State v. Pena

788 So. 2d 472, 2000 La.App. 4 Cir. 0614, 2001 La. App. LEXIS 1164, 2001 WL 540977
CourtLouisiana Court of Appeal
DecidedMarch 14, 2001
DocketNo. 2000-KA-0614
StatusPublished

This text of 788 So. 2d 472 (State v. Pena) 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. Pena, 788 So. 2d 472, 2000 La.App. 4 Cir. 0614, 2001 La. App. LEXIS 1164, 2001 WL 540977 (La. Ct. App. 2001).

Opinions

|! LOVE, Judge.

STATEMENT OF CASE

On August 10, 1998, defendant, Juan Pena, was charged by bill of information with possession of cocaine in violation of La. R.S. 40:967. The defendant entered a plea of not guilty at his arraignment on August 13, 1998. A suppression and preliminary hearing was held on September 4, 1998. The trial court found probable cause and denied defendant’s motion to suppress evidence. After a jury trial on October 22, 1998, the defendant was found guilty as charged. On February 19, 1999, the defendant was sentenced to serve two and one half years at hard labor.

STATEMENT OF FACTS

On July 17, 1998, New Orleans Police Officers Ryan Maher and Chris Campiat were patrolling the French Quarter when they observed the defendant sleeping on the sidewalk at the intersection of St. Ann and Bourbon Streets. When the officers woke the defendant, they noticed that he smelled of alcohol. When the defendant stood up, he swayed from side to side. At that time, the officers decided to arrest the defendant for public intoxication. In a search incident to the arrest, the officers found three bags of marijuana and one bag of cocaine in the defendant’s rear pants pocket.

IsThe parties stipulated that the substances found on the defendant tested positive for marijuana and cocaine.

The defendant testified that he was in a lounge in the French Quarter when the officers approached him and asked him for his identification. When the officers saw that his name was Juan Pena, they asked if he was related to Richard Pena. The defendant told the officers he was visiting New Orleans and did not have any family in New Orleans. According to the defendant, the officers insisted that he was Richard Pena’s brother and involved in drugs. The defendant denied any possession of cocaine or any involvement in narcotics. The defendant acknowledged a pri- or conviction for possession of cocaine.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant contends that the trial court [475]*475erred when it denied his Batson challenge. The defendant entered a Batson challenge after the State and the defendant had exercised their peremptory challenges on the first panel of prospective jurors. The trial court found that the defendant had not made a prima facie case of discriminatory intent on the part of the prosecutor.

The defendant contends that the State improperly used its peremptory challenges to exclude African-Americans from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Equal protection prohibits the peremptory challenge of a prospective juror based on race. Batson, 476 U.S. at 86, 106 S.Ct. at 1717. It is the equal protection rights of the prospective juror, as well as the defendant, 13which are protected by Batson and its progeny. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 118 L.Ed.2d 411 (1991).

In Batson, the United States Supreme Court adopted a three-part analysis to determine whether a prosecutor exercised peremptory challenges in a discriminatory fashion. First, the defendant must demonstrate a prima facie case of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Second, once the defendant establishes a prima facie case of discrimination, the burden shifts to the prosecution to give race-neutral reasons for the peremptory challenges. Id., 476 U.S. at 97, 106 S.Ct. at 1723. Third, after the prosecutor has presented his reasons, the trial court must assess the weight and credibility of the explanation to determine whether the defendant has met his burden of proving purposeful discrimination. Id., 476 U.S. at 98, 106 S.Ct. at 1724 n. 1.

The first step in the Batson analysis places the burden of proof on the defendant to show that the prosecutor exercised peremptory challenges to remove members of a particular race from the jury venire. State v. Collier, 553 So.2d 815, 818 (La.1989). For a Batson challenge to succeed, it is not enough that the defendant show a racially discriminatory result; rather, that result must be traced to a racially discriminatory purpose. State v. Green, 94-0887, p. 23 (La.5/22/95), 655 So.2d 272, 287 (quoting Batson, 476 U.S. at 94, 106 S.Ct. at 1721 (quoting Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976))). The sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory challenges. State v. Green, supra, at p. 23, 655 So.2d at 287.

If the defendant fails to make out a prima facie case of racial discrimination, the Batson challenge fails; and, the State does not have to provide race-neutral reasons for the exercise of its peremptory challenges. \Jd. at p. 24, 655 So.2d at 287-88. To prove his case, the defendant may offer any relevant facts such as the prosecutor’s pattern of strikes against members of a suspect class, statements or actions of the prosecutor that support an inference of racial discrimination, the composition of the venire and of the jury finally impaneled, and any other disparate impact upon the suspect class that is alleged to be the victim of purposeful discrimination. Id.

At the beginning of trial, the defendant asserted a Batson challenge arguing that the State used its peremptory challenges to exclude African-Americans from the jury. While the defendant argued that the State used all of its peremptory challenges to dismiss African-Americans from the jury, he did not produce any specific evidence in support of his allegation. He did not produce any evidence concerning [476]*476the racial composition of the jury venire. In fact, the record reveals that the State used only three of its six peremptory strikes to excuse African-Americans from the jury venire. The defendant, however, used all six of his peremptory challenges to remove African-American jurors who had been accepted by the State. The trial court found that the defendant failed to make a prima facie case of discrimination and denied defendant’s objection.

There is nothing in the record to support the defendant’s argument. The trial court did not err when it denied the defendant’s Batson challenge.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant further argues that the trial court erred when it failed to sustain his objection to improper and prejudicial remarks made by the State during closing argument. The defendant complains of the following remarks made by the prosecutor during closing argument:

|fiWhat’s he doing in New Orleans? He doesn’t even speak English. He’s traveling all over the United States. He’s got a conviction in Detroit for the same thing. Y’all can consider all of that. Y’all can say, “What do you think he does for a living?”
* * ifc * sjs
It’s very simple.

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Related

Washington v. Davis
426 U.S. 229 (Supreme Court, 1976)
Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Powers v. Ohio
499 U.S. 400 (Supreme Court, 1991)
State v. Martin
539 So. 2d 1235 (Supreme Court of Louisiana, 1989)
State v. Taylor
669 So. 2d 364 (Supreme Court of Louisiana, 1996)
State v. Collier
553 So. 2d 815 (Supreme Court of Louisiana, 1989)
State v. Moore
432 So. 2d 209 (Supreme Court of Louisiana, 1983)
State v. Jarman
445 So. 2d 1184 (Supreme Court of Louisiana, 1984)
State v. Green
655 So. 2d 272 (Supreme Court of Louisiana, 1995)
State v. Langley
711 So. 2d 651 (Supreme Court of Louisiana, 1998)
Hydroculture, Inc. v. Coopers
464 U.S. 986 (Supreme Court, 1983)

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Bluebook (online)
788 So. 2d 472, 2000 La.App. 4 Cir. 0614, 2001 La. App. LEXIS 1164, 2001 WL 540977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pena-lactapp-2001.