State v. Jackson

629 So. 2d 1374, 1993 La. App. LEXIS 3912
Louisiana Court of Appeal·Decided December 22, 1993·No. No. 25,455-KA·Published·Cited by 1 cases

Opinion

HIGHTOWER, Judge.

A jury found Harold Jackson guilty as charged of possession of cocaine with intent to distribute, LSA-R.S. 40:967(A). Subsequently, the district court adjudicated defendant a second felony offender and, after an earlier appeal and remand, ordered incarceration at hard labor for fifteen years. Now before this court for a second time, he again presents numerous assignments of error. We affirm.

FACTS

On March 9, 1990, at approximately 2:00 a.m., officers of the Jonesboro Police Department observed a 1975 Chevrolet Nova weaving back and forth across the line dividing two northbound lanes of U.S. Highway 167. Suspecting the operator to be intoxicated, they stopped the vehicle after directing it into the parking lot of a bowling alley.

Police Chief McKinney ordered the woman driver out of the car, requested her license, and began a series of questions. Within moments, Officer Robinson instructed the three other occupants to exit and place their hands on the top of the vehicle. At about the same time, McKinney made some form of reference to drugs and directed the operator to empty her purse. Upon overhearing this, Jackson, previously positioned in the front passenger seat, bolted toward the bowling alley while holding a blue-gray jacket.

With Robinson in pursuit, Jackson fled around the side of the building and toward a wooded area. Officer Perry, another Jones-boro policeman who had just driven to the scene, also joined the chase. As defendant approached the woods, he fell and cast the jacket away. One of the officers then overtook Jackson, before further flight could occur.

Retrieving and checking the jacket, Robinson discovered three large clumps of a white substance, later identified as crack cocaine. After arresting all four persons, the officers conducted a search of the vehicle, uncovering a waist pouch containing Jackson’s driving license, $372 in cash, $135 in food stamps, a money order for $40, a utility company refund check, and a black billfold enclosing a small set of postal scales.

After a jury convicted defendant of possession of cocaine with an intent to distribute, the trial court adjudged him a second felony offender and assessed fifteen years at hard labor. See LSA-R.S. 40:967; LSA-R.S. 15:529.1. Jackson, in his ensuing appeal, asserted thirty assignments of error. Without [1379]*1379addressing the other complaints, we vacated the sentence due to the district judge’s failure to rule on motions for a new trial and a post-verdict judgment of acquittal. See State v. Jackson, 614 So.2d 783 (La.App.2d Cir.1993). On remand, after denying those two requests, the lower court reimposed the identical minimum penalty. In the present appeal, the remaining specifications of error are again presented.

DISCUSSION

Juror Challenges for Cause

Defendant’s first two assignments of error concern the denial of his challenges for cause directed at two prospective jurors. In order to succeed in such a complaint, he must show an erroneous denial of the challenge and, also, prejudice from the ruling. State v. Ross, 623 So.2d 643 (La.1993); State v. Vanderpool, 493 So.2d 574 (La.1986).

LSA-C.Cr.P. Art. 797 provides grounds for challenges for cause by the state or the defendant. In that the trial court is vested with broad discretion in addressing such an issue, its ruling will not be disturbed on appeal unless a review of the entire voir dire indicates abuse. State v. Ross, supra; State v. Essex, 618 So.2d 659 (La.App.2d Cir.1993); State v. Scriber, 605 So.2d 661 (La.App.2d Cir.1992); State v. Haynes, 514 So.2d 1206 (La.App.2d Cir.1987).

During voir dire, prospective juror Michael Wayne Chatham disclosed that he worked regularly from 4:00 p.m. until midnight and had been requested, by his employer, to report to the job as soon as his jury obligation ended each day. Defense counsel asserted that such a schedule would preclude adequate attention to courtroom duties. The state responded that the arrangement afforded plenty of time for rest before the daily 9:00 a.m. sessions. After questioning Chat-ham, who gave assurances he could serve without any problem, the court refused to excuse this individual. Defendant then exercised his second peremptory challenge.

Although mere inconvenience is not grounds for challenging a juror, State v. Wiley, 513 So.2d 849 (La.App.2d Cir.1987), writ denied, 522 So.2d 1092 (La.1988), the defense argues that the probable loss of sleep created impartiality, as enumerated at LSA-C.Cr.P. Art. 797(2). The trial judge, however, sufficiently satisfied herself that the prospective jury member would not be adversely affected by his work schedule. Thus, we cannot say that the lower court abused its broad discretion by refusing to excuse Chatham. Cf. State v. Bourque, 622 So.2d 198 (La.1993); State v. Collins, 546 So.2d 1246 (La.App. 1st Cir.), writ denied, 558 So.2d 599 (La.1989).

Defendant additionally argues that another venireman showed a willingness to require defendant to prove himself innocent. Rickey McBride, who is a school teacher and father of a teenager, initially stated an awareness of the drug problem and his belief that persons arrested on narcotics charges should not be presumed innocent. However, extensive questioning by both sides reflected that the potential juror adequately understood the state faced the burden of proof.

Furthermore, upon defense inquiry, McBride indicated he only thought the law should be changed, yet well realized he must apply the existing standards and not his own ideas. Finding that the prospective juror had shown a complete readiness to implement the court’s instructions, the trial judge also rejected this challenge for cause. In our view, that decision did not constitute an abuse of discretion. Cf. State v. Griffin, 618 So.2d 680 (La.App.2d Cir.1993).

Of course, neither Chatham nor McBride actually served on the jury. Additionally, the record does not disclose that defendant exhausted his twelve peremptory challenges, but simply that he exercised eleven while the state presented four. Both sides also peremptorily excused venireman David Harper on their election slips. However, under the intendment of LSA-C.Cr.P. Art. 788, this dismissal could not be ascribed to the defense. Furthermore, at no time during voir dire did the trial judge admonish eithér attorney that their allotted number had been utilized.

Thus, defendant having failed to demonstrate use of all his peremptories, prejudice is not presumed even if the erroneous [1380]*1380denial of a challenge could be established. See State v. Ross, supra; State v. Essex, supra. These two assignments of error lack merit.

Search and Seizure

In assignments 4, 6, and 25, Jackson asserts that no probable cause existed to stop or search the automobile, and that the trial court erred by denying his motion to suppress testimony about all events transpiring after the police first interfered. Specifically, he argues that officers acted in contravention of the Fourth Amendment to the Federal Constitution and Article 1, Section 5 of the Louisiana Constitution.

It is primarily contended that the Jonesboro authorities had no justification for initially stopping the automobile. However, the right of police to stop and interrogate upon reasonable suspicion of criminal conduct is recognized by LSA-C.Cr.P. Art.

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State v. Jackson, 629 So. 2d 1374, 1993 La. App. LEXIS 3912 (La. Ct. App. 1993).

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State v. Jackson
629 So. 2d 1374 (Louisiana Court of Appeal, 1993)