776 So.2d 443 (La. 2001), 99-K-3518, State v. Givens

Docket Nº99-K-3518.
Citation776 So.2d 443, 99-3518 La. 1/18/01
Party NameSTATE of Louisiana, v. Eddie GIVENS.
Case DateJanuary 17, 2001
CourtSupreme Court of Louisiana

Page 443

776 So.2d 443 (La. 2001)

99-3518 La. 1/18/01

STATE of Louisiana,



No. 99-K-3518.

Supreme Court of Louisiana

Jan. 17, 2001.

Page 444

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Clive Adrian Stafford Smith, New Orleans, for Applicant.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Julie C. Tizzard, for Respondent.

Timothy A. Meche, for Amicus Curiae Association of Criminal Defense Attorney.

[99-3518 La. 1] KIMBALL, J.

A twelve-person jury convicted Eddie Givens of two counts of aggravated rape, one count of aggravated burglary, one count of armed robbery, one count of simple burglary, and one count of attempted simple burglary on May 30, 1997. The trial court sentenced the defendant as follows: (1) life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on counts 1 and 4; (2) twelve years imprisonment at hard labor with the first year to be served without benefit of parole, probation, or suspension of sentence on count 2; (3) three and one-half years imprisonment at hard labor on count 3; (4) thirty years imprisonment at hard labor on count 5; (5) ninety-nine years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on count 6; and (6) the sentences on counts 1, 2, and 3 were to run concurrently with each other and the sentences on counts 4, 5, and 6 were to run concurrently with each other and consecutively to the sentences on counts 1, 2, and 3. One of the defendant's arguments on appeal is that the prosecutor impermissibly exercised peremptory challenges to strike potential male jurors solely on the basis of gender in violation of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). After reviewing the record, we find that the trial court erred by not more specifically addressing the defendant's J.E.B. challenges and by not requiring the prosecutor to give gender-neutral reasons for her use of peremptory strikes. Because none of the defendant's other arguments constitute reversible error, the defendant's conviction and [99-3518 La. 2] [99-3518 La. 2] sentence are affirmed in part, and the case is remanded in part for further proceedings with respect to the J.E.B. issue. 1 447

Facts and Procedural History

The defendant was initially charged by grand jury indictment with two counts of aggravated rape (counts 1 and 4), two counts of aggravated burglary (counts 2 and 5), and two counts of armed robbery (counts 3 and 6). The charges resulted from two separate burglaries involving the rape and robbery of two victims, D.K. and P.A. 2

The first burglary and rape occurred on the night of June 22, 1993, at D.K.'s home on Octavia Street. D.K. testified that she went to bed that night at around 9:15 p.m. and was later awakened when the overhead light in her room came on and two men entered her room. The older man, who was armed with an ice pick, hit her on the arm, ordered her out of the bed, and demanded money. The younger man removed thirty dollars in cash from D.K.'s purse and then left the room. The older man then tied D.K.'s arms behind her back with the cord from her telephone. He threw her against a day bed in the room, tied a red handkerchief around her mouth, hit her on the back of the head, and raped her. D.K. testified that she saw the two men take a gold watch, a Rex pin, a monogrammed pin, earrings, a combination TV/VCR, a stereo, a boom box, and another small television from her home. They put the things in her white Taurus station wagon and left.

D.K. called the police at 11:35 p.m., and they located her car shortly after midnight with two men inside it. One man escaped from the car and hid under a house. The police detained the other man in the car, Earl Patterson, who identified the second man as Bryan Morgan. D.K. was taken to the scene, but stated that Earl Patterson was not one of the intruders. She was then shown a [99-3518 La. 3] [99-3518 La. 3] photographic lineup containing the picture of the second man, Bryan Morgan, and she did not identify him as one of the intruders. She was shown another photographic lineup with the defendant's picture in it, and she identified him as the man who raped her.

