State v. Harvey

598 So. 2d 715, 1992 La. App. LEXIS 1330, 1992 WL 96135
CourtLouisiana Court of Appeal
DecidedApril 28, 1992
DocketNo. 91-KA-983
StatusPublished

This text of 598 So. 2d 715 (State v. Harvey) 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. Harvey, 598 So. 2d 715, 1992 La. App. LEXIS 1330, 1992 WL 96135 (La. Ct. App. 1992).

Opinions

WICKER, Judge.

Demetra Harvey, the defendant,’ was charged by bill of information with violation of La.R.S. 14:93 (cruelty to a juvenile) in that she did allow, aide, abet and/or procure in the infliction of beatings about the buttocks, head, legs, back, chest and body of Kierra Dukes. Dukes, a 20-month old infant, died February 15, 1991. The co-defendant, Lawrence Williams, also died; thus, his name was deleted from the bill of information. After a jury trial Harvey was convicted as charged. She was sentenced to seven years at hard labor. We affirm.

On appeal defendant assigns the following errors:

[716]*7161. The trial court committed reversible error when the court did not follow the standards of Batson v. Kentucky in making the decision to deny appellant’s motion to dismiss the jury.
a. The prosecutor’s peremptory challenges against potential black jurors resulting in a black defendant being tried by an all white jury amounts to a prima facie showing of discrimination under Batson.
b. The prosecutor did not provide legitimate, specific, trial-related reasons for striking the black veniremen, and the trial judge applied the incorrect standard when he did not assess the weight and credibility of the prosecutor’s proferred reasons.
2. The trial court erred in denying the request for special jury charge by defendant.
a. The jury charge given by the court is inadequate as it denies the appellant the full purview of the law of principals.

The state argues that the defendant waived all objections to the composition of the jury by waiting to object until after the jury was impaneled and sworn. See State v. Williams, 524 So.2d 746 (La.1988). Irrespective of whether the objection was timely made we find no merit to defendant’s Batson challenge for the reasons stated.

The defendant contends in brief that the state systematically excluded two potential jurors solely on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also La.C.Cr.P. art. 795. She also asserts the reasons given by the state were not legitimate, specific nor trial-related. Furthermore, she argues the trial judge used the wrong standard of review.

In State v. Collier, 553 So.2d 815, 818-819 (La.1989) the Louisiana Supreme Court explained Batson as follows:

Under Batson the defendant, after timely objection, must demonstrate a pri-ma facie case of purposeful discrimination. To do so, the defendant must establish that he is a member of a cognizable racial group, that the prosecutor has exercised his peremptory challenges to remove other members of that race from the jury, and that these facts, along with the other relevant circumstances, raise an inference that the prosecutor used his peremptory challenges to exclude the veniremen from the jury on account of their race. Id. at 96, 106 S.Ct. at 1722.
The trial judge must determine whether the defendant has established the requisite prima facie case. In making this determination, the trial judge should consider all relevant circumstances, including any pattern of strikes by the prosecutor against black jurors and any questions or statements by the prosecutor during voir dire examination or in exercising his challenges which may support or refute an inference of purposeful discrimination. Id. at 96-97, 106 S.Ct. at 1722-1723. [footnote omitted].

The jury was all white. The defendant in this case is a black female and the state used three peremptory challenges against black females. The trial judge in the instant case evidently found that a prima facie case had been met for discrimination since he allowed the state to proceed with its reasons for challenges of black jurors.

However, even assuming there had been a prima facie showing of purposeful discrimination we conclude the trial judge correctly found no merit to the Batson claim following the rebuttal of the state.

As Collier explained at 820:

Once the defendant makes a prima fa-cie showing of purposeful discrimination, Batson shifts the burden to the prosecutor to come forward with a neutral explanation for challenging the black jurors. This explanation may be something less than justification of a challenge for cause, but must be something more than the prosecutor’s assumption or intuition that the juror will be partial to the defendant because of their shared race. Neither may the prosecutor merely assert good faith or deny discriminatory motive. The neutral explanation must be one which is clear, reasonably specific, legitimate and related to the particular case [717]*717at bar. Id. 476 U.S. at 97-98, 106 S.Ct. at 1723; Belcuore, Restricting Racially Motivated Peremptory Challenges, 24 Fed.B.J. 39 (Jan. 1987).
After the prosecutor has presented reasons for his use of a peremptory challenge which on their face are racially neutral, an issue of fact is joined, and the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge. Tomkins v. Texas, 774 S.W.2d 195, 202 (Tx.Crim.App.1987), aff'd. without opinion by an equally divided court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989); Batson, 476 U.S. at 98, 106 S.Ct. at 1723.

Defendant contends the state’s reasons for challenging Deborah Carter and Kim Kaywood were not accurate. She argues that although the explanations given may he neutral on their face an assessment of the weight and credibility shows otherwise.

In response to the Batson challenge, the state provided the following reasons:

our reasons for challenging Mrs. Carter are abundantly clear on the record. This woman stated she would have a great deal of difficulty understanding what was going on in these proceedings. She kept stating over and over again this was all new to her, she didn’t understand; she wasn’t sure about this, she wasn’t sure about that, and she stated at one point during the questioning, quite clearly, she felt she would have trouble rendering a guilty verdict.
She appeared very apprehensive about coming back into open court and stating in front of the Defendant that she had voted guilty. In fact, at one time, I believe she asked the question: “Will the Defendant be here? Is she going to be sitting there when I come back with the jury verdict?”
Having expressed that concern, the State felt that it was proper to exercise a peremptory challenge on Mrs. Carter.
With regard to Ms. Kaywood, the last juror mentioned by Mr. O’Neill, she was asked a number of questions along the lines whether or not she saw a difference between abuse and discipline, and at one point, in response to a question regarding whether it was all right to beat a child with a belt or not, she said it was okay, as long as they weren’t too long.

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Related

Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Tompkins v. Texas
490 U.S. 754 (Supreme Court, 1989)
State v. West
568 So. 2d 1019 (Supreme Court of Louisiana, 1990)
State v. West
552 So. 2d 478 (Louisiana Court of Appeal, 1989)
State v. Collier
553 So. 2d 815 (Supreme Court of Louisiana, 1989)
State v. Williams
524 So. 2d 746 (Supreme Court of Louisiana, 1988)
Tompkins v. State
774 S.W.2d 195 (Court of Criminal Appeals of Texas, 1987)

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Bluebook (online)
598 So. 2d 715, 1992 La. App. LEXIS 1330, 1992 WL 96135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harvey-lactapp-1992.