State v. Buckley

120 So. 3d 819, 2011 La.App. 4 Cir. 1811, 2013 WL 3378711, 2013 La. App. LEXIS 1389
CourtLouisiana Court of Appeal
DecidedJuly 3, 2013
DocketNo. 2011-KA-1811
StatusPublished
Cited by1 cases

This text of 120 So. 3d 819 (State v. Buckley) 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. Buckley, 120 So. 3d 819, 2011 La.App. 4 Cir. 1811, 2013 WL 3378711, 2013 La. App. LEXIS 1389 (La. Ct. App. 2013).

Opinion

MADELEINE M. LANDRIEU, Judge.

|; Christopher E. Buckley was charged by bill of information with seven counts of forcible rape, violations of Louisiana Revised Statute 14:42.1. One count charged him with the forcible rape of a twenty-one-year-old victim in 2003. The other six counts charged him with forcible rape of the thirteen-year-old daughter of his girl[822]*822friend. At the time these offenses occurred, Mr. Buckley was employed as a New Orleans Police Officer.

Prior to trial, the district court severed Count One (relative to the twenty-one-year-old victim) from the remaining counts and proceeded to trial only on the six counts relating to the minor victim. On the third day of his jury trial, Mr. Buckley entered a Crosby1 plea as to all counts in the bill of information, pleading guilty but preserving his right to appeal several pretrial rulings. Prior to sentencing, the trial court heard victim impact testimony from several -witnesses, including several alleged victims of unadjudicated sexual assaults by Mr. Buckley. The trial court then sentenced Mr. Buckley to serve thirty-five years at hard labor, without benefit of parole, probation, or suspension of sentence, on each of the |2seven counts, all sentences to run consecutively to each other. He now appeals his conviction arguing that the trial court committed pre-trial errors and that he received a constitutionally excessive sentence.

ERRORS PATENT

A review of the record reveals no errors patent on the face of the record.

ASSIGNMENTS OF ERROR

Mr. Buckley raises the following assignments of error:

(1) The trial court erred by denying his motion for change of venue.
(2) The trial court erred by denying his motion to suppress a compelled statement that was taken in conjunction with an administrative hearing.
(3) The trial court erred by denying his written and oral motions for continuance.
(4) The sentence imposed is unconstitutionally excessive.

VENUE

Prior to trial, Mr. Buckley filed a motion seeking a change of venue, asserting that due to highly publicized federal cases involving NOPD officers, “a New Orleans Police Officer must prove his innocence versus the District Attorney proving his guilt.” The trial court denied this motion.

On appeal, Mr. Buckley contends that the trial court erred by denying the motion to change venue because the pre-trial publicity surrounding his case, pre-trial publicity concerning other high-profile criminal cases pending in federal court against members of the New Orleans Police Department, and the alleged negative public sentiment against the NOPD engendered by these federal cases required a change of venue. The federal cases to which the defendant referred, known locally as the Danzinger Bridge Trial and the Henry-Glover Trial, involved the prosecution |3of police officers for crimes allegedly committed by them in the aftermath of Hurricane Katrina.

A defendant is guaranteed an impartial jury and a fair trial. LSA-Const. art. I, § 16; State v. Brown, 496 So.2d 261, 263 (La.1986). To accomplish this end, the law provides for a change of venue when a defendant establishes he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Bell, 315 So.2d 307, 309 (La.1975).

Louisiana Code of Criminal Procedure article 622 provides, in pertinent part:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and [823]*823impartial trial cannot be obtained in the parish where the prosecution is pending.

In unusual circumstances, prejudice against the defendant may be presumed. Unfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere that is utterly corrupted by press coverage or that is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob. See State v. David, 425 So.2d 1241, 1246 (La.1983). Otherwise, the defendant bears the burden of showing actual prejudice. State v. Lee, 2005-2098, p. 32 (La.1/16/08), 976 So.2d 109, 132.

A change of venue requires proof of more than mere public general knowledge or familiarity with the facts of the case. Lee, supra, p. 33, 976 So.2d at 133; State v. Frank, 99-0553, p. 14 (La.1/17/01), 803 So.2d 1, 15. Extensive knowledge in the community of either the crimes or the defendant is not sufficient by itself to render a trial constitutionally unfair. State v. Sparks, 88-0017, p. 16, (La.5/11/11), 68 So.3d 435, 457. A defendant bears the burden of showing the 14existence of prejudice in the collective mind of the community that makes a fair trial impossible. State v. Clark, 2002-1463, p. 17 (La.6/27/03), 851 So.2d 1055, 1070. Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the trial court’s sound discretion, and its decision will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. Sparks, 88-0017, p. 17, 68 So.3d at 457; Clark, 2002-1463, p. 17, 851 So.2d at 1071.

In State v. Bell, 315 So.2d 307, 311 (La.1975), the Louisiana Supreme Court outlined some relevant factors to be considered in determining whether a change of venue is warranted:

(1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation, 33 A.L.R.3d 17 (1970).

In State v. Lee, supra, the defendant, Derrick Todd Lee, was indicted with first degree murder for a May, 2002 brutal killing of a twenty-two-year-old female in East Baton Rouge Parish. Because DNA evidence allegedly linked Mr. Lee not only to this murder, but also to several other recent murders of young women in the area, it was widely speculated that Mr. Lee was the notorious South Louisiana serial killer that had preyed upon the local community for the past several years. Due to the extraordinary pretrial publicity surrounding the case, Mr. Lee moved for a change of venue. The trial court denied the motion, and Mr. Lee was ultimately convicted and sentenced to death. Id., p. 1, 976 So.2d at 115.

|fiOn direct appeal to the Louisiana Supreme Court after Mr. Lee’s conviction, the Court held that the trial court had not abused its discretion by denying the motion to change venue. The Supreme Court noted that Mr. Lee’s trial counsel had filed into evidence over five thousand pages of printed media reports and newscast transcripts published between July 2002 and January 2004 that related to the South Louisiana serial killer. The Court further [824]

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120 So. 3d 819, 2011 La.App. 4 Cir. 1811, 2013 WL 3378711, 2013 La. App. LEXIS 1389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buckley-lactapp-2013.