State v. Lee

637 So. 2d 102, 1994 WL 201202
Supreme Court of Louisiana·Decided May 23, 1994·No. 93-KO-2810·Published·Cited by 64 cases

Opinion

637 So.2d 102 (1994)

STATE of Louisiana
v.
Nathaniel LEE.

No. 93-KO-2810.

Supreme Court of Louisiana.

May 23, 1994.

*103 William R. Collins, New Iberia, for applicant.

Nathaniel Lee, pro se.

Richard P. Ieyoub, Atty. Gen., New Orleans, Bernard E. Boudreaux, Jr., Dist. Atty., John P. Haney, Ralph K. Lee, Glenda Huddleston, New Iberia, for respondent.

KIMBALL, Justice.[*]

On the night of November 27, 1990, Officer Troy Gant of the St. Mary Sheriff's Department, Narcotics Division, was working "on loan" as an undercover agent for the New Iberia Police Department, making narcotics purchases from street level dealers. While wearing a body transmitter linked to a recording device in his vehicle, Officer Gant was introduced to a man named "Casper" by a New Iberia Police Department confidential informant. Officer Gant made a purchase of "crack" cocaine from "Casper." After purchasing the drugs and leaving the area, Officer Gant contacted the New Iberia Police *104 Department officers with whom he was working and informed them he had just made drug a purchase from a man named "Casper." Officer Gant also gave the New Iberia Police Department officers a physical description of "Casper." Officer Gant then returned to the area and made another purchase from a different drug dealer. In the meantime, Officer Landry of the New Iberia Police Department, recognizing the name of the seller, drove through the area where the sale had taken place and confirmed that the person he knew as "Casper," Nathaniel Lee, was in the same area as the reported drug transaction. Later that night, when Officer Gant returned to the New Iberia Police Department, Officer Landry placed a photograph of Nathaniel Lee, defendant herein, in front of Officer Gant and asked "[d]o you know that dude?" Officer Gant informed Officer Landry that the photograph was that of "Casper," the dealer from whom he had purchased cocaine earlier in the evening. On April 12, 1991, Nathaniel Lee was arrested for distribution of cocaine.

Defendant was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967. After trial by jury, defendant was found guilty as charged. Because defendant was a fifth felony offender, he was subsequently sentenced to the maximum time provided for in the sentencing guidelines, 240 months, or 20 years, at hard labor. Defendant's conviction and sentence were affirmed by the third circuit court of appeal.[1] We granted writs[2] to consider defendant's assignment of error that his right to trial by a fair and impartial jury was violated when the trial court refused to grant defendant's challenges for cause of certain prospective jurors, and now affirm.

Defendant argues that his constitutional right to a fair trial by an impartial jury was violated when the trial court refused to grant defense counsel's challenges for cause of prospective jurors who had, on the day before defendant's trial, served as jurors in a similar type of case involving a different defendant which had also been prosecuted by the same Assistant District Attorney. Defendant alleges that as a result of the trial court's rulings, he was forced to unnecessarily use many of his peremptory challenges to remove these prospective jurors and, further, that after he had exhausted his allotted number of peremptory challenges, three[3] of the jurors who had served on the previous day's jury were seated on his jury. Defendant additionally argues that the Assistant District Attorney's questioning during voir dire of the members of the jury venire demonstrated the prosecutor had reached certain "understandings" with those jurors who had served on the prior jury during the voir dire for that case, "understandings" to which defendant herein was not privy.

On Monday, May 11, 1992, a petit jury venire was selected from which jurors would be called for petit jury duty for criminal trials scheduled to begin during that week. From that venire, a twelve person jury, along with two alternates, was selected to serve in the trial of another, unrelated narcotics sale case against a different defendant. That jury returned a guilty verdict against the defendant involved therein. After trial, the names of the members of that jury were returned to the petit jury venire for possible service again as jurors.[4]

*105 On May 13, 1992, prospective jurors were called from the same petit jury venire, which now included the names of those jurors who had served on the petit jury on the previous day, for potential service on the jury for the trial of Nathaniel Lee. Ten of the first twenty-five persons called had served on the jury in the prior trial, either as jurors or, in one instance, as an alternate. After the first panel of potential jurors had been called for voir dire, the trial judge denied defense counsel's blanket challenge for cause of all members of the jury venire who had served on the prior jury.[5] Defendant then used nine of his allotted twelve peremptory strikes to remove those jurors who had served on the prior jury.[6] Defendant exhausted his remaining peremptory challenges on members of the jury venire who had no prior jury service. The remainder of the jury was then selected, with three of the jurors seated having served on the jury which had heard the other, unrelated case.[7] Because defendant exhausted all of his peremptory challenges before completion of the jury panel, he is entitled to complain on appeal of the trial court's rulings refusing to maintain his challenges for cause. State v. Robertson, 630 So.2d 1278, 1280-81. (La.1994).

During voir dire, the prosecutor made reference to the voir dire questions he had asked the day before of those jurors who had served on the prior jury, and to the answers which they had given him at that voir dire. Defendant argues these references to questions and answers to which neither defendant nor defense counsel was privy, in combination with the potential jurors' prior service, give rise to an "implied bias" on the part of those jurors who had served on the prior jury. As such, defendant argues the trial court abused its discretion in refusing to grant his challenges for cause of those jurors, as they were "not impartial," as required by La.C.Cr.P. art. 797(2).[8] Specifically, defendant objects to the following statements made by the prosecutor, and the following exchanges which took place between the prosecutor and those jurors who had served on the previous day's jury:

(1) "As I understand it from what you've said before ..."
(2) "I'm going to be a little bit shorter today because I've talked to a number of you before. So I won't go over most of those questions...."
(3) "Everybody pretty much heard all the elements of the crime that we discussed in yesterday's case, and basically it's the *106 same elements in this particular crime with a different date, and the fact that there's only one count here and not two counts. As I indicated yesterday, we have to prove that on or about November the 27th of 1990, something occurred, element No. 1. No. 2, that it occurred in Iberia Parish. No. 3, that defendant knowingly or intentionally did some act. As you heard with my example has something put in their coat pocket and they don't know anything about it, and the police happens to stop them and find something in their pocket, then we

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State v. Lee, 637 So. 2d 102, 1994 WL 201202 (La. 1994).

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