State v. Winzer

545 So. 2d 1259, 1989 La. App. LEXIS 1241, 1989 WL 63854
Louisiana Court of Appeal·Decided June 14, 1989·No. No. 20637-KA·Published·Cited by 2 cases

Opinion

SEXTON, Judge.

The defendant, John L. Winzer, was found guilty by jury of possession of marijuana with intent to distribute and was sentenced by the trial court as a multiple offender to serve a period of 16 years without benefit of parole, probation or suspension of sentence, and in addition to pay a fine of $5,000. The defendant was also ordered to serve an additional two years at hard labor for failure to pay the fine. The defendant appeals his conviction and sentence asserting four assignments of error. We affirm the defendant’s conviction, amend the sentence and affirm the sentence as amended.

FACTS

After a two to three year investigation, Sgt. Randall Pepper of the Louisiana State Police Narcotics Division sought and obtained a search warrant for the residence of John L. Winzer. He described observing the defendant’s house for two to three years prior to the instant search. He stated that he spent time in the woods around the defendant’s house observing the activities. The warrant was based at least in part upon information received from a confidential informant (Cl).

On October 18, 1986, a number of officers gathered in order to execute the search warrant obtained by Sgt. Pepper. The officers then went to the residence of John L. Winzer, in addition to the residence of his parents located on the same property. The officers searched the trailer house which was the residence of the defendant, the residence of Mr. and Mrs. Winzer, and also a shop which was the business of the defendant. During the execution of the warrant, the officers seized a number of items alleged to be contraband or seizable items. Trooper Don Campbell seized a package of suspected marijuana from the freezer compartment of a refrigerator. The marijuana he seized was contained in two individual bags inside of a larger bag. Trooper Henry Whitehorn found a shoebox located beside the sofa in the residence of the defendant. Contained in the shoebox were a note pad with names and figures, JOB cigarette papers, gleanings of marijuana, and a bag of marijuana. Trooper John Ballance seized a paper bag containing eight baggies of marijuana from a refrigerator located in the garage or shop.1

Deputy Steve Williams of the Claiborne Parish Sheriff’s Office seized $11,000 located in a dark-colored purse, along with a black pouch containing $992. Both purses were located in the defendant’s bedroom. He also seized jewelry from the same bedroom. Sgt. Randall Pepper, the officer who had obtained the search warrant, seized scales out of the defendant’s kitch[1262] en. Also seized during the search were two vehicles located in the garage area, and a number of guns seized from the defendant’s parents’ house.

The defendant was then charged with possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966.

JURY PANEL SELECTION

The defendant first assigns as error the trial court’s denial of the defendant’s motion for mistrial based upon the procedure used to obtain the panels for voir dire of prospective jurors.

LSA-C.Cr.P. Art. 784 prescribes the method for selecting the jury panels. This article provides:

Art. 784. Method of selecting panel
In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.
In those judicial district courts, including the Criminal District Court for the parish of Orleans, wherein use of a jury pool has been authorized by law, the petit jury panel shall be selected by random, indiscriminate choice in a manner to be determined by the rules of the court in which the jury panel is selected.

Comment (c) to this article states:

Details such as whether the jurors should be called singly or by groups of two, three, etc., are left to the court’s discretion. The court can and should regulate such matters; statewide uniformity on the subject has never existed and is not necessary.

The procedure used during this trial was that the sheriff would pull out a number of slips from an envelope which contained the names of all of those on the petit jury venire. These names which had been pulled were then called to determine who was and who was not present until six potential jurors had been called forward. The jurors were thus called forward in groups of six for voir dire until twelve jurors plus one alternate had been selected.2 After two panels had been pulled, but before the start of voir dire on the second panel, the defendant objected to the method used to select the jurors. The defendant requested a mistrial and the trial court deferred ruling thereon until the conclusion of jury selection.3

At the hearing held on the defendant’s motion for mistrial, the defendant asserted that the sheriff had discriminated in choosing those individuals called into the individual jury panels. The first witness, Walter V. Kendrick, an attorney at law, testified that the sheriff would pull a handful of slips out of the jury venire envelope and fan them out in his hand. He stated that it appeared to him that the sheriff did not call the names from right to left or left to right but seemed to pick and choose which name to call from the fanned out slips. However, he testified he could not tell whether the names on the slips were face up or face down.

The defendant, John L. Winzer, testified that the sheriff seemed to be selecting the names in his hand discriminately rather than from top to bottom or vice versa. He also said that it seemed to him that the names on the slips were facing the sheriff.

Stephen Thomas Sylvester, who was assisting as counsel for the defendant, also testified. He stated that the sheriff reached in and pulled a handful of slips out of the jury envelope. The sheriff then fanned these slips out in his hand. Mr. Sylvester, however, was unable to state that the sheriff discriminately called out the names, although he said that the methodology had the potential for discrimination. He also said that he was able to see the writing on some of the slips, indicating that the names on these slips were facing the counsel table rather than the sheriff. He also did not recall that the sheriff had slips remaining in this hand after the completion of a six-person panel.

[1263] One of the defendant’s witnesses, Willie Bell, stated in describing the sheriffs actions, “He’d just reach in the envelope, got four out of the envelope put ’em in his hand and call ’em out, call their name.” Rolanda Winzer testified that she could not tell whether the sheriff was discriminating by calling out the names in a particular order.

Defense counsel, Edward Henderson, testified that he had noticed this procedure previously in Claiborne Parish and that he had been concerned about it. He conceded that he made no request for a change in procedure prior to the beginning of jury selection. He also testified that it appeared to him that the sheriff pulled several slips at a time but did not call the names either from right to left or from left to right — instead, the sheriff appeared to select from among the slips in his hand.

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State v. Winzer, 545 So. 2d 1259, 1989 La. App. LEXIS 1241, 1989 WL 63854 (La. Ct. App. 1989).

545 So. 2d 1259 (State v. Winzer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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