STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-522
STATE OF LOUISIANA
VERSUS
CHRISTOPHER O. JAMES
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. CR-2015-2085 HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESENTENCING.
Paula Corley Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 Telephone: (337) 991-9757 COUNSEL FOR: Defendant/Appellant - Christopher O. James
Herbert Todd Nesom District Attorney – 33rd Judicial District Court Steven Sumbler Assistant District Attorney – 33rd Judicial District Court P. O. Box 839 Oberlin, LA 70655 Telephone: (337) 639-2641 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
Christopher James was arrested after he removed a bag from his
pocket that contained five rocks of crack cocaine and threw it onto the front
driver’s seat. He did so as the arresting officer was conducting a pat-down
subsequent to a traffic stop. He was charged with possession of cocaine with intent
to distribute and obstruction of justice. A jury found him guilty of both charges.
The trial judge sentenced him to serve concurrent terms of ten years for the drug
charge and five years for obstruction of justice. Mr. James now appeals the
convictions. For the reasons that follow, we affirm the conviction and sentence for
obstruction of justice, but reverse the possession of cocaine with intent to distribute
conviction and enter a judgment of guilty on the lesser charge of possession of
cocaine. We remand the matter for resentencing on that conviction.
I.
ISSUES
We must decide:
1. whether there was sufficient evidence to support a guilty verdict of possession of cocaine with intent to distribute;
2. whether there is sufficient evidence to support a guilty verdict of obstruction of justice;
3. whether the trial court deprived Mr. James of his right to present a defense when it denied his motion for a continuance to conduct additional discovery;
4. whether the trial court erred in denying Mr. James’s motion for a mistrial;
5. whether prospective jurors were struck because of their race (Black), in violation of Batson v. Kentucky, 476 U.S. 79 (1986), resulting in an all-white jury; and 6. whether the obstruction of justice verdict form was defective.
II.
FACTS AND PROCEDURAL HISTORY
Mr. James was pulled over for driving without a valid driver’s license.
Before the traffic stop, Officer Brandon Johnson was alerted via a narcotics tip that
Mr. James was selling crack cocaine. Officer Johnson attested that he previously
cited Mr. James for operating a motor vehicle without a valid driver’s license.
Officer Johnson confirmed through the Louisiana traffic database that Mr. James
still did not have a valid license and a traffic stop followed. Officer Johnson
instructed Mr. James to get out of the car and to place his hands on the top of the
car.
During the subsequent pat-down, Mr. James removed contents from
his pocket and threw them through the car’s open window. The contents included
a small bag containing .77 grams of crack cocaine (five rocks). Mr. James’s
passenger, Kennon Richard, grabbed the bag and attempted to hide it between the
armrest and the passenger’s seat. Mr. James and Mr. Richard were both placed
under arrest. The bag containing the crack cocaine was in plain view and was
confiscated by Officer Johnson. Mr. James was charged by bill of information
with possession of cocaine with intent to distribute and obstruction of justice.
On the morning of trial, the trial court heard and denied Mr. James’s
oral motion to continue the trial. During voir dire, the State exercised peremptory
challenges to strike six minority persons from the jury, resulting in Mr. James
being tried by an all-white jury. The jury found Mr. James guilty on both charges.
2 III.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals
for errors patent on the face of the record. After reviewing the record, we find one
error patent.
We note that Mr. James was advised incorrectly at sentencing that he
had two years from that date to file an application for post-conviction relief.
However, La.Code Crim.P. art. 930.8 provides that a defendant has two years after
the conviction and sentence become final to seek post-conviction relief. Thus, the
trial court is directed to correctly inform Mr. James of the provisions of La.Code
Crim.P. art. 930.8 by sending appropriate written notice to him within ten days of
the rendition of the opinion and to file written proof in the record that he received
the notice. State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ
denied, 09-275 (La. 11/20/09), 25 So.3d 795.
IV.
