State v. Serigny

481 So. 2d 659
CourtLouisiana Court of Appeal
DecidedDecember 26, 1985
Docket85 KA 0388
StatusPublished
Cited by11 cases

This text of 481 So. 2d 659 (State v. Serigny) 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. Serigny, 481 So. 2d 659 (La. Ct. App. 1985).

Opinion

481 So.2d 659 (1985)

STATE of Louisiana
v.
Francis SERIGNY.

No. 85 KA 0388.

Court of Appeal of Louisiana, First Circuit.

December 26, 1985.
Writ Denied March 21, 1986.

*660 Louis Thad Toups, Asst. Dist. Atty., Thibodaux, for plaintiff-appellee State of La.

Clyde C. Caillouet, Jr., Thibodaux, for defendant-appellant Francis Serigny.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

SHORTESS, Judge.

Francis J. Serigny (defendant) was charged by bill of information with the attempted second degree murder of Jack Jambon in violation of LSA-R.S. 14:27 and 14:30.1. He pled not guilty and, after trial by jury, was convicted as charged. He was sentenced to fifty years at hard labor. The district attorney later filed a multiple offender bill and a hearing was held, at which he was found to be a multiple offender. Defendant was resentenced as a multiple offender, which made him ineligible for diminution of sentence based on good behavior. (LSA-R.S. 15:571.3).

Defendant has appealed and urges eleven assignments of error. Assignments of error numbers one, six, seven, and ten have not been briefed and are, therefore, considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

In the early morning hours of January 12, 1983, Jack Jambon was shot several times as he was leaving his business establishment near the town of Golden Meadow, Louisiana. Following leads received during the investigation, the Lafourche Parish Sheriff's Office arrested Ted Weatherall and charged him with the attempted second *661 degree murder. After his arrest, Weatherall gave a voluntary statement implicating the defendant. Cooperating with the Lafourche Parish Sheriff's Office, Weatherall agreed to wear a concealed body-bug (electronic transmitting device) in an attempt to obtain a tape recorded statement from the defendant.

On November 30, 1983, Weatherall (wearing the body-bug) approached the defendant and began a conversation. During the course of the conversation, which was recorded by Lafourche Parish Sheriff's deputies, the defendant made certain inculpatory statements concerning the shooting of Jack Jambon on January 12, 1983. During the latter part of this conversation, defendant was arrested.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends that the assistant district attorney made an improper and highly prejudicial reference to first degree murder on voir dire.

The record reflects that the following dialogue took place:

BY THE STATE:
Okay. Thank you.
Now first degree murder is defined as—
BY MR. CAILLOUET:
Objection, Your Honor. I am going to object to Mr. Toups' statement just now.
BY THE STATE:
I'm sorry.
BY MR. CAILLOUET:
It's totally—
BY THE STATE:
I should have said second.
BY MR. CAILLOUET:
But you didn't.
BY THE COURT:
He was going to catch himself in ten seconds.
BY THE STATE:
Second degree murder is defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm....

The reference to first degree murder was clearly unintentional. The Assistant District Attorney corrected himself immediately after the defense attorney noted his mistake. The defendant contends that this reference to first degree murder was highly prejudicial, in that it makes him appear to be charged with a more serious offense.

We fail to see how the jury was misled or the defendant prejudiced. The jury venire was present during voir dire. The record reflects that these potential jurors heard the crime of second degree murder referred to at least five times before the prosecutor accidentally referred to first degree murder, and several times after the accidental reference to first degree murder. Therefore, it is clear that the jury was aware that the defendant was charged with attempted second degree murder, not first degree. Furthermore, the defendant's failure to timely move for a mistrial or request an admonition is a waiver of any error he may have claimed. LSA-C.Cr.P. arts. 771, 775. State v. Kohler, 434 So.2d 1110 (La. App. 1st Cir.1983). This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant argues that the trial judge committed reversible error in denying a challenge for cause of a prospective juror.

Martha Walker testified that she was a social worker supervisor for a state child abuse and neglect program. She stated that she occasionally had indirect dealings with the probation department if one of the foster children were arrested. She also stated that her agency sends reports to the district attorney's office but that the decision to file charges against parents is made by the district attorney's office alone.

Louisiana Code of Criminal Procedure article 797(3) provides:

The state or the defendant may challenge a juror for cause on the ground that:
* * * * * *
*662 (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;

When asked by defense counsel if her relationship with the district attorney's office or any law enforcement personnel would tend to influence her decision in this case, she replied, "[N]o it would not, my job and education has [sic] provided me with training in the areas of looking at evidence and making decisions."

It is within the sound discretion of the trial judge to determine the competency of a juror. State v. Weathers, 320 So.2d 895 (La.1975). We find no abuse of this discretion. Martha Walker's answers during voir dire established that she could accord the defendant a fair trial. See State v. Wilkerson, 326 So.2d 353, 356 (La.1976). Furthermore, the defendant cannot complain on appeal of this ruling because he did not object to the trial court's refusal to grant his challenge for cause. See LSA-C.Cr.P. art. 800. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS FOUR AND FIVE:

Defendant contends that the trial judge erred in denying his motions for mistrial after prejudicial remarks made by two different state witnesses during their testimony. During the direct examination of Jack Jambon, the following colloquy occurred:

BY THE STATE:
Q. You knew Mr. Serigny before this incident?
A. Yes, sir.
Q. You have been knowing him a long time?
A. Yes, sir. He had robbed my place before.
BY MR. CAILLOUET:
Objection, Your Honor.

During direct examination of Ted Weatherall, the following exchange took place:

BY THE STATE:
Q. Did Mr. Serigny, tell you at any time that he wanted to shoot Mr. Jambon?
A. Yes, sir, previous to that.
Q. When was that?
A.

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Bluebook (online)
481 So. 2d 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-serigny-lactapp-1985.