T180 Bobcat the next day where he met with the officer’s representative. Defendant then informed the officer by telephone that he would release the Bobcat to the officer’s representative after $9,000 was delivered to defendant’s brother, who would be driving a white van, at the Gret-na gas station where they had previously met. About an hour later, the officer met defendant’s brother as instructed and arrested him. The Bobcat was recovered and determined to have been reported stolen in New Orleans on January 17, 2007. The value of the Bobcat was stipulated to be more than $10,000, but less than $30,000.

At the motion hearing in this matter, defendant argued that the trial court should only consider the allegations in the federal charging instrument in determining whether there is an analogous criminal provision under state law. The state disagreed. However, if the analysis should be so confined, the state observed that the allegation in the charging instrument that defendant knowingly transported goods | ¡¡taken by theft suffices because the transportation was an act of dominion and control that amounts to constructive, if not actual, possession.

After the hearing, the trial court quashed the habitual offender bill, resulting in the state applying for review from the court of appeal. In denying the state’s writ application, the appellate court rejected the state’s contention that 18 U.S.C. § 2314, pertaining to the transportation in interstate commerce of goods valued at $5,000 or more with knowledge that the goods have been stolen, is analogous to La. R.S. 14:69, pertaining to illegal possession of stolen things. The court noted possession is not an element of 18 U.S.C. § 2314, which does not require that a person actually transport anything himself. See State v. Hamdan, No. 12-0746, p. 9 (La.App. 4 Cir. 8/10/12) (unpublished). The federal indictment contained an alternative allegation that defendant merely arranged for the transportation. Id. According to the court of appeal, a violation of the federal statute could occur in a manner that could constitute illegal possession of stolen things under state law or in a manner that would not violate the state law. See Id., 12-0746 at 9-10. Because 18 U.S.C. § 2314 does not contain an element of possession, the court of appeal found no error in the trial court’s ruling. See Id., 12-0746 at 12. However, the appellate court acknowledged that the factual basis statement to which defendant subscribed when pleading guilty in federal court indicated “[wjithout question ... the offense, to which the defendant admitted committing when he pled guilty, constituted both transportation of stolen property across state lines, a violation of 18 U.S.C. § 2314, and constituted the crime of illegal possession of stolen things, a violation of La. R.S. 14:69.” Id., 12-0746 at 11. Nonetheless, the appellate court found the fact that 18 U.S.C § 2314 does not require proof of possession to be dispositive of the issue presented in this case. See Id., 12-0746 at 12.

|r,A concurring judge opined that transportation under 18 U.S.C. § 2314 necessarily involves at least attempted constructive possession. See Hamdan, 12-0746 at 1 (Bonin, J., concurring), citing La. R.S. 14:27(D)(a)-(b); La. R.S. 14:2(A)(4) & (6). According to the concurrence, because an attempt to receive • stolen things under state law is a one-year misdemeanor, such a conviction could not be used to enhance punishment under La. R.S. 15:529.1(A). Hamdan, 12-0746 at 1 (Bonin, J., concurring).

The state applied to this court for discretionary review, contending the violation of 18 U.S.C. § 2314, as shown by the evidence in the record, would be prosecutable in Louisiana, if committed here, as a violation of La. R.S. 14:69 and, therefore, the trial court erred in quashing the habitual offender bill of information. The state observes that the factual basis for the guilty plea in federal court established that defendant knowingly and personally transported stolen construction equipment, ie., he had actual possession of the stolen property. According to the state, the fact that the federal provision contains an additional element of interstate commerce is irrelevant to the analysis, as is the fact that there may be other federal offenses that more closely correspond to La. R.S. 14:69. The state further argues that the allegations in the federal charging instrument can only be accomplished by possession (whether actual or constructive). This court granted the state’s application to consider the criteria by which the courts of this state are to evaluate a criminal defendant’s previous conviction from a foreign jurisdiction in a habitual offender adjudication under La. R.S. 15:529.1(A). See State v. Hamdan, 12-1986 (La.12/14/12), 104 So.3d 425. On appeal from the trial court’s ruling on a motion to quash, the trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2094, 99-2015, 99-2019 (La.7/6/00), 766 So.2d 501, 504.