LAW AND DISCUSSION
A. Whether there was sufficient evidence to support a guilty verdict of possession of cocaine with intent to distribute.
Mr. James first argues that there is insufficient evidence to support a
guilty verdict of possession of cocaine with the intent to distribute.1 He notes that:
(1) the cocaine weighed less than a gram; (2) the rocks were all in one bag; and (3)
he was arrested with cigarettes, a lighter, and only five dollars, all of which
1 The knowing or intentional distribution of a Schedule II controlled dangerous substance (CDS) is a felony offense. La.R.S. 40:967. Crack cocaine is a Schedule II CDS. La.R.S. 40:964, Schedule II, (A)(4). “Distribution” includes the physical delivery or administration of a substance. La.R.S. 40:961(14).
3 indicate his intention to use but not distribute cocaine. In doing so, Mr. James
admits that he possessed cocaine but that there is insufficient evidence to prove his
intent to distribute the cocaine.
The State contends that his intention to distribute is inferred from the
circumstances surrounding his arrest. The State posits that: (1) the cigarettes were
not hand rolled, which would ordinarily be used to smoke crack cocaine; (2) the
cocaine was packaged in a baggie, which indicated an intent to distribute because
crack users typically receive their crack unbound; and (3) there was no evidence
that Mr. James was a cocaine user.
The standard of review in a sufficiency of the evidence claim is
“whether, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found proof beyond a reasonable doubt of each of
the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.
7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007)
(citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville,
448 So.2d 676, 678 (La.1984)).
The Jackson standard of review is now legislatively embodied in
La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its
own appreciation of the evidence for that of the fact-finder.” State v. Pigford,
05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048
(La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)).
The appellate court’s function is not to assess the credibility of witnesses or to
reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.
It is the factfinder’s role to weigh the credibility of witnesses. State v.
Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring
4 the sufficiency evaluation standard of Jackson, “the appellate court should not
second-guess the credibility determination of the trier of fact,” but rather, it should
defer to the rational credibility and evidentiary determinations of the jury. Id. at
1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d
724, 726-27). Our supreme court has stated:
However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence . . . in the light most favorable to the prosecution.’” McDaniel v. Brown, 558 U.S. ___, ___, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.
The Louisiana Supreme Court has set a test for determining whether a
defendant possessed an illegal substance with the intent to distribute. State v.
House, 325 So.2d 222 (La.1975). We should consider whether: (1) Mr. James
ever distributed or attempted to distribute the substance; (2) the substance was in a
form typically associated with possession for distribution; (3) the amount created a
presumption of the intent to distribute; (4) expert or other testimony showed the
5 amount was inconsistent with personal use; and (5) any paraphernalia associated
with the intent to distribute was present. Id. The Court will address each factor in
turn.
First, there is no evidence to suggest that Mr. James ever distributed
or attempted to distribute the crack rocks. Mere possession of a substance is not
evidence of the intent to distribute “unless the quantity is so large that no other
inference is possible.” State v. Hearold, 603 So.2d 731, 735-36 (La.1992). The
crack here was found subsequent to a traffic stop and not during an instance that
implies Mr. James was attempting to distribute.
Second, the crack cocaine was not packaged in a manner consistent
with distribution. The five rocks were in one small plastic bag and not packaged
individually. Officer Johnson testified that crack cocaine distributors package
rocks “in a pill bottle in a plastic bag” so that the seller can take the bottle out of
the bag and place the rock in the purchaser’s hand. The five rocks Mr. James
possessed were packaged together in one bag, not in a pill bottle placed in a bag.
Even so, Officer Johnson considered the packaging consistent with distribution.
The discrepancy in Officer Johnson’s testimony does not establish that the rocks
were packaged in a manner consistent with distribution. Given the rocks were
neither individually packaged nor placed in a bottle in a plastic bag, this factor
weighs in favor of possession of crack cocaine but not intent to distribute.
