State v. McLean

525 So. 2d 1251, 1988 WL 49480
CourtLouisiana Court of Appeal
DecidedMay 17, 1988
Docket87 KA 1469
StatusPublished
Cited by70 cases

This text of 525 So. 2d 1251 (State v. McLean) 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. McLean, 525 So. 2d 1251, 1988 WL 49480 (La. Ct. App. 1988).

Opinion

525 So.2d 1251 (1988)

STATE of Louisiana
v.
Robin McLEAN, and One, Rita Denise Canty.

No. 87 KA 1469.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.

*1252 Mark Rhodes, Asst. Dist. Atty., Houma, for plaintiff and appellee—State of La.

Anthony Champagne, Indigent Defendant, Houma, for defendants and appellants —Robin Ann McLean and Rita D. Canty.

Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

SAVOIE, Judge.

Robin Ann McLean (a/k/a Robin Ann Chambers) and Rita Denise Canty were jointly charged by bill of information with theft of an amount in excess of one hundred dollars, in violation of La.R.S. 14:67.[1] Both women pled not guilty and, *1253 after being jointly tried by a jury, were found guilty as charged. Each defendant received a sentence of two years imprisonment at hard labor. Both defendants have appealed their convictions and sentences, alleging the following assignments of error:

1. The trial court erred in denying defendants' challenge for cause of prospective juror, Alberta Bergeron.
2. The trial court erred in denying defendants' challenge for cause of prospective juror, Betty Dupre.
3. The trial court erred in denying defendants' challenge for cause of prospective juror, Alberta Bergeron.
4. Abandoned in brief.
5. The jury's verdict was contrary to the law and evidence.
6. The sentences imposed were excessive and amounted to cruel and unusual punishment.

FACTS

On the evening of July 17, 1986, at approximately 5:30 p.m., Trent Picou and Jeffrey Bryant were working as gas station attendants at Harry's Exxon on Main Street in Houma, Louisiana. Trent was in the restroom and Jeffrey was in the station office when a vehicle drove up to the full service gasoline pumps. Herbert Mitchell was the driver. Haywood Matthews, Richard Livas and defendants herein were passengers. Defendants and Mitchell entered the office. Mitchell requested the key to the restroom and walked out, and defendants requested change. Haywood Matthews went into the bay area of the service station to look at a motorcycle.

Jeffrey opened the cash register and gave the defendants two dimes and a nickel in exchange for their quarter. The defendants again requested change, this time for a dime, whereupon Jeffrey again opened the register and gave them two nickels. Defendants began to fidget with the candy machine, and Jeffrey walked out to the pumps in order to put the requested $2.00 worth of gasoline in Mitchell's vehicle. While pumping gasoline, Jeffrey looked toward the office window and saw defendants jump back and away from the cash register and feign interest in the candy machine.

Trent Picou exited the restroom and asked Jeffrey whether or not he needed assistance, and Jeffrey replied he did not as he was pumping a mere $2.00 worth of gasoline into the car.

Defendants, Mitchell, Matthews and Livas got into the car, and one of them threw $2.00 cash out of the car window as the vehicle drove away. Immediately thereafter, Jeffrey and Trent noticed that the cash register had been emptied of all cash it had previously contained, and they called in a report to the Sheriff's Office. Trent testified that the cash register contained approximately $400.00 immediately prior to the arrival of the Mitchell vehicle and its occupants.

Mitchell testified on behalf of the state. He stated that the defendants offered him $50.00 to "speed up" as they were leaving the Exxon station. He stated that he did not know whether or not the defendants had taken the money out of the register but that he saw them "around the register" and they offered him $50.00 soon thereafter.

Detective Randy Pijor responded to a "BOLO"[2] and apprehended Mitchell, defendants and the other two occupants of the vehicle. The five were transported to the Sheriff's Office by Deputies Huey Usie and Mike Dean. Defendants were subsequently positively identified by Trent Picou and Jeffrey Bryant. Detective Pijor testified that Mitchell stated to him that Mitchell had told the defendants not to take the money and that "I told you we'd get into trouble."

Each defendant was individually, and unaccompanied, allowed to use the restroom while a uniformed law enforcement officer stood guard outside the restroom door. Defendants were later searched, but no money was found on their persons.

*1254 Harry Robinson, the owner of the Exxon station, testified that the two attendants were valued and trusted employees. He stated unequivocally that the two had never stolen money from the register during their employment at the station.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND THREE

By these assignments of error, defendants contend that the trial court erred in denying their challenges for cause of prospective jurors, Alberta Bergeron and Betty Dupre.

Prior to La. Acts 1983, No. 181, in order to prove reversible error, a defendant needed to show two things: 1) that the trial court erred in refusing to sustain a challenge for cause made by him, and 2) that he exhausted all of his peremptory challenges. State v. Robertson, 518 So.2d 579 (La.App. 1st Cir.1987). However, Act 181, § 1, of the 1983 Regular Session amended La.C.Cr.P. art. 800 by removing the requirement that a defendant exhaust all of his peremptory challenges before complaining of a ruling refusing to sustain a challenge for cause. In the instant case, although defendants did not exhaust all of their peremptory challenges, such a fact need not be shown in order to obtain review of the trial court's ruling on challenges for cause. State v. Robertson, supra.

A trial court is vested with great discretion in ruling on challenges for cause, and that ruling will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Allen, 380 So.2d 28, 30 (La.1980); State v. Harris, 518 So.2d 590, 595 (La.App. 1st Cir.1987); State v. Burge, 498 So.2d 196, 204 (La.App. 1st Cir.1986). Nonetheless, 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. State v. Robertson, supra.

La.C.Cr.P. art. 797 provides that a juror may be excused for cause on either of the following pertinent grounds:

(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;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
* * * * * *

In brief, defendants contend the trial court should have granted the challenges for cause in regard to Alberta Bergeron because she had a relative working in the Terrebonne Parish District Attorney's Office, and had been the victim of a theft. On voir dire examination, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
525 So. 2d 1251, 1988 WL 49480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mclean-lactapp-1988.