DISCUSSION

Concerning sentences for second and subsequent offenses, La. R.S. 15:529.1(A), in pertinent part, provides:

Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows....

A proceeding by the state under La. R.S. 15:529.1(A) to have a defendant sentenced as a second or third offender is in the nature of a criminal prosecution, and the burden is on the state to prove the charges in the indictment. See State v. O’Day, 191 La. 380, 185 So. 290, 292 (1938). Thus, where the state alleges the defendant had been previously prosecuted and convicted of crimes committed in another jurisdiction, the state must allege and prove that those crimes, if committed in this state, would be felonies under Louisiana law. See Id. at 293. The habitual offender statute “requires Louisiana courts to determine the analogous state crime according to the nature of the act involved, not the penalty provided for the offense in the foreign jurisdiction.” State v. Carouthers, 618 So.2d 880, 882 (La.1993), citing State v. Berndt, 416 So.2d 56, 59 n. 4 (La.1982).

In this case, the predicate foreign offense was the interstate transportation of stolen property, a violation of 18 U.S.C. § 2314, which, in pertinent part, provides:

Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the |svalue of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud....

The elements of this federal offense include: “(1) the interstate or foreign transportation of; (2) goods, merchandise, wares, money, or securities valued at $5,000 or more; (8) with knowledge that such items ‘have been stolen, converted, or taken by fraud.’ ” U.S. v. McIntosh, 280 F.3d 479, 483 (5th Cir.2002), citing Dowling v. United States, 473 U.S. 207, 214, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). To establish a violation of 18 U.S.C. § 2314, it is not necessary to show that a defendant actually transported anything himself; causing interstate transportation is sufficient under 18 U.S.C.A. § 2314. McIntosh, 280 F.3d at 483, citing Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954), and Hubsch v. United States, 256 F.2d 820, 822 (5th Cir.1958).

The state likens the predicate federal offense to the state felony offense of illegal possession of stolen things, a violation of La. R.S. 14:69, which at the time of defendant’s commission of the federal offense, in pertinent part, provided:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
B. (1) Whoever commits the crime of illegal possession of stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

The issue of whether a conviction under 18 U.S.C. § 2314 can be used as a predicate felony under Louisiana’s habitual offender statute has not been specifically addressed by this court.

|aThe criteria by which the courts of this state evaluate a criminal defendant’s previous convictions from foreign jurisdictions for purpose of enhancing the defendant’s sentence was examined by this court in State v. Vaccaro, 200 La. 475, 8 So.2d 299 (1942). In Vaccaro, this court appeared to require a one-to-one correspondence between the elements of the federal and state laws being compared. Nonetheless, Vaccaro has never been cited for that proposition, but, instead, has been cited for its more general statement that a crime is punishable in Louisiana only if it is made so by statute. See, e.g., State v. Taylor, 463 So.2d 1274, 1276 (La.1985). Notably, Vaccaro involved convictions under federal laws governing the exporting and importing of narcotic drugs, the taxation of narcotic transactions, and the taxation of persons dealing in narcotics for which no comparable laws existed in Louisiana. See Vaccaro, 8 So.2d at 300-01.

Also pertinent to the evaluation of predicate federal offenses in a habitual offender proceeding are this court’s decisions in State v. Ralph, 336 So.2d 836 (La.1976); State v. Molinario, 383 So.2d 345 (La.1980), cert. denied, 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106 (1980); and State v. Michalowski, 94-1479 (La.9/23/94), 642 So.2d 1305. Notably, none of these eases mention Vaccaro.