Third, the amount (.77 grams) does not create a presumption of intent
to distribute. Jurisprudence reveals that possession of five rocks of cocaine
suggests personal use, not an intent to distribute. For example, in State v. Brooks,
00-1123 (La.App. 3 Cir. 1/31/01), 779 So.2d 1055, writs denied, 01-865, 01-896
(La. 2/1/02), 808 So.2d 332 and 333, the defendant was charged with possession of
6 cocaine with the intent to distribute after police found a medicine bottle containing
five rocks of cocaine in his pocket. A jury found him guilty of the lesser charge of
possession, and this court affirmed the conviction. In State v. Snavely, 99-1223
(La.App. 5 Cir. 4/12/00), 759 So.2d 950, writ denied, 00-1439 (La. 2/16/01), 785
So.2d 840, an officer testified that crack users generally purchase one to five rocks
at a time for personal use.
Here, Mr. James possessed five rocks of crack cocaine. This amount
is not sufficient to create a presumption of intent to distribute. Compare State v.
Davis, 05-543 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, writ denied, 06-587 (La.
10/13/06), 939 So.2d 372 (holding that there was sufficient evidence to uphold a
possession with intent to distribute conviction against a defendant who possessed
eleven grams of crack cocaine), with State v. Durgan, 05-1642 (La.App. 3 Cir.
5/31/06), 931 So.2d 1182 (reversing a conviction for possession of cocaine with
intent to distribute against a defendant who possessed .82 grams of crack cocaine).
Fourth, testimony did not establish that the amount was inconsistent
with possession for personal use. On this factor, Officer Johnson offered shifting
testimony. He stated that five rocks was “right in the middle” and that “it is more
than your normal crack addict would have, but it is not out of the realm of
possibility for a crack addict to smoke that much crack.” Instead of establishing
that five rocks are inconsistent with personal use, his testimony leads us to the
opposite inference. Five rocks are indicative of possession by a crack user, not a
distributor.
Fifth, no paraphernalia associated with distribution was present. He
was not arrested with scales, baggies, individually wrapped rocks, weapons, or a
large amount of money to suggest that he was distributing crack cocaine.
7 Accordingly, because the above factors weigh in favor of acquittal of
possession with intent to distribute, we vacate that conviction. We enter a guilty
verdict on the lesser charge of possession of crack cocaine and remand for
resentencing on that conviction.
B. Whether there is sufficient evidence to support a guilty verdict of obstruction of justice. Mr. James contends that obstruction of justice requires the State to
establish that he acted with specific intent to affect a criminal investigation. He
argues that specific intent is lacking because he simply took the crack cocaine out
of his pocket and placed it on the driver’s seat, in plain view of the officer, and
acknowledged that it was his. This action, he argues, did not affect the
investigation because he did attempt to tamper or destroy the crack cocaine.
The State argues that specific intent can be inferred because Mr.
James moved the crack cocaine from his pocket to the driver’s seat as he was being
patted-down and without permission from Officer Johnson to do so.
Obstruction of justice occurs when the offender tampers “with
evidence with the specific intent of distorting the results of any criminal
investigation or proceeding which may reasonably prove relevant to a criminal
investigation or proceeding.” La.R.S. 14:130.1(A)(1). “Tampering” includes “the
intentional alteration, movement, removal, or addition of any object or substance”
at the location of an incident subject to investigation. Id.; see State v. Blanche,
47,015 (La.App. 2 Cir. 4/11/12), 91 So.3d 1189 (holding that a defendant throwing
a PCP-laced cigarette onto the seat as he exited the vehicle was sufficient to
conclude that the defendant was attempting to disrupt a criminal investigation).
8 [O]bstruction of justice is a specific-intent crime. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Therefore, specific intent need not be proven by fact but can be inferred from the circumstances and the actions of the defendant.
State v. Vercher, 14-1211, p. 11 (La.App. 3 Cir. 5/6/15), 162 So.3d 740, 747, writ
denied, 15-1124 (La. 5/20/16), 191 So.3d 1065.
Here, as Officer Johnson conducted a pat-down, Mr. James grabbed
his bag of cocaine rocks and threw it into the car, where his passenger attempted to
hide it. He did not simply hand over the bag of cocaine to Officer Johnson. The
jury could have reasonably found that Mr. James was trying to hide evidence of his
drug possession and evade drug charges when he threw the bag into the car. The
presence of the bag on Mr. James’s person would have been clear evidence of his
possession of it. Viewing the evidence in the light more favorable to the State, we
conclude that a rational trier of fact could have concluded reasonably that Mr.
