State v. Ford

643 So. 2d 293, 1994 WL 533046
Louisiana Court of Appeal·Decided September 21, 1994·No. 26,422-KA·Published·Cited by 35 cases

Opinion

643 So.2d 293 (1994)

STATE of Louisiana, Plaintiff-Appellee,
v.
Terry Lavon FORD, Defendant-Appellant.

No. 26,422-KA.

Court of Appeal of Louisiana, Second Circuit.

September 21, 1994.

*295 Kurt J. Goins, Indigent Defender Office, Shreveport, for defendant-appellant.

Richard Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty., Tommy J. Johnson and Hugo A. Holland, Jr., Asst. Dist. Attys., Shreveport, for plaintiff-appellee.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

NORRIS, Judge.

Terry Lavon Ford was charged by bill of information with armed robbery, La.R.S. 14:64. He proceeded to trial where a 12-member jury found him guilty of the lesser included offense of first degree robbery, La. R.S. 14:64.1. He was later adjudicated a second felony offender and sentenced to 20 years at hard labor, without benefit of probation, parole or suspension of sentence. Ford now appeals, urging the trial court erred in requiring him, at voir dire, to state race- and gender-neutral reasons for exercising his peremptory challenges, and that the evidence was insufficient to prove beyond a reasonable doubt that he was the perpetrator of the robbery. For the reasons expressed, we affirm.

Factual background

On the afternoon of September 22, 1992, carpet cleaner Eddie Hinton was on his way home from a job. He stopped at the Thrifty Liquor store on Linwood Avenue. He wanted to use the pay phone on the side of the building, but noticed that three black men were standing around the phone, one of them actually using it. He therefore went into the store, made a purchase, and put it in his car. The black men were still standing around the phone, but were apparently not using it. Hinton walked up and asked if they were through with it; they said yes. Hinton went to the phone and reached in his front shirt pocket for a quarter; his other money, about $55 in bills, showed when he fished out the quarter. Just as he placed his call, one of the men told him, "Give me all your money," and Hinton felt something poking him in his side. He looked and saw his assailant was holding a small pistol on him. The assailant added, "I am not playing." Hinton handed him the cash, getting a good look at the assailant's face. The assailant then ran across the street toward an auto parts store; the other two men walked off in a different direction.

Hinton hurried back inside Thrifty Liquor and told the manager, Paul Farnham, that he had just been robbed. In fact, Hinton pointed through the window (the entire storefront is made of glass) at the fleeing assailant. Farnham recognized him as a regular customer, one who had been in the store several times that day. Farnham did not, however, know the man's name.

When police arrived, Hinton described the assailant to Officer Gaspard as a black male about 5'11" tall, 180-200 lbs., heavy-set build, in his mid-20s, a light growth of whiskers, dark brown skin, and wearing a purple sleeveless muscle shirt and knee-length green short pants. Farnham described the *296 assailant as a black male about 6 feet tall, 200 lbs., hair on his chin, 25 years old, dark-complected, medium build, and wearing a purple tank top shirt. Officers could not locate the suspect, but Detective Muller advised Farnham to call the police if he saw him again. Officers dusted the pay phone for fingerprints but gathered no physical evidence from the scene.

Farnham did indeed see the suspect again, and phoned the police. An officer stopped the defendant for a "field interview" and got his name, Terry Lavon Ford. Detective Muller obtained a three-year-old photo of Ford and assembled a photographic lineup. Farnham, the store manager, immediately identified Ford as the suspect pointed out by Hinton at the scene, but commented that the suspect looked different from his photo. Farnham thought the suspect had gained weight since the photo, and was wearing his hair differently. Hinton could not pick a suspect from this lineup, and the police took no further action.

Several months later, in April 1993, Hinton was in City Court on an unrelated matter. There, he testified, he saw and immediately recognized "the guy that robbed me," and learned that his name was Terry Ford. After his business was done, Hinton immediately went to the Police Station and reported this to Detective Muller. Muller located a more recent (February 1993) mug shot of Ford, and assembled a second photo lineup. From this lineup, Hinton immediately and positively identified Ford as his assailant. Detective Muller later arrested Ford at his girlfriend's house. Both Hinton and Farnham identified Ford at trial as the assailant.

At trial Ford denied that he robbed Hinton, maintaining he had no recollection of the day in question.

Discussion: Gender-neutral peremptory challenges

By his first three assignments Ford urges the trial court erred in sustaining the state's objection, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Georgia v. McCollum, 505 U.S. ___, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), to the defense's use of peremptory challenges, in requiring the defendant to give both race- and gender-neutral reasons for using peremptory challenges, and in denying the defendant's motion for new trial.

In the portion of the voir dire designated as appellate record, the prosecutor objected to defense counsel's use of peremptory challenges to exclude white male venire members from the jury. R.p. 105. Defense counsel argued that Georgia v. McCollum applied only to race, not to sex; and that the defense had accepted two white female jurors. The court found that the state's objection raised an equal protection problem and, implicitly finding that the State had made the prima facie showing of intentional discrimination, required the defense to provide race- and gender-neutral reasons for challenging three white males.[1] Counsel replied that as to venire member Mr. Dennington, "there was something in his demeanor * * * and he never looked at Mr. Ford, especially when I walked over to him." R.p. 108. Counsel said the same applied to the second venire member, Mr. Wilson. As for the third, Mr. Ferguson, "I did not notice that problem but it was more of a gut feeling, a discomfort." Id. The court denied the state's objection as to Dennington and Wilson, but sustained it as to Ferguson, finding the explanation not neutral. R.p. 109. The transcript suggests that Mr. Ferguson served on the jury, although the court minutes are unclear.[2] Counsel lodged a timely objection, and later moved for new trial on the basis that the court erred in requiring neutral reasons for excluding white male jurors. R.p. 94.

On appeal Ford correctly contends that under the rule of Batson v. Kentucky, supra, and Georgia v. McCollum, supra, a criminal defendant cannot exercise *297 peremptory challenges on the basis of race. He further argues that the Batson-McCollum rule applies only to race, not to gender, and in support cites State v. Adams, 533 So.2d 1060 (La.App. 4th Cir.1988), State v. Porter, 615 So.2d 507 (La.App. 3d Cir.1993), and La.C.Cr.P. art. 795 C. The article provides:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by

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