State v. Jones

623 So. 2d 877, 1993 WL 254361
Louisiana Court of Appeal·Decided September 17, 1993·No. 92 KA 1662·Published·Cited by 6 cases

Opinion

623 So.2d 877 (1993)

STATE of Louisiana
v.
Eugene JONES.[1]

No. 92 KA 1662.

Court of Appeal of Louisiana, First Circuit.

July 2, 1993.
Opinion Denying Rehearing September 17, 1993.

*878 Doug Moreau, Dist. Atty., Office of the Dist. Atty. by Sue Bernie, Asst. Dist. Atty., Baton Rouge, for plaintiff/appellee.

Bryan Bush, Jr., Stephen B. Street, Jr., Street & Dugas, Baton Rouge, for defendant/appellant.

Before EDWARDS, SHORTESS and WHIPPLE, JJ.

SHORTESS, Judge.

Eugene Jones (defendant) was charged by grand jury indictment with one count of aggravated rape, LSA-R.S. 14:42, and one count of aggravated burglary, LSA-R.S. 14:60. He pled not guilty, was tried by jury, and was found guilty as charged. Defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence, with credit for time served, for the aggravated rape conviction. He was sentenced to 20 years on the aggravated burglary count. The sentences ran concurrently. Defendant has appealed with five assignments of error.[2]

Assignment of error number three alleges the trial court erred in denying defendant's challenges for cause of jury venire members David Simmons, number 114, Julia Chandler, number 18, and Linda Bishop, number 10, thereby forcing defendant to expend three of his allotted peremptory challenges during the jury selection process.

During jury selection, the trial court denied defendant's challenges for cause of Simmons, Chandler, and Bishop. Defendant was forced to use peremptory challenges on each of these venire members. Defendant's peremptory challenge sheet filed in the record indicates that during the course of jury selection, he exhausted all twelve of his peremptory challenges.[3]

A defendant in a criminal prosecution has a right to a trial by an impartial jury. U.S. Const. amend. VI; La. Const. art. I, § 16. In State v. Lewis, 391 So.2d 1156, 1158 (La.1980), the supreme court stated:

[T]he defendant is denied due process of law where circumstances affecting the juror exist which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance nice, clear and true between the state and the accused.
. . . . .
*879 The trial judge is vested with broad discretion in ruling on a challenge for cause, which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Drew, 360 So.2d 500 (La.1978). However, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause, although such association does not automatically disqualify a prospective juror.

See also State v. Sylvester, 400 So.2d 640, 643 (La.1981); State v. Domino, 444 So.2d 268, 270 (La.App. 1st Cir.1983).

The substance of defendant's complaint about prospective jurors Simmons and Chandler concerns their responses to questions indicating they would be prejudiced against defendant if he did not testify. While initial questioning certainly warranted defendant's concern, additional questioning by counsel, together with instructions by the court, should have laid this concern to rest because when the trial court finished its even-handed questioning of Simmons and Chandler, both unequivocally stated they accepted the court's stated principle that the burden of proof in all cases is upon the State and the defendant is not required to present anything and would not require defendant to testify. The trial court then denied defendant's challenges for cause of Simmons and Chandler. We find no error in the court's ruling as to these venire members, and defendant's assignment of error to that extent is denied.

Prospective juror Bishop had been employed by the Louisiana State Police for 12 years. She had been an administrative assistant to a colonel for two years at the time of trial, but in earlier years had worked in narcotics, detectives and intelligence, and typing and transcribing cases, some of which included rapes. After the court's general questioning, the State developed the following dialogue:

Q. Do you think that your work at the State Police would be a [hindrance] to being a fair and impartial juror?
A. It plays a bit part. I would do my best to be fair, but, of course, you know, when for nine years you've seen that side of it, this is a whole new side to me.
It's my first experience as a juror. It's quite an experience.
Q. Do you think that you could sit and listen to the testimony and the evidence as presented in this court and, if you were selected as a juror, just base your verdict on whatever you heard in the [courtroom]?
A. Yes, I'd do my best to do that.

Later, the defense developed this dialogue:

Q. Okay. You know, I was in law enforcement for about six or seven years. I've been with the D.A.'s office. I've been around a lot of police officers. I— If I were sitting in your shoes, I think— and I were asked how my tendency would be to go—I think you were asked that and I kind of got your drift. You're around people in law enforcement and you do get sort of a slant, don't you? It's hard not to.
A. That's the only side that you see.
Q. Sure. Sure. And you've got a lot of friends that are in law enforcement, make arrests every day, and you would like to think they're doing their job properly, that they're not out [there] busting people who don't deserve to be busted.
A. Right.
Q. So you do get a one-sided picture, don't you?
A. Right.
Q. Do you feel, then—like I say, I know where you're coming from because I've been there. You know, I go through this every day of my life. Do you feel that it may have an effect on you? That everything else being equal, if you were sitting on this jury, that you might tend to lean towards the State's favor because you know so many people that are in law enforcement and all?
A. In all honestly, I would say, yes, it could.
Q. Okay. And that's what I'm asking.
A. I mean, I think it would be foolish to say, oh, no.
Q. And not withstanding the fact that the judge would read you a bunch of instructions *880 and would tell you what the law is, you feel, even knowing the law, that just because of your situation, you do feel like you might lean towards the State's favor, wouldn't you?
A. Yes.

After this questioning, defense counsel challenged Bishop. Whereupon, the State obtained permission to ask these additional questions:

Q. Ms. Bishop, you indicated to Mr. Wilson that because of your profession you might have a tendency to lean towards the State. I think different people have—whether they're related to law enforcement may feel that totally irrespective of their profession.

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State v. Jones, 623 So. 2d 877, 1993 WL 254361 (La. Ct. App. 1993).

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