James acted with specific intent to distort the investigation. Accordingly, we
affirm the obstruction of justice conviction.
C. Whether the trial court deprived Mr. James of his right to present a defense when it denied his motion for a continuance.
On the day of trial, Mr. James moved orally to continue the trial so
that his counsel could conduct discovery into his history of drug addiction to rebut
the intent to distribute charge. He argues that after he changed counsel, his
eventual trial counsel only had a little over a month to prepare for trial.
The State contends that Mr. James did not file a written motion for a
continuance at least seven days prior to trial as required by La.Code Crim.P. art.
9 707. Further, unexpected circumstances did not exist for the trial court to permit
an oral motion for a continuance. It also asserts that the case did not present a
complicated factual basis or issues that required extensive discovery.
A trial court has great discretion whether to grant or deny a motion to
continue trial. An appellate court will not disturb the trial court’s decision absent a
clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982); State v.
Balfa, 485 So.2d 264 (La.App. 3 Cir. 1986).
Here, the record contains no indication that Mr. James’s counsel made
an effort to obtain medical records. Additionally, he has not identified any medical
records or testimony to support his contention that he was a long-time crack addict.
He told the trial judge he was involved in drug rehab in 2002, thirteen years prior
to this offense. Although he wanted the continuance to obtain medical records, he
testified that the only help he had sought “in the last year or two” was informal
drug counseling with his pastor. We conclude that the trial court did not abuse its
discretion by denying Mr. James’s motion to continue.
D. Whether the trial court erred in denying Mr. James’s motion for a mistrial.
Mr. James claims that the trial court erred by denying his motion for a
mistrial when the State asked a potential juror, a law enforcement officer, about his
prior interactions with the defendants. When asked whether he knew either of the
defendants, the prospective juror responded, “I am not sure. I think one of them.”
Mr. James argues that this response violated his presumption of innocence because
it suggested that he was a criminal. He argues that he was entitled to a mandatory
mistrial under La.Code Crim.P. art. 770 or a discretionary mistrial pursuant to
La.Code Crim.P. art. 775.
10 The State contends that the prosecutor’s question was not intended to
elicit inadmissible evidence and that the juror’s response did not prejudice Mr.
James because it did not reference other crimes committed by the defendants.
Further, a mistrial was not warranted under La.Code Crim.P. arts. 770, 771, or 775
because the response did not result in substantial prejudice.
The trial court’s decision to deny a motion for mistrial will not be
disturbed absent an abuse of discretion. State v. Juniors, 05-649 (La.App. 3 Cir.
12/30/05), 918 So.2d 1137, writ denied, 06-267 (La. 9/15/06), 936 So.2d 1257,
cert. denied, 549 U.S. 1226, 127 S.Ct. 1293 (2007) (citing State v. Sloan, 29,787,
(La.App. 2 Cir. 9/24/97), 701 So.2d 995, writ denied, 97-2601 (La. 2/6/98), 709
So.2d 731).
Under La.Code Crim.P. art. 770, “[u]pon motion of a defendant, a
mistrial shall be ordered when a remark or comment, made within the hearing of
the jury by the judge, district attorney, or a court official, during the trial or in
argument, refers directly or indirectly to . . . [a]nother crime committed or alleged
to have been committed by the defendant as to which evidence is not
admissible[.]” Additionally, under La.Code Crim.P. art. 775, “[a] mistrial shall be
ordered, and in a jury case the jury dismissed, when prejudicial conduct in or
outside the courtroom makes it impossible for the defendant to obtain a fair trial . .
. .”
A comment that only arguably points to another crime, but does not
unmistakably point to it, does not warrant a mandatory mistrial. State v. Edwards,
97-1797 (La. 7/2/99), 750 So.2d 893, cert. denied, 528 U.S. 1026, 120 S.Ct. 542
(1999). In Edwards, a detective testified he learned of the defendant’s address
“[t]hrough the probation officer.” Id. at 906. The supreme court found the State’s
11 line of questioning did not intend to elicit inadmissible evidence of the defendant’s
other crimes. Even if it did, however, the court found the reference did “not
unambiguously point to another crime committed by the defendant.” Id. at 907.
