State v. Swafford

588 So. 2d 1276, 1991 WL 226546
CourtLouisiana Court of Appeal
DecidedOctober 30, 1991
Docket22806-KA
StatusPublished
Cited by7 cases

This text of 588 So. 2d 1276 (State v. Swafford) 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. Swafford, 588 So. 2d 1276, 1991 WL 226546 (La. Ct. App. 1991).

Opinion

588 So.2d 1276 (1991)

STATE of Louisiana, Appellee,
v.
Bertha SWAFFORD, Appellant.

No. 22806-KA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1991.

*1277 James E. Beal, Jonesboro, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Walter E. May, Jr., Dist. Atty., Chris L. Bowman, Asst. Dist. Atty., Jonesboro, for appellee.

Before VICTORY, BROWN and STEWART, JJ.

BROWN, Judge.

Defendant, Bertha Swafford, was tried by jury and convicted of one count of possession of marijuana with intent to distribute and five counts of distribution of marijuana pursuant to LSA-R.S. 40:966. Thereafter she was found to be a second felony offender pursuant to LSA-R.S. 15:529.1 because of a prior conviction for possession of marijuana with intent to distribute. Defendant was sentenced as a habitual offender to serve 35 years at hard labor for her conviction on possession with intent to distribute marijuana. This 35 year sentence was to run concurrently with sentences of 5 years at hard labor for each count of distribution of marijuana. From these convictions and sentences, defendant appeals. We affirm her conviction and the 35 year sentence for possession with intent to distribute while reversing the distribution convictions.

*1278 Chief Randy McKinney of the Jonesboro Police Department received a telephone call from a confidential informant. The informant told Chief McKinney of witnessing the presence and sale of marijuana in the home of defendant earlier that night. Armed with this information Chief McKinney obtained a judicial warrant to search the home of the defendant for marijuana. Defendant was served with the warrant and informed of the intent to search her house. During the search, 5 bags of marijuana, a large bag with 50 smaller bags of marijuana, a quantity of marijuana between the mattresses of a bed, a medicine bottle containing marijuana seeds and a marijuana cigarette were seized.

When questioned, defendant admitted selling marijuana earlier that night to Kathy Cottonham, Vergie Cottonham, Buggie Red Cottonham, Lucille Davis and "Jetta". The charge of possession with intent to distribute emanated from the marijuana seized at defendant's home supported by her confession. The five counts of distribution arose solely from the confession without any further investigation or corroboration.

In her first assignment of error, defendant asserts that the prosecutor used peremptory challenges in a discriminatory manner to excuse blacks from jury service. This claim is grounded on the U.S. Constitution's 14th Amendment proscription that "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."

The U.S. Supreme Court has consistently and repeatedly recognized that a "State's purposeful or deliberate denial ... on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause". Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Specifically the Equal Protection Clause guarantees a defendant, a prospective juror and society that peremptory challenges will not be used to exclude potential jurors solely on account of their race. Batson, supra.

In Batson v. Kentucky, supra, the U.S. Supreme Court reexamined the evidentiary burden of a criminal defendant who claims to have been denied equal protection through the State's use of peremptory challenges to exclude members of his or her race from the petit jury. The previous burden required a defendant to demonstrate a systematic removal of a particular race or group from jury panels in case after case over a substantial period of time. Swain, supra. Batson overruled this method of proof and established that "(a) defendant may make a prima facie showing of racial discrimination in the selection of the venire by relying solely on the facts concerning its selection in his case." Batson, supra. Defendant must show that from all the relevant circumstances an inference is raised that the prosecutor used peremptory challenges to exclude veniremen from the petit jury on account of race. Once a defendant presents a prima facie showing, the burden shifts to the prosecution to set out race-neutral explanations for its challenges. Batson, supra; Powers v. Ohio, ___ U.S. ___, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

In assessing whether a defendant has shown a prima facie case of purposeful discrimination "the trial court should consider all relevant circumstances. For example, a `pattern' of strikes against blacks included in the particular venire might give rise to an inference of discrimination. Similarly the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose." Batson, supra.

The record does not show the racial composition of the jury that eventually decided this case except that at least two were black. In the first panel of eighteen prospective jurors, there were five blacks and the State excused three with peremptory challenges. A Batson objection was made by defendant but no circumstances in support of the objection were argued. The defendant was black and the excused veniremen *1279 were black. Because the defense presented no reasons and two blacks were accepted on the jury from this group, the trial court did not find at that time that the circumstances supported a prima facie case of the exclusion of jurors solely on race. Therefore, the trial court did not require an explanation by the prosecutor of the challenges. Specifically, the court stated:

I agree with the State's position that there were five (blacks), two have been selected, three excused. The court does not find the prima facie showing at this time that the violation of Batson at the appropriate time if it does develop we will require the State to make an explanation of challenges used. Mr. D.A., I request thought (sic) that you make note of those reasons for your challenges and at the conclusion of juror (sic) put it of record and so the record will be complete for the court.

At the end of the questioning of the second panel of prospective jurors, the defense attorney offered no objections to the prosecutor's use of peremptory challenges. The record does not show if any blacks were selected from this panel. In the third and final panel six prospective jurors were called. Defense counsel noted on the record that two of them were black and that the State used two peremptory challenges. Nothing further was said leaving this court to presume that the two blacks were challenged.

The initial burden is on defendant to show a prima facie case of purposeful discrimination. To do so he must establish that the State used its peremptory challenges to remove black members from the jury, and that this fact, along with other relevant circumstances, created an inference that the prosecutor used peremptory challenges to exclude jurors on account of race. State v. Collier, 553 So.2d 815 (La. 1989), modified, Powers v. Ohio, supra.

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Bluebook (online)
588 So. 2d 1276, 1991 WL 226546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swafford-lactapp-1991.