State v. Lindsey

928 So. 2d 541, 2005 La. App. LEXIS 2640, 2005 WL 3543637
CourtLouisiana Court of Appeal
DecidedDecember 29, 2005
DocketNo. 2005 KA 0465
StatusPublished
Cited by2 cases

This text of 928 So. 2d 541 (State v. Lindsey) 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. Lindsey, 928 So. 2d 541, 2005 La. App. LEXIS 2640, 2005 WL 3543637 (La. Ct. App. 2005).

Opinions

WELCH, J.

laThe defendant, Calvin Lindsey, was charged by bill of information with distribution of a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967(A)(1). The defendant pled not guilty. Following a jury trial, the defendant was found guilty as charged. He was sentenced to nine years imprisonment at hard labor, with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which the trial court denied. The defendant now appeals, designating the following two assignments of error: (1) The trial court erred in denying the defendant’s challenge for cause of a prospective juror; (2) The trial court erred by failing to sustain the defendant’s hearsay objection. Finding merit in defendant’s first assignment of error, we reverse the conviction, vacate the sentence and remand for a new trial.

FACTS

On March 11, 2003, several police officers from the L.E.A.D. Task Force of the Plaquemine City Police Department, assisted by police officers from the Vermillion Parish Sheriffs Office, were conducting an undercover narcotics operation around the Plaquemine area in Iberville Parish. The undercover agents drove around the area purchasing narcotics from street-level narcotics dealers.

The defendant, who had one leg and was in a wheelchair, approached one of the undercover vehicles, which was equipped with a wireless transmitter and a video recorder, and asked the officers what they needed. The officer driving the vehicle told the defendant he needed a “forty” [543]*543(slang for $40.00 worth of crack cocaine). The defendant told the officer to “make a block” and meet him on the other side of the tracks. When they met at this second location, the defendant sold the officer on the passenger side two rocks of .19 grams of crack cocaine for forty dollars. The transaction was videotaped.

| ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant avers the trial court erred in denying his challenge for cause of Bonny Lewin, a prospective juror. Specifically, the defendant contends that Ms. Lewin’s comments during voir dire that she would credit the testimony of police officers over the testimony of other witnesses indicated she could not be a fair and impartial juror.

The defense counsel tried to have Ms. Lewin removed for cause, but the trial court denied the challenge because it found that it had rehabilitated her. However, Ms. Lewin was the fourth peremptory strike used by the defense counsel; thus, Ms. Lewin never served on the jury for the defendant’s trial.

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors’ qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La.App. 1st Cir.), writ denied, 468 So.2d 570 (La.1985). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La.App. 1st Cir.), writ denied, 564 So.2d 318 (La.1990). A refusal by the trial court to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, after further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Copeland, 530 So.2d 526, 534 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such | ¿rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. Martin, 558 So.2d at 658.

A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. La.C.Cr.P. art. 800(A). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been reversible error warranting reversal of the conviction, a defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280-1281. Defense counsel exhausted all of his peremptory challenges. Therefore, we need only determine the issue of whether the trial judge erred in denying the defendant’s challenge for cause regarding prospective juror Ms. Lewin.

Pursuant to La.C.Cr.P. art. 797(2), a prospective juror may be challenged for cause on the ground that:

The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence [544]*544of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence[.]

The initial relevant voir dire of Ms. Lew-in was conducted by the court:

Q. Do you have any friends or relatives employed by the District Attorney’s office or any law enforcement agency of any kind?
A. Well, I have friends on the Baton Rouge City Police force.
Q. Okay. The fact that you have friends that work in law enforcement, would that in any manner affect your ability to sit here and give both State and the Defendant a fair trial?
A. No, sir.
Q. Will you be able to evaluate the credibility of law enforcement officers just as much as you will evaluate the credibility of any other witness?
| bA. Yes, sir.

Later during voir dire, when the defense counsel questioned Ms. Lewin further, her attitude regarding the credibility of police officers became more fully realized:

Q. You don’t have a problem with sitting in judgement (sic) of anybody?
A. No.
Q. Making a determination? Okay. Police officers’ testimony, you heard me ask the questions and you can see -
A. I tend to give them a little more credibility.
Q. You do? Why?
A. I don’t know. I just feel like they’re trained, like lawyers, I think they tend to tell the truth more than some of these laymen.
Q. Lawyers tell the truth more?
A. I know there are some jokes out there, but in my opinion. I’m just being honest with you, I tend to give a little more credibility.
Q. Okay. So you would give more credibility to a police officer’s testimony than you would someone else?
A.

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Related

State v. Lindsey
964 So. 2d 1032 (Louisiana Court of Appeal, 2007)
State v. Gustave
934 So. 2d 784 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
928 So. 2d 541, 2005 La. App. LEXIS 2640, 2005 WL 3543637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lindsey-lactapp-2005.