State v. Dryer

449 So. 2d 620
CourtLouisiana Court of Appeal
DecidedApril 3, 1984
Docket83 KA 1122
StatusPublished
Cited by4 cases

This text of 449 So. 2d 620 (State v. Dryer) 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. Dryer, 449 So. 2d 620 (La. Ct. App. 1984).

Opinion

449 So.2d 620 (1984)

STATE of Louisiana
v.
James Albert DRYER.

No. 83 KA 1122.

Court of Appeal of Louisiana, First Circuit.

April 3, 1984.
Rehearing Denied May 21, 1984.

*621 William M. Quin, Asst. Dist. Atty., Amite, for plaintiff-appellee.

R. Judge Eames, Baton Rouge, for defendant-appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

James Albert Dryer (defendant) was charged by bill of information with the armed robbery of Nadine Adams at John's Curb Market # 2 in Pontchatoula, Louisiana, a violation of La.R.S. 14:64. Defendant pled not guilty. After trial by a twelve-person jury, defendant was found guilty as charged. He was sentenced to serve twenty years with the Department of Corrections without benefit of probation, parole, or suspension of sentence. He has appealed and alleged two assignments of error.

On October 29, 1981, Nadine Adams was working the 11:00 p.m. to 7:00 a.m. shift at John's Curb Market # 2. At approximately 12:04 a.m. on October 30, Adams was sitting in the office counting money, when she looked up and saw a shotgun come through the door. The assailant placed the gun, which Adams described as a double-barrel shotgun, about five inches from her head. He told her that this was a "stickup" and that he wanted her money. The robber took all the money she had in the office and asked her if there was any more. She indicated that there was some in the cash register. His accomplice, who was never apprehended, opened the cash register and removed the contents. Adams testified that a total of approximately $220.00 was taken, including $100.00 from the cash register. Three rolls of quarters, a roll of nickels and a roll of pennies were taken from the register. Adams testified that the robber wore blue jeans and a white pullover shirt and that she got a good look at him because he had no mask on and the robbery took about five minutes. She identified the defendant in a lineup on October 30, 1981, at the Ponchatoula Police Station. She subsequently identified the defendant *622 in court as the man who robbed her with a shotgun on October 30. A shotgun was introduced by stipulation as a gun found between 1:00 a.m. and 9:00 a.m. on October 30 at the Chicken Shack Bar in Hammond. Adams also identified the shotgun as the gun used by defendant.

ASSIGNMENT OF ERROR NUMBER 1

The trial court erred in sustaining the state's objection to questions directed to a material witness called to testify at defendant's hearing on "Motion For New Trial" in relation to prejudicial conduct which occurred in the presence of jurors outside the courtroom which made it impossible for the defendant to obtain a fair trial.

After being found guilty as charged by an 11 to 1 vote of the jury, defendant retained new counsel who initially filed a motion for new trial. In connection therewith, a lengthy new trial hearing was conducted by the trial court over a period of many months. During the course of that hearing, counsel propounded the following question to Glenn Burge, who had served as foreman of the jury which convicted defendant: "Do you recall that two women Jurors became emotionally distraught and began to reveal details of robberies that had victimized members of their family?"

The State objected to the question on the grounds that La.R.S. 15:470 did not permit such an inquiry. The trial judge sustained the objection. Counsel laid absolutely no predicate before asking Burge this question. His whole cross-examination of Burge prior to that time concerned Burge's acquaintance with John Bohning, the owner of John's Curb Market, and the events surrounding an alleged incident which occurred at the coffeepot in the Grand Jury room on the morning of the trial after the jury had been selected. Burge testified he had no recollection of defendant entering the room on that morning to get coffee.

Later, during counsel's examination of Arthur McDonald, the juror who voted not guilty, he was able to develop McDonald's version of what apparently occurred on the morning when defendant entered the coffee room where several jurors were drinking coffee. McDonald testified that on the second day of the trial and after the jury was selected but before trial began, several jurors were in the Grand Jury room which had a set of double doors, both of which were open. There was a coffeepot on a table in the rear of the room where anyone could get complimentary coffee. McDonald said people were coming and going, getting coffee. He testified that defendant came into the room to get coffee. McDonald then made the following observation:

and I just got the feeling, you know, because I thought to myself that this man ain't got a chance and the trial hadn't even started yet, you know, they are just felt like—looked like they had a hostile feeling toward him, you know, they had told one of the bailiffs, what is he doing in here, you know, he is not supposed to be in here, to get him out and the bailiff come got him out.

Using his examination of Burge and McDonald, counsel now argues that La. R.S. 15:470 cannot prohibit him from developing evidence concerning alleged jury misconduct because the conduct complained of violated defendant's constitutional right to a fair trial by an impartial jury. We disagree and find that the record falls woefully short of presenting a substantial claim that defendant's rights were violated.

Pursuant to the Louisiana Jury Shield Law, La.R.S. 15:470, no petit juror is competent to testify to his own or his fellows' misconduct, or to give evidence to explain, qualify, or impeach any verdict found by the jury of which he was a member. However, the jury privilege of La. R.S. 15:470 is not absolute and must yield to a substantial showing that the defendant was deprived of a constitutional right, such as a fair trial, due process or cross-examination. State v. Graham, 422 So.2d 123 (La.1982); State v. Gomez, 433 So.2d 230 (La.App. 1st Cir.1983), writs denied, 440 So.2d 730 (La.1983) and 441 So.2d 747 (La.1983).

*623 The cases cited by defendant in support of this assignment are inapposite factually. In State v. Marchand, 362 So.2d 1090, 1094 (La.1978), the Supreme Court dealt with a bailiff's communication to the foreman and another member of the jury that defense counsel's objection prevented the judge from granting their request to have access to an alleged confession during deliberations. The court held that such communication deprived the accused of his constitutional and statutory right to an impartial jury verdict untainted by unauthorized communications received in contravention of statute or influenced by any consideration other than defendant's innocence or guilt solely on the basis of the evidence properly brought before the jury.

In State v. Wisham, 371 So.2d 1151 (La. 1979), the Supreme Court held that two jurors who allegedly viewed the arrest of a defense witness during a recess should have been permitted to testify at a motion for new trial concerning their observations. The trial judge refused to permit the defense to offer evidence to show that the jurors would not only testify that they observed the arrest but also that they told the other jurors and that it was discussed at length during jury deliberations. In remanding the case, the Supreme Court ordered the trial court to hear the evidence relative to viewing the arrest and informing the others of its occurrence. The Supreme Court characterized the conduct as "presumptively prejudicial."

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449 So. 2d 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dryer-lactapp-1984.