State v. Duplessy

853 So. 2d 77, 2003 WL 21766643
CourtLouisiana Court of Appeal
DecidedJuly 29, 2003
Docket03-KA-185
StatusPublished
Cited by5 cases

This text of 853 So. 2d 77 (State v. Duplessy) 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. Duplessy, 853 So. 2d 77, 2003 WL 21766643 (La. Ct. App. 2003).

Opinion

853 So.2d 77 (2003)

STATE of Louisiana
v.
Clifford J. DUPLESSY.

No. 03-KA-185.

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 2003.

*78 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.

Martin E. Regan, Jr., Attorney, Kris A. Moe, Attorney, New Orleans, LA, for Defendant-Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.

EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information on August 1, 2001, charging defendant, Clifford Duplessy, with simple criminal damage to property where the damage exceeded $500, in violation of LSA-R.S. 14:56. Defendant pled not guilty, and the matter proceeded to trial on December 10, 2001. After considering the evidence presented, the six person jury found defendant guilty as charged. On January 25, 2002, the trial judge sentenced defendant to one year of imprisonment at hard labor at which time he made an oral motion for appeal.

Thereafter, the state filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction for second degree battery. On March 8, 2002, defendant admitted the allegations in the multiple bill, and in accordance with the plea agreement, the trial judge vacated defendant's original sentence and resentenced him to two years. Additionally, the trial court ordered defendant to pay restitution in the amount of $500 and previously court-ordered monthly child support in the amount of $657. During the sentencing hearing, defendant withdrew his oral motion for appeal in compliance with the plea agreement in which defendant agreed not to appeal.

*79 On April 12, 2002, through newly retained counsel, defendant filed a motion to vacate illegal sentence, motion for out-of-time appeal, and motion for appeal bond. The state responded by filing a motion to withdraw the plea agreement. After a hearing on May 2, 2002, the trial court granted the state's motion to withdraw the plea agreement on the basis defendant violated the terms of the plea agreement. The trial court reinstated defendant's original one year sentence and, consequently, found defendant's motion to vacate illegal sentence to be moot.

Subsequently, on July 19, 2002, a multiple offender hearing was held. The state offered a certified copy of defendant's prior conviction and defendant stipulated to his identity. Thereafter, the trial court found defendant to be a second felony offender, vacated his original one year sentence, and resentenced him as a multiple offender to three years. Defendant now appeals.

FACTS

At approximately 12:30 p.m. on July 2, 2001, Charles Kirchem was leaving his place of employment at Doctor's Hospital to run errands when he heard a loud hissing noise as he was walking to his vehicle in the parking garage. He saw someone, whom he later identified as defendant, squatted down beside a vehicle near one of its tires. Mr. Kirchem was suspicious and slowed down by piddling with his keys. Defendant then walked towards Mr. Kirchem at which time Mr. Kirchem noticed defendant carrying a white rag in one hand and a white aerosol can in the other. Mr. Kirchem made eye contact with defendant and nodded at him as defendant proceeded to walk toward the elevator and stairs.

Mr. Kirchem continued to walk to his truck at which time he noticed that the car of his co-worker, Kim Hughes, had a flat tire. He called Ms. Hughes from his cell phone and told her to check her car. As Mr. Kirchem was exiting the parking garage, he again saw defendant coming down the stairs near the elevators. Mr. Kirchem was suspicious so he circled around the area. He saw defendant walk through the nearby Rite Aid parking lot before losing sight of him.

Meanwhile, Ms. Hughes went to the parking garage and discovered her 1994 Mustang had been damaged. Both tires on the passenger side of the car had been slashed and some sort of substance had been poured on her car that faded the paint and damaged the headlights and rear lights. The damage was estimated at $2,200. Ms. Hughes called the police who came to the scene. She told the police that she thought defendant, who was the ex-husband of her friend Sharon, had done it. By this time, Mr. Kirchem had returned to the scene. He subsequently gave the police a description of the perpetrator. Approximately one week after the incident, Mr. Kirchem was shown a photographic lineup from which he identified defendant as the person he saw near Ms. Hughes' car.

At trial, defendant, the owner of Top to Bottom construction company, presented alibi testimony that he was on a job with Gina Michel the time the incident took place. Ms. Michel, owner of G & L Home Improvements, testified that she and defendant were at a home in Violet around 11:30 a.m. on July 2, 2001 so defendant could give his opinion as to why the home's roof was leaking. Thereafter, the two went to lunch at Par-3 Diner in Chalmette. Ms. Michel testified she and defendant were at lunch until 1:00-1:30 p.m.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues the trial court abused its discretion *80 in denying his Batson challenges. Defendant, who is white, asserts that the trial court erred in allowing the state to use its peremptory challenges to strike three prospective black jurors.[1] Defendant contends the race neutral explanations offered by the state to justify the use of its peremptory challenges were weak and insufficient to overcome the impermissible discriminatory use of its strikes.

It is well established that the use of peremptory challenges based solely on a juror's race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court established a three step analysis to determine whether a peremptory challenge has been used in violation of the Equal Protection Clause.

To prevail on a Batson challenge, a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances that raise an inference that the prosecutor used his or her peremptory challenges to exclude potential jurors on the basis of race. Batson, 476 U.S. at 94, 106 S.Ct. at 1721, 90 L.Ed.2d at 86; State v. Joseph, 01-360 (La.App. 5 Cir. 10/17/01), 802 So.2d 735, 739, writ denied, 02-232 (La.12/13/02), 831 So.2d 979. In State v. Green, 94-887 (La.5/22/95), 655 So.2d 272, 288, the Louisiana Supreme Court discussed how a defendant may establish his prima facie case:

The defendant may offer any facts relevant to the question of the prosecutor's discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

If a prima facie case is established, the burden shifts to the state to come forward with a race neutral explanation for its peremptory challenges. Purkett v. Elem,

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State v. Kirsch
880 So. 2d 890 (Louisiana Court of Appeal, 2004)
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871 So. 2d 483 (Louisiana Court of Appeal, 2004)
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864 So. 2d 843 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
853 So. 2d 77, 2003 WL 21766643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duplessy-lactapp-2003.