State of Louisiana Versus Jacorey Davis and Malik Rodrigue

Opinion

STATE OF LOUISIANA NO. 23-K-159

VERSUS FIFTH CIRCUIT

JACOREY DAVIS AND MALIK RODRIGUE COURT OF APPEAL

STATE OF LOUISIANA

March 30, 2023

Linda Wiseman First Deputy Clerk

IN RE JACOREY DAVIS AND MALIK RODRIGUE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 22-209

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Cornelius E. Regan

WRIT GRANTED

Relators, Jacorey Davis and Malik Rodrigue, seek review of the trial court’s

denial of their motion for mistrial. For the following reasons, we grant this writ

application.

Jury selection in this matter commenced on March 27, 2023. On March 28,

2023, Mr. Davis filed a motion to abide by La. C.Cr.P. art. 788 during jury

selection, and a motion for mistrial. On the morning of March 29, 2023, while jury

selection was still in progress, the trial court granted the motion to abide by La.

C.Cr.P. art. 788. Mr. Rodrigue joined in the motion for mistrial at the hearing, but

the trial court denied the motion. A short time later, the State informed the trial

court that it joined in relators’ motion for mistrial. The trial court again denied the

motion.

In the motion for mistrial, relators argued that the trial court had not been

following the provisions of La. C.Cr.P. art. 788 during jury selection by failing to require that each prospective juror be tendered first to the state. La. C.Cr.P. art.

788 provides, in pertinent part:

A. After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror. This Article is subject to the provisions of Articles 795 and 796.

Comment (a) of La. C.Cr.P. art. 788 notes that this procedure for jury

selection has considerable value to a defendant. It states that because the state is

forced to choose first, the defendant may be saved the loss of a peremptory

challenge. See also State v. Plaisance, 00-1858 (La. App. 4 Cir. 3/6/02), 811

So.2d 1172, 1195, writ denied, 02-1395 (La. 11/27/02), 831 So.2d 270, cert.

denied, 538 U.S. 1038, 123 S.Ct. 2084, 155 L.Ed.2d 1071, in which the appellate

court found that the trial court erred in failing to tender all prospective jurors to the

state first, as provided by La. C.Cr.P. art. 788(A).

La. C.Cr.P. art. 775 provides that “[a] mistrial shall be ordered, and in a jury

case the jury dismissed, when the state and the defendant jointly move for a

mistrial.” Two of the three defendants in this matter moved for a mistrial and the

State subsequently joined in their motion. Accordingly, because there was a joint

motion, pursuant to La. C.Cr.P. art. 775, we find the trial court erred by denying

the motion for mistrial. Accordingly, we grant this writ application, grant relators’

motion for mistrial, and remand for further proceedings. Relators’ request for a

stay is denied as moot.

Gretna, Louisiana, this 30th day of March, 2023.

CER MEJ SJW

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ

FREDERICKA H. WICKER CHIEF DEPUTY CLERK

JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK

JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET

JUDGES 101 DERBIGNY STREET (70053)

DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX

www.fifthcircuit.org

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23-K-159

E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Thomas J. Butler (Respondent)

MAILED Price Quenin (Relator) Joseph L. Perez (Relator) Paul C. Fleming, Jr. (Relator) Attorney at Law Attorney at Law Attorney at Law 848 2nd Street 848 Second Street 848 Second Street Third Floor P. O. Box 468 Third Floor Gretna, LA 70053 Gretna, LA 70054 Gretna, LA 70053

Christen DeNicholas (Relator) Attorney at Law Jefferson Parish Public Defender 848 Second Street Third Floor Gretna, LA 70053

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