In Ralph, this court considered whether a federal conviction for the transportation of a stolen motor vehicle in interstate commerce, a violation of 18 U.S.C. § 2312, could be used as a predicate felony under the state habitual offender statute. Because the offense constituted a felony under federal law, this court (without examining the offense itself) found that the requirements of La. R.S. 14:p.5:529.1in were satisfied. See Ralph, 336 So.2d at 840. Subsequently, in Bemdt, which involved a guilty plea in federal court to the crime of possession of stolen mail (a violation of 18 U.S.C. § 1708), this court found that it had erred in Ralph by examining the penalty provision of the crime rather than the crime itself. See Berndt, 416 So.2d at 59 n. 4; see also Carouthers, 618 So.2d at 882.

Later, in Molinano, this court recognized that there is “no state offense analogous to the federal offense [in Ralph ], viz., transportation of a stolen motor vehicle in interstate commerce.” Molinario, 383 So.2d at 352. A comparison of the applicable federal and state laws in Ralph, 18 U.S.C. § 2312, and La. R.S. 14:69 (possession of stolen goods) reveals the lack of a one-to-one correspondence between the elements of these crimes. However, nothing in the Ralph opinion indicates any evidence was offered from the federal proceeding to establish possession.

Michalowski involved a conviction in federal court under 18 U.S.C. § 922(g)(1), which proscribes the interstate transportation of firearms by a convicted felon. Michalowski, 642 So.2d 1305, citing State v. Michalowski, 93-2314 (La.App. 4 Cir. 5/13/94) (unpublished writ action). In Mi-chalowski, the trial court granted the defendant’s motion to quash holding that the federal offense was not | n analogous to the Louisiana crime of possession of a firearm by a convicted felon (a violation of La. R.S. 14:95.1), because the added element of interstate transportation in Section 922(g)(1) had no statutory counterpart in the Louisiana Criminal Code. See Michalowski, 93-2814 at 2. Finding the crimes to be analogous despite the interstate- commerce element contained in the federal law, the appellate court reversed the ruling of the trial court. Id. at. 3-4. Since the federal conviction in Michalowski simply required proof of shipping and transporting and did not require proof of possession as required for a conviction under La. R.S. 14:95.1, this court vacated the appellate court’s decision and reinstated the trial court’s judgment, which granted the defendant’s motion to quash. Michalowski, 642 So.2d 1305, citing Michalowski, 93-2314 at 1 (Landrieu, J., dissenting). Relatedly, in State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1290, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), this court interpreted Michalowski to mean that when the prior offense in a foreign jurisdiction for which a defendant was convicted does not necessarily include conduct criminal under Louisiana law, that conviction cannot lead to an enhanced penalty.

Thus, this body of jurisprudence establishes a general proposition that, to satisfy the requirements of La. R.S. 15:529.1, the state must show that defendant’s | ^foreign ci’ime (in this case “interstate transportation of stolen property” in violation of 18 U.S.C. § 2314) would be a felony if committed in Louisiana. See O’Day, 185 So. at 293, citing State v. Brown, 175 La. 357, 143 So. 288 (1932). According to Carouth-ers and Bemdt, the determination of this issue must be made based on an examination of the crime itself or the nature of the acts involved. See Carouthers, 618 So.2d at 882; Berndt, 416 So.2d at 59.

Arguing that 18 U.S.C. § 2314 does not require proof of possession of the stolen good, defendant urges the predicate federal crime does not necessarily include conduct criminal under La. R.S. 14:69. See Sanders, 648 So.2d at 1290; Michalowski, 642 So.2d 1305; see also State v. Sandoval, 09-0542 (La.App. 4 Cir. 2/8/10), 32 So.3d 914, 918 (“If the offense from the other state for which the defendant was convicted does not necessarily include conduct considered to be a felony under Louisiana law, that conviction cannot be used to enhance a subsequent felony under the habitual offender statute.”). We do not accept defendant’s argument. As it concerns control over stolen goods, the federal crime of transporting stolen goods has two routes to committing a violation. A person can either cause the goods to be transported or can transport the goods himself. See Pereira, 347 U.S. at 8, 74 S.Ct. 358. Under Louisiana law, if the defendant transports stolen goods himself, he has necessarily possessed them. Cf. State v. Pierce, 11-0095 (La.App. 4 Cir. 3/28/12), 89 So.3d 1, 8 (on reh’g), writ denied, 12-0860 (La.10/12/12), 99 So.3d 38 (holding that the defendant possessed a stolen automobile in which he was found sitting, not even driving).

