State v. Blank

745 So. 2d 1210, 99 La.App. 1 Cir. 0482, 1999 La. App. LEXIS 3141, 1999 WL 1018084
CourtLouisiana Court of Appeal
DecidedNovember 5, 1999
DocketNo. 99 KA 0482
StatusPublished
Cited by2 cases

This text of 745 So. 2d 1210 (State v. Blank) 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. Blank, 745 So. 2d 1210, 99 La.App. 1 Cir. 0482, 1999 La. App. LEXIS 3141, 1999 WL 1018084 (La. Ct. App. 1999).

Opinion

J^PETTIGREW, J.

Defendant, Brad Blank, was charged by bill of information with possession with intent to distribute methamphetamine greater than 200 grams but less than 400 grams (Count 1), a violation of La. R.S. 40:967 A(l) and La. R.S. 14:24, and possession of methamphetamine greater than 200 grams but less than 400 grams (Count 2), a violation of La. R.S. 40:967 F(2)(b) and La. R.S. 14:24. He pled not guilty to both counts. Following a jury trial, the defendant was found guilty as charged on both counts.1 The State filed an habitual offender bill of information charging defendant as a second felony offender. A hear[1212]*1212ing on the habitual offender bill was held, and, after being advised of his rights, defendant stipulated that he was a second felony habitual offender.2 Subsequently, the trial court sentenced defendant on Count 2 to serve 30 years at hard labor, without benefit of parole, probation or suspension of sentence, and to pay a fine of $175,000.00. In lieu of payment of the fine, the trial court ordered that defendant serve five years concurrent with his sentence. At the sentencing hearing, the trial court also stated that it was not sentencing defendant for his conviction on Count 1 because a sentence on both counts would constitute double jeopardy.

As the defendant was not sentenced on Count 1, that conviction would normally not be appealable. La. Code Grim. P. art. 912; State v. London, 316 So.2d 743 (La.1975). However, because defendant’s conviction on Count' 1 could form the basis of an habitual offender bill of information and sentence, we will exercise our supervisory jurisdiction and address defendant’s convictions on both counts in this appeal.3

| .FACTS

In January of 1998, Louisiana State Police conducted a sting operation involving the purchase of narcotics. A man who had previously been arrested became a confidential informant (Cl) and agreed to cooperate with law enforcement authorities. The Cl contacted Christopher McDuffie and arranged for McDuffie to purchase crystal methamphetamine. McDuffie met with the Cl in a local Baton Rouge hotel and gave him $8,000.00 in cash to obtain the illegal drugs. This transaction was secretly videotaped by troopers with the Louisiana State Police, who simultaneously viewed the transaction on audio and visual monitoring equipment. The Cl then made a telephone call to his source in Houston and arranged to purchase the crystal methamphetamine. The Louisiana State Police contacted Texas authorities and arranged for a monitored purchase in Houston by the Cl. After this Texas transaction, over 200 grams of methamphetamine were delivered to the Louisiana authorities. The Cl arranged for the delivery of the drugs to McDuffie, and the Louisiana State Police again provided for the monitoring and videotaping of the transaction in a local hotel room. McDuffie and defendant arrived at the hotel room and stated that they were there to pick up the methamphetamine. After the men weighed and packaged the drugs, a police swat team arrested McDuffie and defendant.

CHALLENGES FOR CAUSE

In assignments of error numbers two and three, defendant contends that the trial court erred in denying his challenges for cause as to prospective jurors Tony Pennywell and William Cobb. Defendant argues that Mr. Pennywell could not be impartial, “would consider law enforcement witnesses as being superior to other witnesses,” and was not rehabilitated. Regarding Mr. Cobb, defendant asserts that Mr. Cobb would give the testimony of law enforcement personnel greater weight. Defendant further contends that Mr. Cobb’s belief that the defendant was guilty indicated he could not be a fair and impartial juror. The State argues that despite the answers of the two challenged prospective jurors, which revealed their bias towards law Lenforcement witnesses, the to[1213]*1213tality of their answers indicate that they were able to be impartial.

Regarding defendant’s claims that the trial judge erred in denying his challenges for cause, in State v. Lutcher, 96-2378 (La.App. 1 Cir. 9/19/97), 700 So.2d 961, writ denied, 97-2537 (La.2/6/98), 709 So.2d 731, we held:

To prove there has been error warranting reversal of the conviction and sentence, defendant need only show (1) the erroneous denial of a challenge for cause, and (2) the use of all his peremptory challenges. The trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the court abused its discretion.

Lutcher, 96-2378 at 5, 700 So.2d at 966 (citation omitted).

In State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686, the Louisiana Supreme Court held that “[prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges.” Therefore, when a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. State v. Maxie, 93-2158, p. 15 (La.4/10/95), 653 So.2d 526, 534. Because both the record and the defendant’s brief reflect that the defendant exhausted his peremptory challenges, we need only decide whether the trial judge erred in denying defendant’s challenges for cause.

Louisiana Code of Criminal Procedure article 797 provides the grounds for challenges for cause. The article states, in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient" ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
ls(4) The juror will not accept the law as given to him by the court ....

Even when a prospective juror declares his ability to remain impartial, a challenge for cause should still be granted if the prospective juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law may be reasonably inferred. State v. Thompson, 489 So.2d 1364, 1370 (La.App. 1 Cir.), writ denied, 494 So.2d 324 (1986).

During the voir dire examination of the first panel of prospective jurors, the trial court asked each person on the panel whether he or she had friends or relatives who were employed in law enforcement. Mr. Pennywell indicated that he had an ex-brother-in-law and nephew who were both Baton Rouge City police officers. When asked if these relationships would affect him, Mr. Pennywell stated that he “probably [would] lean toward law enforcement.” In further answers, Mr. Pennywell indicated that he would find that police officers who testified for the State were more credible than other witnesses.

Mr. Cobb stated that one of his cousins was recently retired from the Baton Rouge City Police Department and that his nephew was currently an officer in that same department. However, he did not believe that his “ability to sit as a juror” would be affected by those relationships.

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Related

State v. Kang
831 So. 2d 409 (Louisiana Court of Appeal, 2002)
State v. Anderson
786 So. 2d 917 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
745 So. 2d 1210, 99 La.App. 1 Cir. 0482, 1999 La. App. LEXIS 3141, 1999 WL 1018084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blank-lactapp-1999.