State v. Bias

674 So. 2d 265, 1996 WL 341167
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1996
DocketCR95-541
StatusPublished
Cited by4 cases

This text of 674 So. 2d 265 (State v. Bias) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bias, 674 So. 2d 265, 1996 WL 341167 (La. Ct. App. 1996).

Opinion

674 So.2d 265 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Michael BIAS, Defendant-Appellant.

No. CR95-541.

Court of Appeal of Louisiana, Third Circuit.

January 31, 1996.
Rehearing Denied June 7, 1996.

*266 Robert Richard Bryant Jr., Paul Peter Reggie, Lake Charles, for State.

Michael Bias, pro se.

Before DOUCET, C.J., and KNOLL and DECUIR, JJ.

KNOLL, Judge.

In this criminal case, a six-person jury convicted defendant, Michael Bias, of the crime of simple robbery, a violation of La. R.S. 14:65. After this conviction, defendant, a second-felony offender, was adjudicated a habitual offender and sentenced to serve 12 years at hard labor. Defendant appeals his conviction and sentence, relying on 7 assignments of error. We affirm.

FACTS

The facts of this case center on a robbery which occurred on December 4, 1992, at Abe's Grocery Store in Lake Charles, Louisiana. On that date, Clifford Vanslyke, *267 cashed the check at a local bank, placed the money in nondescript bags, and returned to Abe's Grocery with the money in the trunk of his automobile. When Vanslyke was walking from his automobile to the store, two men attacked him in the parking lot, grabbed the bags of money, and fled. Attempts by the butcher and the security guard at Abe's Grocery to apprehend the robbers were unsuccessful. The Lake Charles Police Department was then called to investigate the robbery.

The police investigation revealed that three men were involved in the robbery: Ernest Mack, Michael Lemelle, and the defendant. The three men were arrested and charged with simple robbery. The money taken in the robbery was never recovered. Ernest Mack and the defendant were tried in the same proceeding. Mack's conviction was affirmed on appeal. The record does not show the disposition of the robbery charge against Lemelle.

JUROR BIAS

The defendant first contends that Francis Louviere, one of the jurors, should have been excluded because of potential bias. The defendant argues that Louviere had been an employee at Abe's Grocery and was a friend of the grocery owner.

From the outset, we note that the defendant's appreciation of the facts is incorrect. The record shows that after the trial began, Louviere advised the trial court that she recognized a person sitting in the courtroom. The person Louviere identified was Barbara Conner. Conner was shopping at Abe's Grocery at the time of the robbery, but she did not witness the crime.

In a transcribed in camera interview with the trial court, the record shows that Louviere and Conner were classmates in the third or fourth grade. The two were not close friends and had not maintained contact through the years. Conner was a former employee of Abe's Grocery. While Conner was employed at Abe's Grocery, she saw Louviere and occasionally they talked when she shopped. Conner had last seen Louviere six years before. At the close of the trial court's in camera interview, counsel for the defendant withdrew her objection to Louviere's continued presence on the jury.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.Code Crim.P. art. 841; State v. Ratcliff, 416 So.2d 528 (La.1982). The purpose of the contemporaneous objection rule is to allow the trial court the opportunity to rule on the objection and thereby prevent or cure an error. State v. Herrod, 412 So.2d 564 (La.1982). The record in the case sub judice indicates that counsel for defendant withdrew her objection to Louviere's presence on the jury and indicates that defense counsel was satisfied with the trial court's ruling. Thus, we find that the defendant's assignment of error has not been preserved for appellate review.

CHALLENGE FOR CAUSE

The defendant next contends that the trial court should have excused a male juror for cause. Although the defendant does not identify the juror in question, he argues that the juror indicated that he could not find the defendant free from guilt if the defendant chose not to testify in his own behalf.

The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors urged. La.Code Crim.P. art. 914.1(A). In the present case, the defendant failed to include voir dire examination as part of the appellate record. Moreover, defendant has sketched very few facts in his brief, regarding this assignment of error and has failed to cite legal authority to support his assignment of error. Since we have no transcript of this portion of the trial, we are unable to review defendant's assignment of error.

TESTIMONY OF RHONDA GARRETT

The defendant next contends that Rhonda Garrett was motivated by reward money and the threat of criminal prosecution when she testified that he was one of the robbers. Garrett testified that the defendant was near the crime scene at the approximate time of the robbery.

*268 We premise our treatment of this issue by pointing out that witness credibility forms the crux of defendant's assignment of error. In essence, the defendant contends that Rhonda Garrett's testimony was not worthy of belief.

It is well settled that a determination of the weight of evidence is a question of fact. The resolution of a matter where conflicting testimony exists requires a determination of the witness's credibility and is a matter of the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Dugar, 93-718 (La.App. 3 Cir. 10/5/94); 643 So.2d 870. A determination of the credibility of a witness rests solely with the trier of fact who may accept or reject it, in whole or in part. State v. Tassin, 472 So.2d 340 (La.App. 3 Cir.), writ denied, 477 So.2d 97 (La.1985). Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all evidence most favorable to the prosecution must be adopted on appellate review. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Only irrational decisions of the trier of fact to convict will be overturned on appellate review. State v. Mussall, 523 So.2d 1305 (La. 1988).

In the present case, we note that the record shows that all of the sources of potential bias that may have affected Rhonda Garrett's testimony were presented to the jury and were available in its assessment of her testimony. Garrett told the jury that she spoke with Johnny Abraham of Abe's Grocery. Abraham told her that the stolen money had not been found and that a reward would be forthcoming if the robbery suspects were apprehended. Garrett stated that she was reluctant to go to the police because she thought that this robbery was none of her business. She further said that she was not lying, and that she would not fabricate a story because the police pressed her to find out what she knew.

After carefully reviewing the evidence, we find that the question of Garrett's credibility was a fact question determinable by the jury. Moreover, after considering defendant's argument, we find that he failed to show that the jury determination of this issue adverse to him was irrational. Therefore, we find that this assignment of error lacks merit.

REFERENCE TO DEFENDANT'S CRIMINAL RECORD

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Bluebook (online)
674 So. 2d 265, 1996 WL 341167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bias-lactapp-1996.