Here, it was necessary for the trial court to look beyond the federal charging documents to ascertain which of the two routes defendant took in committing the crime of transporting stolen goods. Indeed, appellate courts in this state have | ^indicated that a court may look beyond the charging instrument and examine documents that establish the specific facts of a foreign offense to determine whether the crime “which, if committed in this state would be a felony[.]” See La. R.S. 15:529.1(A); State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 929, writs denied, 04-1640 (La.11/19/04), 888 So.2d 192, and 08-2370 (La.1/30/09), 999 So.2d 753 (finding an Ohio conviction justified an enhanced sentence, the court observed that the “documents [from the Dayton Municipal Court] appear to relate to the police investigation into a complaint of a felonious assault involving defendant [in Ohio].”); State v. Godfrey, 08-0828 (La.App. 3 Cir. 3/3/10), 32 So.3d 1020, 1023-24, writ denied, 10-0758 (La.10/29/10), 48 So.3d 1097 (commenting that, because the state introduced no evidence of the circumstances of the predicate offense, the court was “left with only the fact that the defendant was convicted of assaulting a Texas peace officer and causing him ‘bodily injury’ ”); State v. Mallett, 552 So.2d 28, 32 (La.App. 3 Cir.1989) (inferring the monetary value converted from the sentence imposed by the federal court). This court implicitly endorsed the practice of looking beyond the charging instrument in Carouthers and Bemdt by requiring an examination of the crime itself and the nature of the act involved. See Carouthers, 618 So.2d at 882; Berndt, 416 So.2d at 59 n. 4. Furthermore, there appears to be no impediment to such an endorsement in the language of La. R.S. 15:529.1(A).

In determining if La. R.S. 14:69 is analogous to 18 U.S.C. § 2314, the trial court in this case analyzed the language of the federal statute in the abstract without considering available information about the manner in which the statute was violated and the nature of the acts involved. To that extent, the ruling of the court below is somewhat anomalous, because the court below took a more confined view than the 114federal court accepting the guilty plea. It is axiomatic that analyzing whether conduct constitutes a crime requires evaluating the facts under the applicable law. As acknowledged by the appellate court, the documented materials submitted by the state in opposing defendant’s motion to quash, that is, the federal criminal complaint, the federal indictment, the supporting affidavit, and the “Factual Basis,” clearly establish that defendant intentionally possessed stolen items of substantial value, by personally transporting a Bobcat known by him to have been stolen from a New Orleans job site across the state line into Mississippi where he delivered it to an undercover task force officer, which act, if committed in Louisiana, would constitute a felony violation of La. R.S. 14:69. In light of this evidence, the lower courts erred in unduly restricting them examination under La. R.S. 15:529.1(A) to a review of the elements of 18 U.S.C. § 2314 and La. R.S. 14:69 and the federal charging instrument.

The state acknowledges that the added element of interstate transportation in 18 U.S.C. § 2314 has no statutory counterpart in the Louisiana Criminal Code. However, “[t]he sole reason for conditioning the federal statutefs] prohibitions on use of interstate commerce is to provide a constitutional basis for the exercise of federal power.” United States v. Roselli, 432 F.2d 879, 891 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 884, 27 L.Ed.2d 828 (1971). Concluding that the same criminal elements must exist under foreign and Louisiana laws would essentially prohibit any foreign conviction for a crime involving interstate commerce from being a predicate under La. R.S. 15:529.1. Such a conclusion would effectively eviscerate the habitual offender statute regarding federal offenses, a result incompatible with the express language of |15the statute which specifically references federal offenses. Notably, when given the opportunity in Michalowski to find that the interstate commerce element of the federal crime (interstate transportation of firearms by a convicted felon) prevented Louisiana’s crime of possession of a firearm by a convicted felon from serving as a predicate under La. R.S. 15:529.1(A), as found by the trial court, this court found no error in the trial court’s granting of the defendant’s motion to quash, but recited a different ground.

