State v. Johnson

595 So. 2d 789, 1992 WL 36464
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1992
Docket23334-KA
StatusPublished
Cited by12 cases

This text of 595 So. 2d 789 (State v. Johnson) 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. Johnson, 595 So. 2d 789, 1992 WL 36464 (La. Ct. App. 1992).

Opinion

595 So.2d 789 (1992)

STATE of Louisiana, Appellee,
v.
Terry Michael JOHNSON, Appellant.

No. 23334-KA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1992.

*791 Stephen T. Sylvester, Ruston, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Robert W. Levy, Dist. Atty., John L. Sheehan, Asst. Dist. Atty., Ruston, for appellee.

Before MARVIN, NORRIS and VICTORY, JJ.

MARVIN, Chief Judge.

In this appeal of his conviction by jury of aggravated rape, Terry Michael Johnson complains of the trial court's rulings regarding juror challenges (four assignments) and evidentiary objections (seven assignments). Johnson does not question the sufficiency of the evidence to convict.

We affirm.

JUROR CHALLENGES

Johnson contends the trial court erred during jury selection by sustaining the state's challenge for cause of Wilbert Dunn, by overruling Johnson's challenge for cause of Dr. Lazarus, and by allowing the state to peremptorily challenge Shelton Dunn after both the state and Johnson had accepted him as a juror.

Wilbert Dunn

Wilbert Dunn had a cataract in one eye and some hearing loss in both ears from working in a sawmill. The trial court found that Dunn's impaired vision and hearing made him incapable of performing the duties of a juror, and dismissed him on the state's challenge for cause. CCrP Art. 401.

We do not reach the merits of Johnson's assignment that the trial court's ruling was erroneous. The state used only six of its 12 peremptory challenges. CCrP Art. 800 B clearly provides that a defendant cannot complain of the trial court's erroneous allowance to the state of a challenge for cause unless the ruling affords the state more peremptory challenges than it is entitled to by law. Even if the ruling as to Dunn is assumed to be erroneous, *792 that assumption does not avail Johnson because the ruling did not have the effect of allowing the state more than 12 peremptory challenges. See and compare State v. Mills, 505 So.2d 933, 945 (La.App. 2d Cir. 1987), writ denied.

Dr. Lazarus

Dr. Lazarus, a college professor, knew the district attorney and his assistants and considered most of them to be "close friends." He said these friendships would not affect his ability to be an impartial juror. Dr. Lazarus said his serving on the jury would cause hardship for his students only if the trial lasted "for two weeks or more." Neither the state nor the defense expected the trial to last that long. The trial was concluded in three days.

Johnson challenged Dr. Lazarus for cause, arguing that his friendships with the district attorneys and the potential hardship on his students would prevent him from being impartial. The trial court overruled the challenge, finding no indication that either circumstance would affect Dr. Lazarus's ability to be impartial. Johnson objected to the ruling, preserving the issue for review under CCrP Art. 800 A.[1]

A prospective juror's friendship with one or more of the district attorneys disqualifies the juror from jury service only if it is reasonable to conclude that the friendship would influence the juror in arriving at a verdict. CCrP Art. 797(3); State v. Carthan, 377 So.2d 308 (La.1979).

The trial court has broad discretion in ruling on challenges for cause. We do not disturb the trial court's ruling unless a review of the voir dire as a whole shows that the court exercised its discretion arbitrarily or unreasonably, causing prejudice to the defendant. State v. Eastin, 419 So.2d 933 (La.1982); State v. Mitchell, 475 So.2d 61 (La.App. 2d Cir.1985).

We find the trial court did not abuse its discretion here. Dr. Lazarus said during voir dire that he had not yet formed an opinion as to Johnson's guilt or innocence and that there was no reason why he could not be impartial. He categorically denied that his friendship with the prosecuting attorneys would influence his verdict. Dr. Lazarus said his teaching duties would not affect his willingness to serve or his impartiality unless the trial lasted for two weeks or more, a contingency that was not expected to and did not occur. The voir dire examination of Dr. Lazarus, taken as a whole, does not show or suggest any factual basis for disbelieving Dr. Lazarus's assertions of impartiality. See and compare State v. Carthan, supra, and State v. Rexrode, 536 So.2d 671 (La.App. 3d Cir.1988).

Even if we were to find that Dr. Lazarus should have been dismissed for cause, Johnson has not shown that the trial court's ruling was prejudicial. Johnson did not challenge Dr. Lazarus peremptorily even though he had one peremptory challenge remaining before the jury panel was sworn. Johnson has not argued or shown that he accepted any other objectionable juror because he lacked or was "hoarding" peremptory challenges. On this record, we find that any assumed error in the trial court's ruling on Johnson's challenge for cause of Dr. Lazarus was harmless. See and compare State v. Vanderpool and State v. Burge, both cited supra in fn. 1.

*793 Shelton Dunn

The state and Johnson exercised peremptory challenges after choosing a pool of over 40 prospective jurors who were not challenged for cause. Neither the state nor the defendant peremptorily challenged Shelton Dunn. After 12 jurors were accepted by both sides, but before the jury panel was sworn, the state challenged Dunn peremptorily, over defendant's objection, which was overruled.

Defendant contends that the state's "backtracking" to dismiss Dunn caused "undue hardships on the defense because it then became necessary to select another person. That was not anticipated to the strategy of the trial."

A juror may be challenged peremptorily at any time before the jury panel is sworn under CCrP Art. 790, even if the juror has been temporarily accepted by the state and the defense during the exercise of peremptory challenges. Art. 795 B(1); State v. Watts, 579 So.2d 931 (La.1991). After Dunn was dismissed, the state and Johnson accepted the next person tendered from the pool of prospective jurors. No hardship or prejudice to Johnson was suggested, or was caused by, Shelton Dunn's dismissal on the state's peremptory challenge before the jury panel was sworn.

OBJECTION TO TANGIBLE EVIDENCE

Johnson contends the trial court should have sustained his objection to the admission in evidence of a sweatshirt and a knife found in his home during a consent search. He contends his consent was not freely and voluntarily given. Johnson did not file a motion to suppress the evidence before or during trial.

Johnson's failure to file a motion to suppress constitutes a waiver of his complaint that the search was unconstitutional, notwithstanding his objection to the evidence at trial. CCrP Art. 703 F; State v. Brogdon, 426 So.2d 158, 169-170 (La.1983); State v. Lewis, 468 So.2d 557 (La.1985).

OBJECTIONS TO INCULPATORY STATEMENTS

Johnson was arrested on the afternoon of January 9, 1990, nine days after the rape, after giving a tape-recorded statement to police that was inconsistent in some respects with other statements he had made to police earlier that day. Johnson did not file a motion to suppress, but objected at trial that some of the statements were not "voluntary." A hearing on the admissibility of the statements was held outside the jury's presence at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
595 So. 2d 789, 1992 WL 36464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-lactapp-1992.