State v. Richardson

529 So. 2d 1301, 1988 WL 74844
CourtLouisiana Court of Appeal
DecidedJuly 21, 1988
DocketCR87-381
StatusPublished
Cited by15 cases

This text of 529 So. 2d 1301 (State v. Richardson) 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. Richardson, 529 So. 2d 1301, 1988 WL 74844 (La. Ct. App. 1988).

Opinion

529 So.2d 1301 (1988)

STATE of Louisiana
v.
Albert "Bud" RICHARDSON.

No. CR87-381.

Court of Appeal of Louisiana, Third Circuit.

July 21, 1988.

*1302 J. Michael Small, Alexandria, for defendant-appellant.

Asa Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and LABORDE, JJ.

DOMENGEAUX, Judge.

Defendant, Albert "Bud" Richardson, was indicted by a grand jury on the charge of second degree murder; a violation of La.R.S. 14:30.1. The indictment also charged defendant with the use of a firearm to commit the offense, in violation of La.R.S. 14:95.2. The defendant's first trial ended in a mistrial, as the jury was unable to agree on a verdict. At a second trial, eleven out of twelve jurors found defendant guilty of second degree murder. The defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence with an additional two years, to be served consecutively, pursuant to La.R.S. 14:95.2. The defendant has appealed his conviction based on twenty-one assignments of error.

*1303 FACTS

On March 18, 1986, the defendant, Albert "Bud" Richardson, then fifty-four years old, entered the Slagle Grocery Store in Slagle, Louisiana, and, within minutes, shot the victim, Dwain Funderburk, fifty-three years old, in the forehead. Dwain Funderburk ultimately died from this gunshot wound on May 26, 1986.

The victim and the defendant were well acquainted; both grew up in the community; Funderburk was married to the defendant's niece and, at one time, resided in a house trailer on the defendant's property, less than one hundred yards from the defendant's residence. Their relationship appears to have deteriorated as of approximately three months before the shooting when the defendant accused Funderburk's stepson of stealing welding equipment from the defendant's residence and reported these allegations to the police. The accused stepson ultimately confessed to this crime.

Additionally, in late February, 1986, a verbal altercation arose between the defendant and Funderburk when the defendant attempted to establish a new property/fence line between the property of the defendant and Funderburk's mother-in-law. After "cussing each other out", both parties pulled out pocket knives and the defendant threatened Funderburk with a wooden club. As the defendant retreated to his vehicle parked nearby, Funderburk fired a shotgun in the direction of the defendant but did not hit him.

In the early afternoon of March 18, 1986, the defendant contacted the police officer in charge of the investigation of the defendant's stolen welding machine. The defendant told the officer of the altercation over the property line and informed the officer that "they are not going to run over me anymore". At 6:30 p.m. on the same afternoon, Funderburk and another stepson entered the Slagle store in order to purchase various hardware. Funderburk initially stopped at the end of the first aisle while the stepson continued on to the second aisle. Apparently, although it is not clear from the trial testimony, Funderburk was either just going over to the second aisle or had just entered the second aisle when the defendant walked in. As the defendant entered the store, he paused and then proceeded down the first aisle. The testimony of the defendant and the witnesses vary as to what happened next.

The victim's stepson who was on aisle two testified that he saw the defendant coming down aisle one and heard him say to Funderburk "I am tired of being treated like this, you son-of-a-bitch." Funderburk quickly grabbed a hoe from a barrel located at the end of aisle one and positioned himself in a defensive stance. He then forced the defendant to back up towards the store entrance by waiving the hoe in a left to right manner, saying repeatedly "Get back and leave me alone".

Two cashiers who observed the altercation confirmed that the victim said this as he maneuvered the defendant back to the front of the store. Although neither cashier observed the entire event, one cashier took notice of the participants after she heard a metal against metal noise. She looked up and saw Funderburk pulling a hoe from the barrel. The cashiers stated that when the defendant reached the door he produced a gun, stated that he was going to kill the victim, and shot the victim in the forehead from a distance of three feet. Funderburk died from this gunshot wound two months later.

The defendant argued that he acted in self-defense. He claimed that after the property line confrontation, he altered his lifestyle in order to avoid meeting Funderburk. The defendant claimed that he was unaware that Funderburk was present when he entered the store and that upon realizing that, Funderburk was present, he tried to avoid a confrontation by going down an aisle that the victim was not on. The defendant stated that, as he paused on aisle one, Funderburk yelled "Bud, you son-of-a-bitch" and immediately hit the defendant in the head with the handle of a *1304 hoe. The defendant claimed that Funderburk then raised the bladed end of the hoe as if to strike at the defendant again. The defendant stated that, he backed up towards the front of the store and fired because he believed he was in danger of being killed.

All eyewitnesses testified that they did not see Funderburk raise the hoe as if to strike the defendant. Three of the arresting officers testified that they saw no bruises or bumps on the defendant's head. However, the jailer and a visitor of the defendant testified that the defendant did have a lump or mark on his head as of the night of the shooting and on the following day.

The defendant has appealed his conviction and sentence based on twenty-one assignments of error.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the defendant asserts that the Trial Court erred in overruling the defendant's challenge for cause and thus, forced the defendant to use one of his peremptory challenges to discharge a juror. The defendant argues that it was unreasonable to conclude that the prospective juror, whose wife was the first cousin of the victim and whose brother-in-law had been a witness for the defense in the first trial and who was a potential witness in this trial, would be influenced by these relationships and would be unable to render an unbiased and impartial verdict.

La.C.Cr.P. art. 797 provides in pertinent part that:

The state or the defendant may challenge a juror for cause on the ground that: ...
(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; ... (emphasis added).

A challenge for cause should be granted, even if the juror declares an ability to remain impartial, when the juror's responses reveal facts from which bias, prejudice or impartiality may be reasonably implied. The Trial Judge is afforded wide discretion in ruling on a challenge for cause and the ruling should not be disturbed absent an abuse of discretion. State v. Jones, 474 So.2d 919 (La.1985); State v. Smith, 430 So.2d 31 (La.1983). A charge of juror bias may be removed if the prospective juror is rehabilitated, that is, if the Court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. State v. Gibson,

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Cite This Page — Counsel Stack

Bluebook (online)
529 So. 2d 1301, 1988 WL 74844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richardson-lactapp-1988.