On June 27, 1993, at approximately 1:45 a.m., police officers were called to the 8400 block of Freret Street, where P.A. told them that two men had broken into her home and that the older of the two had raped her. She testified that she had fallen asleep on the sofa in her living room and that she was awakened by the living room light coming on. She awoke to find a man pointing a gun at her and telling her to get up. He took the diamond ring off her finger and took her into the kitchen where a younger male was looking around. The younger man took a boom box off the kitchen counter and headed towards the laundry room where the back door was located. The older man then hit her on the temple with the gun and ordered her to remove her pants. He ordered her to face the wall, and he raped her. She chose the defendant's picture out of a photographic lineup, and she testified that she had seen him earlier that day near her home.

Following trial, a twelve-member jury found the defendant guilty as charged on counts 1, 4, 5, and 6; guilty of simple burglary of an inhabited dwelling on count 2; and, guilty of attempted simple robbery on count 3. The trial court denied the defendant's motion for a new trial on June 16, 1997, and sentenced the defendant on June 16, 1997. The defendant appealed his conviction and sentence to the Fourth Circuit Court of Appeal, arguing five assignments of error. The Fourth Circuit affirmed his conviction and sentence.

The defendant applied for a writ of certiorari to this court based on the same five assignments of error. He argues that (1) he was deprived of his constitutional right to counsel of his choice; (2) he was deprived of his right to a fair trial when the prosecutor impermissibly struck potential jurors based on their gender; (3) the trial

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court committed reversible error by not granting a mistrial when a witness testified to crimes not admissible at trial; (4) that the District Attorney's Office should have been disqualified; and (5) that the prosecution should not have been permitted to refuse to enter into a plea agreement with the defendant. After a careful review of all of the defendant's assignments of error, we find that the defendant is entitled to some relief only on his claim of gender discrimination in the juror selection process.

[99-3518 La. 4] Law and Discussion

A. J.E.B. Claims 3

In the defendant's only meritorious assignment of error, he asserts that the state impermissibly struck potential male jurors because of their gender. Specifically, he argues that the district attorney's use of peremptory challenges to strike all but one man from the jury clearly established a prima facie case of gender discrimination and that the trial court erred by not requiring the district attorney to give gender-neutral reasons for the use of those challenges.

In Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S.Ct. 1712, 1718-19, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause forbids the use of peremptory strikes to challenge potential jurors solely on account of their race or the assumption that members of a certain race will be unable to impartially consider the case before them. The Court concluded that such discriminatory practices in the use of peremptory challenges denies a defendant equal protection of the law and unconstitutionally discriminates against the potential juror in violation of the Fourteenth Amendment. Id. at 84-89, 106 S.Ct. at 1716-19. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended its holding in Batson and instructed that the Equal Protection Clause also prohibits discrimination in jury selection on the basis of gender. The Court found that the same reasoning it had employed in Batson to determine that racial discrimination in the exercise of peremptory challenges violates the Fourteenth Amendment's promise of equality under the law and the equal right to participate in our democratic process naturally extended to the context of gender discrimination in juror selection. Id. at 140-42, 114 S.Ct. at 1427-28. In conclusion, the Court in J.E.B. stated that "[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself." Id. at 145, 114 S.Ct. at 1430.

[99-3518 [99-3518 La. 5] La. 5] The Supreme Court has established a three-step analysis to be applied when addressing a claim that peremptory challenges were exercised in a manner that violates the Equal Protection Clause. See Batson, supra; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). First, the party challenging the peremptory strike must make a prima facie showing of discrimination in the use of the strike. If a prima facie case is established, the burden shifts to the opposing party to articulate a gender-or race-neutral explanation for the strike. Then, the trial court must determine whether the party challenging the strike has carried the ultimate burden of proving purposeful discrimination. See Batson, 476 U.S. at 93-95, 106 S.Ct. at 1721-22; Hernandez, 500 U.S. at 358-59, 111 S.Ct. at 1865-66.

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The combination of factors needed to establish a prima facie case are: (1) the defendant must demonstrate that the prosecutor's challenge was directed at a member of a cognizable group; (2) the defendant must then show the challenge was peremptory rather than for cause; and (3) finally, the defendant must show circumstances sufficient to raise an inference that the prosecutor struck the venire person...

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