State v. Vergo

594 So. 2d 1360, 1992 WL 9562
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1992
Docket23049-KA
StatusPublished
Cited by30 cases

This text of 594 So. 2d 1360 (State v. Vergo) 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. Vergo, 594 So. 2d 1360, 1992 WL 9562 (La. Ct. App. 1992).

Opinion

594 So.2d 1360 (1992)

STATE of Louisiana, Appellee,
v.
Tamala VERGO, Appellant.

No. 23049-KA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1992.
Rehearing Denied February 21, 1992.
Writ Denied May 15, 1992.

*1361 Wellborn Jack, Jr., Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., James Stewart and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.

Before MARVIN, C.J., and NORRIS and BROWN, JJ.

MARVIN, Chief Judge.

After having allegedly triggered what became known as the Cedar Grove Riot in Shreveport in 1988, Tamala Vergo appeals her 1990 conviction by a jury of manslaughter. LRS 14:31. She complains that the trial court should not have granted the state's challenge for cause of two prospective jurors and that two of her requested special charges should have been given to the jury.

We affirm.

FACTS

About 9:45 p.m. on September 20, 1988, Cynthia Johnson and Tamala Vergo drove to a convenience store next to A.B. Palmer Park on Line Avenue in Shreveport, an area that was known for drug activity, to obtain cocaine. When Johnson stopped the automobile on the crowded parking lot, Vergo and Johnson asked the several black males who immediately approached the car whether they had any "rock" [crack cocaine] to sell.

One of the males, Lawrence Adams, handed Johnson a few gravel rocks he had apparently picked up from the parking lot. Another, Andre McDonald, gave a small package containing rock cocaine to Vergo to inspect. Johnson returned the gravel rocks Adams had given her and began backing the car. Someone in the crowd yelled that "she" (Vergo) had a gun. McDonald, reaching into the car, grabbed the package of rock cocaine he had given to Vergo and began to move away from the car. Vergo then pointed a pistol and fired *1362 two shots toward the males who began running toward the park.

One of the shots hit a fence post and the other fatally wounded William David McKinney, a young and distant bystander who was in the line of fire. An unknown person or persons in the park fired shots at the automobile, which then stalled. Both females ran from the vehicle and into the store, yelling for somebody to call the police. They hid the gun in the toilet in the restroom of the store where it was later found by the police. As a larger crowd assembled and emotionally reacted to the fatal shooting of McKinney, the police escorted the females to their squad car and away from the scene.

ABANDONED ASSIGNMENTS OF ERROR

Vergo concedes that the evidence was sufficient to convict under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This assignment and two others which were not briefed are deemed abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La. 1978); State v. Kotwitz, 549 So.2d 351 (La. App.2d Cir.1989), writ denied.

CHALLENGES FOR CAUSE

Vergo complains of the granting of the state's challenge for cause of prospective jurors Christopher S. Leonard and Betty M. Sherman.

The erroneous granting of a challenge for cause to a prospective juror is not reversible error unless the effect of the ruling is to allow the state more peremptory challenges than the law provides. CCrP Art. 800; State v. Labostrie, 358 So.2d 1243 (La.1978); State v. Edwards, 406 So.2d 1331 (La.1981), U.S. cert. denied. Vergo asserts that the trial court's ruling had the effect of allowing the prosecution extra peremptory challenges because the state exercised all 24 of its peremptory challenges.

A trial court has broad discretion to rule on challenges for cause. We do not disturb a ruling unless an abuse of discretion is demonstrated. State v. Sugar, 408 So.2d 1329 (La.1982). Discretion is abused when exercised arbitrarily and unreasonably and causes prejudice to the accused. State v. Knighton, 436 So.2d 1141 (La. 1983), U.S. cert. denied. State v. Broadway, 440 So.2d 828 (La.App.2d Cir.1983).

The state or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. CCrP Art. 797(2). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to the law may be reasonably inferred. State v. Jones, 474 So.2d 919 (La.1985), U.S. cert. denied.

A juror may be challenged for cause on the ground that he will not accept the law as instructed by the court. CCrP Art. 797(4). A trial court does not abuse its discretion in excusing a juror for cause where the juror appeared convinced that the burden of proof was "beyond a shadow of a doubt" and was not inclined to accept the reasonable doubt standard as instructed by the court. State v. Hall, 549 So.2d 373 (La.App.2d Cir.1989), writ denied.

A trial court does not abuse its discretion in granting a challenge for cause where the juror stated that she would require the state to prove its case to an absolute certainty rather than beyond a reasonable doubt. State v. Brown, 504 So.2d 1025 (La.App. 1st Cir.1987), writ denied.

Vergo claims that Mr. Leonard and Ms. Sherman were excused for cause for expressing their view that Vergo was innocent, arguing that this view was

nothing more than the law required of them, that is, give her the full benefit of the presumption of innocence and hold the State to the heavy burden of proving her guilt beyond a reasonable doubt.
MR. LEONARD

During voir dire, Leonard stated that he is not an open minded person, and *1363 he believed that Vergo was innocent because "[he has] been in that store too late at night [and he knows] what goes on there." When asked if he could be a fair and impartial juror, Leonard responded, "Not really. I don't believe so." Leonard explained that he would be "lying" if he told the court that he could deal with the facts as presented to him in open court and erase his preconceived opinions based on the fact that he has been to the area where the killing occurred. He stated that the fact that he knew the area might keep him from being fair and impartial to the state and the defendants.

Leonard also said that the state would have to have "some very strong evidence," "a lot of evidence," "good evidence," to convince him that the females were guilty. Leonard stated that the state would have to go beyond its burden of proof, but later stated that he would not hold the state to a higher standard because of his personal beliefs.

The state based its challenge of Leonard on his partiality and refusal to accept the law as given to him by the court. Our review convinces us that the trial court did not abuse its discretion in excusing Leonard. Leonard's answers revealed his honest doubt about his ability to accept the law as given him by the court and to be impartial.

MRS. SHERMAN

Ms. Sherman stated that she had learned about the case by talking to people who lived in the Cedar Grove neighborhood and who attended meetings of the black-white task force that was appointed after the riot to quell post-riot racial tension. She repeatedly stated that she had made up her mind about the case, opining that Vergo's conduct was justified.

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Cite This Page — Counsel Stack

Bluebook (online)
594 So. 2d 1360, 1992 WL 9562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vergo-lactapp-1992.