Admittedly, the elements of La. R.S. 14:69 more closely resemble the elements of the federal offense of the sale of stolen goods in violation of 18 U.S.C. § 2315, which, in pertinent part, provides:

Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, or pledges or accepts as security for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more, which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken....

Nonetheless, the test under La. R.S. 15:529.1 is whether the Louisiana law most analogous to the federal statute under which a prior conviction was obtained constitutes a felony. See State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123-24 (La.1982); State v. Brown, 452 So.2d 326, 329 (La.App. 4 Cir.1984). Here, La. R.S. 14:69 is the most analogous Louisiana criminal provision to 18 U.S.C. § 2314. The fact that La. R.S. 14:69 may be more analogous to 18 U.S.C. § 2315 than it is to 18 U.S.C. § 2314 is irrelevant to this court’s inquiry under La. R.S. 15:529.1(A), because defendant was convicted of violating 18 U.S.C. § 2314, not 18 U.S.C. § 2315.

| ^CONCLUSION

In summary, when, as in this matter, there is information from the foreign proceeding available in the record that clearly establishes that the crime for which the defendant was convicted in a foreign jurisdiction would be a felony if committed in this state, courts are required to consider all of the available information in the record in deciding whether the foreign “crime which, if committed in this state would be a felony.” See La. R.S. 15:529.1(A). Such an interpretation is consistent with Ca-rowthers’ pronouncement that La. R.S. 15:529.1(A) requires “Louisiana courts to determine the analogous state crime according to the nature of the act involved.” Emphasis added. See Carouthers, 618 So.2d at 882.

Based on our de novo review of the record, we conclude that the trial court legally erred in quashing the state’s habitual offender bill. See Smith, 766 So.2d at 504.

DECREE

For the foregoing reasons, the decision of the appellate court affirming the trial court’s judgment granting defendant’s motion to quash is reversed, and the trial court’s judgment is vacated. This matter is remanded to the trial court for further proceedings.

REVERSED; JUDGMENT VACATED; REMANDED.

Judge JEFFERSON D. HUGHES III, was assigned as Justice pro tempore, sitting for KIMBALL, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . Judge Jefferson D. Hughes III, was assigned as Justice pro tempore, sitting for Kimball, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . In Louisiana, a felony is any crime for which an offender may be sentenced to death or imprisonment at hard labor. La. R.S. 14:2(A)(4).

      . Subsequently, the monetary threshold in La. R.S 14:69(B)(1) of $500 was increased to $1,500 by 2010 La. Acts 585, § 1.

      . Currently, 18 U.S.C. § 2312 provides:
      Whoever transports in interstate or foreign commerce a motor vehicle, vessel, or aircraft, knowing the same to have been stolen, shall be fined under this title or imprisoned not more than 10 years, or both.

      . The apparent lack of evidence in Ralph relating to possession is contrasted with this matter. As indicated earlier, the “Factual Basis” from the proceeding on the federal offense was introduced into evidence in this matter by the state establishing that defendant actually possessed the stolen property.

      . In pertinent part, 18 U.S.C. § 922(g) currently provides:
      It shall be unlawful for any person—
      (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

      to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

      .Currently, La. R.S. 14:95.1(A) provides:
      A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instru-mentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon. [Footnote omitted.]

      . The "Factual Basis” reveals that Bobcat had been reported as stolen on January 17, 2007.

      . Succinctly stated, if defendant had been charged under Louisiana law for the acts to which he pled guilty in federal court in 2007, he would have been convicted of the felony-grade possession of stolen property.