Thus, a mandatory mistrial was not warranted.
Here, Mr. James was entitled to neither a mandatory nor a
discretionary mistrial. Mr. James was not entitled to the mandatory mistrial
provisions of La.Code Crim.P. art. 770 because the officer did not testify at trial;
he was asked a question during voir dire. The State contends the question of
whether the officer had “worked any of these cases dealing with any of the
defendants” referred only to the current charges against the defendants. This is a
reasonable possibility and an important inquiry with probative value, as a police
officer who had been involved in the case being tried would not be an appropriate
juror. The question asked did not refer to an offense besides the one being tried.
Further, the trial court did not abuse its discretion in denying a
discretionary mistrial under La.Code Crim.P. art. 775. The trial judge was in the
best position to assess the impact of the statement. Mr. James alleges no specific
prejudice because of the potential juror’s remark, which was vague and not a clear
reference to another crime. Mr. James has not shown that the remark inflamed the
jury or contributed to the guilty verdict, particularly where the evidence was
sufficient to convict him of possession of cocaine and obstruction of justice.
Accordingly, we affirm the trial court’s decision to deny Mr. James’s motion for a
mistrial.
12 E. Whether prospective jurors were struck on the basis of their race (Black), in violation of Batson v. Kentucky, 476 U.S. 79 (1986), resulting in an all-white jury.
Mr. James contends that his equal protection guarantees outlined in
Batson v. Kentucky, 476 U.S. 79 (1986) were violated. Batson makes it
unconstitutional to use a peremptory challenge to exclude a prospective juror
because of race. He complains that no race-neutral reasons existed to exclude five
African-Americans (Emily Sapp, Zealon Solomon, Ammie Cole, Bridget Gold,
and Jerome Sumbler) from serving, resulting in an all-white jury.
The State argues that it provided reasonable and specific race-neutral
reasons to exclude each. Thus, Mr. James cannot establish that the State acted with
discriminatory intent. We will address each prospective juror in turn.
When a Batson challenge is asserted, the proponent bears the burden
of presenting a prima facie showing of purposeful discrimination in the selection
of the jury. The burden then shifts to the opponent to show a non-discriminatory
basis for its peremptory challenge. The trial court then determines whether the
proponent has carried his burden of proving purposeful discrimination. State v.
Nelson, 10-1724, 10-1726 (La. 3/13/12), 85 So.3d 21. Once the State provides
race-neutral reasons for its peremptory strikes, the issue of whether the strikes
constitute a prima facie pattern of discrimination becomes moot. Hernandez v.
New York, 500 U.S. 352, 111 S.Ct. 1859 (1991); State v. McCoy, 14-1449 (La.
10/19/16), ___ So.3d ___.
In State v. Tilley, 99-569, pp. 4-5 (La. 7/6/00), 767 So.2d 6, 12-13,
cert. denied, 532 U.S. 959, 121 S.Ct. 1488 (2001), the Louisiana Supreme Court
set out criteria for evaluating the State’s answer to whether the peremptory
challenge was race-neutral:
13 Although the state’s explanation must be based on more than an assumption or a hunch, State v. Collier, [553 So.2d 815 (La.1989)], to be facially valid, it need not be persuasive, or even plausible; thus unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race- neutral. State v. Hobley, [98-2460 (La. 12/15/99), 752 So.2d 771]; Purkett [v. Elem,] 514 U.S. [765] at 767, 115 S.Ct. [1769] at 1771.
Faced with a race-neutral explanation, the defendant then must prove to the trial court purposeful discrimination. Id. (Citing Batson, supra; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The proper inquiry in the final stage of the Batson analysis is whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present. Id. (Citing State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 290). Thus, the focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Id. The trial court should examine all of the available evidence in an effort to discern patterns of strikes and other statements or actions by the prosecutor during voir dire that support or reject a finding of discriminatory intent. Id.; State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939, 942-43, cert. denied, Tyler v. Louisiana, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999). Because the factual determination pertaining to intentional discrimination rests largely on credibility evaluations, the trial court’s findings are entitled to great deference by the reviewing court. Id.; State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.
