State v. Pendelton

783 So. 2d 459, 2001 WL 370237
CourtLouisiana Court of Appeal
DecidedMarch 14, 2001
Docket00-KA-1211
StatusPublished
Cited by27 cases

This text of 783 So. 2d 459 (State v. Pendelton) 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. Pendelton, 783 So. 2d 459, 2001 WL 370237 (La. Ct. App. 2001).

Opinion

783 So.2d 459 (2001)

STATE of Louisiana
v.
James PENDELTON.

No. 00-KA-1211.

Court of Appeal of Louisiana, Fifth Circuit.

March 14, 2001.

*460 Paul D. Connick, District Attorney, Rebecca J. Becker, Terry Boudreaux, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, Counsel for state.

Gwendolyn Kay Brown, Baton Rouge, Counsel for defendant-appellant.

Court composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and JAMES C. GULOTTA, Pro Tempore.

McMANUS, J.

The defendant was charged with and convicted of first-degree robbery. The trial court sentenced the defendant to 35 years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. For the reasons that *461 follow, both the conviction and the sentence are affirmed.

STATEMENT OF THE CASE

The defendant, James Pendelton, was charged with first-degree robbery in violation of LSA-R.S. 14:64.1, to which he pled not guilty at arraignment. After trial on November 18, 1998, a 12-person jury returned a verdict of guilty as charged. On November 24, 1998, the trial judge sentenced the defendant to serve 35 years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

FACTS

At trial, the evidence established that at approximately 9:00 a.m. on June 17, 1997, Darlene Cusanza, the executive director of Crime Stoppers, was robbed by a black man outside of the Hibernia National Bank in Harahan. Ms. Cusanza testified that she noticed a black man leaning against the side of the building when she drove into the parking lot that morning. Shortly after she parked and got out of her car, the man approached Ms. Cusanza and pushed her against her car. He shoved a hard object into Ms. Cusanza's side and said, "Give me the money." According to Ms. Cusanza, the object felt like a gun. Ms. Cusanza replied, "Here it is," and handed over her purse. The man ordered her to leave and she walked inside the bank. Once inside, she screamed that she had been robbed by a man with a gun and asked for someone to call the police.

Detective George Giron and Lieutenant Kevin Smith of the Jefferson Parish Sheriff's Office investigated the robbery. Detective Giron responded to the scene and interviewed Ms. Cusanza. Detective Giron testified that he also interviewed people who worked in office buildings near the Hibernia National Bank. At trial, these individuals testified that they had seen a black man whom they did not recognize in the parking lot that morning.

The defendant was ultimately arrested in Georgia under the name of Donald Brown. Lieutenant Smith and Detective Giron traveled to Georgia to secure the defendant's return to Louisiana. Upon returning to Louisiana, the police conducted a physical line-up. At the physical line-up and again at trial, Ms. Cusanza positively identified the defendant as the person who had robbed her on June 17, 1997.

ASSIGNMENT OF ERROR NUMBER ONE

As his first assignment of error, the defendant argues that the trial court erred in failing to remove an elderly juror after another juror informed the court that the elderly juror was apparently suffering from Alzheimer's Disease. By this assignment, the defendant claims the trial court abused its discretion in refusing to remove a 76-year old juror on the basis that another juror, who was an attorney, expressed concerns during trial regarding the elderly juror's memory. According to the defendant, the trial judge should have dismissed the elderly juror and replaced him with an alternate juror.

On the second day of trial, the trial judge held a conference in chambers. During the conference, which was transcribed and is part of the record, the trial judge related that the court's bailiff told him that Juror Bapps, who was an attorney, indicated there might be some "trouble" with another juror, Mr. Benefield. The trial judge stated that Mr. Bapps' specific concern was that Mr. Benefield was exhibiting the signs of Alzheimer's disease. In Mr. Bapps' opinion, Mr. Benefield seemed to suffer from short-term memory loss. With the consent of the prosecution and the defense, the trial *462 judge questioned Mr. Benefield regarding these concerns. The trial judge asked Mr. Benefield if he felt comfortable proceeding with the trial, to which Mr. Benefield responded affirmatively. Mr. Benefield was also questioned as to whether there was anything that prevented him from giving the defendant a fair trial, to which he replied "no ."

Thereafter, the defense requested the trial judge remove Mr. Benefield from the jury. Defense counsel argued that Mr. Bapps' opinion regarding Mr. Benefield's memory should be given credence because Mr. Bapps was an attorney, and because Mr. Bapps said he had known people with Alzheimer's disease. The prosecutor responded that there was no indication from the colloquy between Mr. Benefield and the trial judge that Mr. Benefield had any sort of memory or mental problems. The trial judge denied the defense's motion.

After the first witness is sworn, Louisiana Code of Criminal Procedure article 789 provides for the replacement of a juror with an alternate juror in the event a juror becomes unable to serve or is disqualified. State v. Derouselle, 99-3283 (La.4/28/00), 761 So.2d 1269, 1270 (per curiam); State v. Fuller, 454 So.2d 119, 123 (La.1984). Article 789 applies in this case because the trial was already underway when the issue regarding Juror Benefield was raised.

In State v. Ducksworth, 496 So.2d 624 (La.App. 1 Cir.1986), the First Circuit explained that a juror may not be discharged unless there is a legal cause such as death, illness or any other cause which renders a juror unable or disqualified to perform. In that case, the court held that the trial judge did not abuse his discretion in denying the defendant's motion to replace a juror with an alternate. After the defense had rested in Ducksworth, defense counsel requested that the trial judge interview a juror in chambers to determine whether she had lied during voir dire when the juror denied knowing the victim or his family. This request was based on defense counsel's observing the juror's mother sitting in the courtroom near the victim's aunt.

During the interview, the juror told the trial judge that she was not acquainted with any member of the victim's family and was able to perform her duties as a juror fairly and impartially. Based on these findings, the trial court refused to replace the juror with an alternate juror. Id. at 635. The Ducksworth court concluded the trial judge properly denied the defendant's motion, since there was no "legal cause" to support the defendant's request.

On the contrary, in State v. Derouselle, 97-2590 (La.App. 4 Cir. 10/20/99), 745 So.2d 767, the Louisiana Supreme Court concluded that the trial judge had properly removed a juror whom the judge concluded had failed to reveal a potential source of bias during voir dire examination. In that case, the record revealed that on the second morning of trial the trial judge stated that he had been told by a deputy that one of the jurors was crying because her "husband's" parole had been revoked. At that point, the juror's candor during voir dire was called into question, since the prosecutor recollected that he had asked every juror if a family member or close friend had ever been convicted of a crime and he did not recall that the juror responded affirmatively.

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Cite This Page — Counsel Stack

Bluebook (online)
783 So. 2d 459, 2001 WL 370237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pendelton-lactapp-2001.