State v. Lutcher

652 So. 2d 545, 1995 WL 111997
CourtLouisiana Court of Appeal
DecidedMarch 3, 1995
Docket94 KA 0291
StatusPublished
Cited by4 cases

This text of 652 So. 2d 545 (State v. Lutcher) 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. Lutcher, 652 So. 2d 545, 1995 WL 111997 (La. Ct. App. 1995).

Opinion

652 So.2d 545 (1995)

STATE of Louisiana,
v.
Donald Earl LUTCHER.

No. 94 KA 0291.

Court of Appeal of Louisiana, First Circuit.

March 3, 1995.

Stephen P. Callahan, Asst. Dist. Atty., Houma, for State of Louisiana.

William H. Dunckelman, Houma, for Donald Earl Lutcher.

Before LOTTINGER, C.J., SHORTESS and CARTER, JJ.

LOTTINGER, Chief Judge.

The defendant, Donald Earl Lutcher, was charged by grand jury indictment with second degree murder. La.R.S. 14:30.1. He pleaded not guilty and, after trial by jury, was found guilty as charged. The defendant received the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served. He has appealed, alleging that the trial court erred in:

*546 1. denying the defendant's motion to suppress confessions and/or inculpatory statements;
2. denying the defendant's motion to suppress physical evidence;
3. denying the defendant's motion to suppress prejudicial evidence;
4. denying the defendant's motion to suppress evidence of other acts or crimes;
5. failing to grant the defendant's challenges for cause;
6. interposing questions to prospective jurors during the defendant's voir dire examination in a tone and manner which could and did prevent said prospective jurors from later responding honestly and truthfully to defense counsel's questions;
7. granting a recess during the trial which in fact was a continuance;
8. transferring the defendant's trial from one division of court and judge to another division of court and judge without the defendant's consent;
9. transferring the defendant's trial to a division of court chosen by the district attorney;
10. failing to reallot the case in accordance with law;
11. denying the defendant's right to a speedy trial;
12. failing to grant a mistrial on its own motion;
13. not ordering the trial to proceed and allowing, if necessary, the substitution of another prosecuting attorney;
14. allowing hearsay testimony by Ms. Betty Ruffin;
15. allowing hearsay testimony by Ms. Loretta Williams;
16. allowing the introduction into evidence of S-2 and S-3;
17. allowing testimony of another crime committed by the defendant to be introduced into evidence;
18. allowing hearsay testimony by Randy Trosclair;
19. accepting Dr. Feaster Fitzpatrick as an expert in the field of pathology; and
20. allowing a restraining order issued in December of 1991, and testimony thereon, to be introduced into evidence.

Because we conclude that assignment of error number five has merit, the defendant's conviction and sentence must be reversed. Accordingly, we pretermit consideration of the remaining assignments of error.

At approximately 11:00 p.m. on April 19, 1992, the defendant killed his estranged wife, Sandra Trosclair Lutcher, outside her trailer on North Bayou Black Drive in Gibson, Louisiana. The defendant stabbed the victim over twenty times with a knife. The victim's brother, John Trosclair, III, witnessed the stabbing before leaving to summon help. The victim was pronounced dead at the scene. Shortly thereafter, the defendant was apprehended, and he confessed to the murder.

ASSIGNMENT OF ERROR NUMBER FIVE

In this assignment of error, the defendant contends that the trial court erred in denying his challenges for cause of prospective jurors Jacqueline Brunet, Stephanie Livas, and Johnelle Johnson. Without further discussion, we find no error in the trial court's rulings denying the defendant's challenges for cause of prospective jurors Brunet and Johnson. However, because we find that the trial court erred in denying the defendant's challenge for cause of prospective juror Stephanie Livas, we must reverse the defendant's conviction and sentence and remand this matter for a new trial.

Initially, we note that the record shows that defendant exhausted his peremptory challenges.[1] However, even if the defendant *547 had not exhausted his peremptory challenges, he would not have been precluded from complaining of the trial court rulings refusing to sustain his challenges for cause. See State v. Burge, 498 So.2d 196, 203 (La. App. 1st Cir.1986) (wherein we noted that Act 181, § 1, of 1983 amended La.Code Crim.P. art. 800 to remove the requirement that a defendant exhaust all his peremptory challenges before he can complain of a ruling denying a challenge for cause).

La.Code Crim.P. art. 797 provides, in pertinent part, as follows:

The state or the defendant may challenge a juror for cause on the ground that:
. . . .
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of 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;

In brief, the defendant quotes a portion of the voir dire examination and the responses given by Ms. Livas. The defendant asserts that, based on the answers given by Ms. Livas, it was obvious that she should have been excluded because of her partiality. He argues that the court's refusal to grant his challenge for cause of this prospective juror constituted reversible error.

We now focus our attention on the voir dire responses given by Ms. Livas. During defense counsel's examination of Ms. Livas, the following colloquy occurred:

MS. SMITKO:
Ms. Johnson does anyone else know the family of the victim in any way, that they're aware of?
JURORS INDICATES (SIC) YES
MS. SMITKO QUESTIONS MS. LIVAS:
Q Yes, ma'am.
A Stephanie Livas. I went to school with the sister and the brother.
Q Of Ms. Lutcher?
A Uh-huh.
Q Okay. Did you go to school with John Trosclair?
A Junior? Yes.
Q All right. Certainly not Senior. Ms. Livas, is that going to make it difficult for you to sit on this jury and decide Mr. Lutcher's fate fairly and impartially?
A No, but I don't think I would be, I think I would be more objective, I mean I don't think I would, I would want to sit on the jury.
Q You mean you think you'd have a hard time being objective?
A Uh-huh.
Q So you might not be—
A I'd be more on the prejudice side because I know them.
Q Right. And prejudice (sic) against Mr. Lutcher.
A Uh-huh.
Q And if his family [victim's family] testifies, family you know that you went to school with, would you be more likely to believe them because you know them, you went to with (sic) him school and you been (sic) knowing them for years?
A Yeah.
Q Okay. Thank you, Miss Livas. I appreciate your honesty.

Ms.

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Related

State v. Livas
808 So. 2d 415 (Louisiana Court of Appeal, 2001)
State v. McKnight
739 So. 2d 343 (Louisiana Court of Appeal, 1999)
State v. Lutcher
700 So. 2d 961 (Louisiana Court of Appeal, 1997)
State v. Galliano
655 So. 2d 538 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
652 So. 2d 545, 1995 WL 111997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lutcher-lactapp-1995.