1. Ammie Cole
Ammie Cole worked with Kennon Richard’s (the co-defendant)
defense attorney as a teacher and thought he was “great.” Additionally, Mr.
James’s attorney represented Ms. Cole’s cousin as a defendant in a civil case. The
14 State struck Ms. Cole based on her history of actually working with Mr. Richard’s
attorney.
Mr. James objected to her removal. She was the only African-
American left in the jury venire when she was struck. The trial court excused Ms.
Cole.
We find that the State offered a sufficient race-neutral reason for
striking Ms. Cole. If she thought Mr. Richard’s attorney was a great teacher, based
on her personal work experience with him, she may have presumptively found him
to be a great attorney. This could have influenced her reception, processing, and
interpretation of the evidence. Although no other African-American remained in
the jury venire after Ms. Cole was excluded, we conclude that the available
evidence shows she was not stricken because of race.
2. Bridget Gold
Bridget Gold told the trial court she knew Steven Sumbler, one of the
State’s attorneys, because they “grew up together” and “he was like family.” She
also knew Mr. James, who lived with his grandmother down the street from her,
and Mr. Richard, although “not personally.” Nevertheless, she believed she could
listen to the evidence and make a fair and impartial decision. Additionally, Ms.
Gold’s brother had been in the hospital for the two weeks prior to trial awaiting a
heart transplant, but she still felt she could perform her job as a juror.
Based on the record, it is unclear if Mr. James made a Batson
objection. When defense counsel noted Ms. Gold was African-American, the State
presented a race-neutral argument that she lived down the street from Mr. James,
and knew Mr. Richard. The trial judge commented, “I don’t know if that was a
15 Batson challenge or not. But the race-neutral, very sufficient race-neutral reason
will stand.”
The close relationship between her and Mr. Sumbler could easily
create an appearance of impropriety if she served on the jury. We conclude that
this negates the possibility of the State’s discriminatory intent.
3. Emily Sapp (Equilla Sapp)
Equilla Sapp, referred to by Mr. James as “Emily Sapp,” knew the State’s
counsel, Steven Sumbler, through their church. She was also his father’s cousin
and his mother’s best friend. She taught Mr. Sumbler as a substitute teacher. She
felt she could vote not guilty if he did not prove all elements beyond a reasonable
doubt. Ms. Sapp was involved in a church ministry with a mandatory meeting in
Mississippi that began on Wednesday of that week, just two days after her voir
dire.
The State exercised a challenge to exclude Ms. Sapp based on her
being a family friend of Mr. Sumbler. Counsel also noted Ms. Sapp would have to
miss her required church meeting to serve on the jury. The trial court noted “there
are plenty of race-neutral reasons that were given” and excused Ms. Sapp. Mr.
James objected, commenting “every African American juror that comes up is
getting peremptory, every last one of them. It is a pattern at this point.”
The State had no discriminatory intent in striking Ms. Sapp. She, like
Ms. Gold, was a very close family friend and also a member of Mr. Sumbler’s
family. Because of these relationships, we conclude that there were sufficient
race-neutral reasons for striking her from the jury.
16 4. Zealon Solomon
Zealon Solomon was an eighth grade math teacher at Oakdale Middle
School, a tennis coach at Oakdale High School, a small business owner, and a 2012
graduate of LSU Paul M. Hebert Law Center. He and Mr. Sumbler are cousins,
and he went to school with the co-defendant, Mr. Richard. Additionally, Mr.
Solomon’s students had midterm examinations the week of trial. He felt he could
balance school and the trial, but he thought his mind would be on his students and
their preparation to a certain extent rather than on the trial. Mr. Solomon taught
both children of the investigating officer, Brandon Johnson. Officer Johnson’s son
played tennis for Mr. Solomon.
Both defendants raised a Batson challenge to the State’s peremptory
exclusion of Mr. Solomon. As race-neutral reasons, the State argued Mr. Solomon
and Mr. Sumbler were related, his focus was on his student’s exams, and he had
experience in the legal field. The trial court denied the challenge for cause but
allowed a peremptory strike.
The familial relationship between Mr. Solomon and Mr. Sumbler
alone was a sufficient race-neutral reason to strike him from the jury. Although
Mr. James alleges a pattern of discriminatory intent, the trial court could have
found instead a pattern of striking family members and close relationships to
prevent the appearance of stacking the jury in favor of the State, a factor that
supports denying the Batson challenge. We conclude that there were sufficient
race-neutral reasons for striking Mr. Solomon.
17 5. Jerome Sumbler
Jerome Sumbler is Mr. Sumbler’s uncle, and he knew both
defendants. He stated that would not tend to vote guilty simply because his
nephew was the State’s attorney. Jerome Sumbler also played basketball and
football with the uncle of one of the defendants, and they were lifelong friends. He
understood his service as a juror could appear improper because of those
relationships. The trial court excused him for cause. None of the attorneys stated
an objection.
On appeal, Mr. James alleges that Batson also applies to challenges
for cause. He cites no authority for this premise. While Mr. James claims the
State showed a pattern of striking African-American jurors, the State more
accurately showed a pattern of striking jurors who may lean toward the defense or
whose service on the jury could appear to result in unfairness to either or both
defendants. Mr. Sumbler was related to the State’s counsel and was a lifelong
friend of one of the defendants’ uncle, both of which were adequate reasons to
strike him for cause.
For the reasons stated, we hold that the trial court ruled correctly that
the State provided sufficient race-neutral reasons to exercise a peremptory
challenge for each juror.
F. Whether the obstruction of justice verdict form was defective.
Last, Mr. James claims that the verdict form for the obstruction of
justice charge was defective. He argues that the verdict form should have included
18 additional responsive verdicts, in particular those prescribed by La.R.S.
14:130.1(B)(3).2
The State argues that any objection to the verdict form must be made
contemporaneously during trial. It notes that Mr. James did not request the
additional, responsive verdicts during trial. Thus, he failed to preserve this issue
for appeal.
Unless objected to contemporaneously, an irregularity or error in the
charge to the jury may not be asserted on appeal. La.Code Crim.P. art. 841; State
v. Belgard, 410 So.2d 720 (La.1982). For example, in State v. Newton, 42,743
(La.App. 2 Cir. 12/19/07), 973 So.2d 916, writ denied, 08-1147 (La. 1/16/09), 998
So.2d 90, the defendant alleged that the trial court erred in failing to list attempted
obstruction of justice as a proper responsive verdict to the charge of obstruction of
justice. The court discussed attempted obstruction of justice as a responsive
verdict with the parties but never ruled on the issue. The defendant did not object
to the charge presented to the jury or request an additional charge. The second
circuit held the defendant failed to preserve the issue for appeal.
Similarly, at trial, Mr. James did not suggest the verdict form he now
contends should have been submitted. Further, he did not object when the jury was
charged or when the verdict form was submitted to the jury. The trial court
reviewed the jury charge with all counsel. Based on Mr. James’s request, the trial
judge removed a reference to conviction of a prior offense and to discrediting
testimony because of a prior inconsistent statement. Mr. James made no objection
regarding the responsive verdicts, and the verdict sheet went to the jury without the
2 This statute states, “[w]hen the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.”
19 choices Mr. James now seeks on appeal. Accordingly, Mr. James failed to
preserve this issue for appeal, and we need not consider it.
V.
CONCLUSION
For the reasons stated, we affirm the conviction and sentence for
obstruction of justice, but reverse the possession of cocaine with intent to distribute
guilty verdict and enter a judgment of guilty on the lesser charge of possession of
cocaine. We remand the matter for resentencing on that charge. We also direct the
trial court to inform Mr. James of the provisions of La.Code Crim.P. art. 930.8 by
sending appropriate written notice to Mr. James within ten days of the rendition of
this opinion, and to file written proof into the record indicating that Mr. James
received the notice.
AFFIRMED IN PART; REVERSED IN PART AND
REMANDED FOR RESENTENCING.