96 1736 La.App. 1 Cir. 6/20/97, State v. Galliano

• Decision Date: 20 June 1997
• Citation: 96 1736 La.App. 1 Cir. 6/20/97, State v. Galliano, 696 So.2d 1043 (La. App. 1997)
• Parties: 96 1736 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 1043

696 So.2d 1043

96 1736 La.App. 1 Cir. 6/20/97

STATE of Louisiana, v. Lynn P. GALLIANO.

No. 96 KA 1736.

Court of Appeal of Louisiana First Circuit.

June 20, 1997.

Margaret S. Sollars, Thibodaux, for Appellant Lynn P. Galliano.

Jason P. Lyons, Houma, for Appellee State.

Before WHIPPLE and FITZSIMMONS, JJ., and TYSON, J. Pro Tem. ¹

[96 1736 La.App. 1 Cir. 2] RALPH TYSON, Judge Pro Tem.

Defendant, Lynn Paul Galliano, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. Defendant pled not guilty and, after trial by jury, was found guilty as charged. The trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, we initially affirmed defendant's conviction, amended his sentence to reflect that he was to be given credit for time served prior to execution of sentence and remanded the case to the district court with an order to the district court to amend the commitment and minute entry of sentencing to reflect that defendant was to be credited with time served. See State v. Galliano, 93-1101 (La.App. 1st Cir. 6/24/94); 639 So.2d 440.

Defendant applied to the Louisiana Supreme Court for supervisory writs. The Supreme Court granted the applications in part by remanding the case to this Court for consideration of six arguments not formally assigned as errors, which we had declined to address. Defendant's writ applications were denied in all other respects. See State v. Galliano, 94-2030 & 94-2280 (La.1/6/95); 648 So.2d 911. On remand, we found merit to one of those arguments, reversed defendant's conviction and sentence and remanded the case for a new trial. See State v. Galliano, 93-1101 (La.App. 1st Cir. 5/5/95); 655 So.2d 538.

Thereafter, at a second jury trial, defendant was found guilty of the lesser included responsive offense of forcible rape, a violation of LSA-R.S. 14:42.1. The trial court sentenced defendant to imprisonment at hard labor for a term of thirty-five years without benefit of parole, probation or suspension of sentence and with credit for time served. Defendant now appeals, urging six assignments of error.

[96 1736 La.App. 1 Cir. 3] FACTS

The record reflects that the instant offense occurred between approximately 11:30 p.m. on June 9, 1992, and 1:30 a.m. on June 10, 1992, inside defendant's home at 200 Ongeron Street. After the offense, the victim, a thirty-nine year old woman, exited defendant's home and walked a couple of houses down the street to wait for a taxicab defendant called at her request. Soon after the victim left the residence and before the taxicab arrived, Tammy Baudoin drove up and talked to the victim on the street. Henry Aycock, the taxicab driver, was dispatched to defendant's address sometime between 1:30 and 2:00 a.m. on June 10. Within three or four minutes after receiving the dispatch, Aycock drove up and was approached by the two women. The victim told Aycock she had been raped and asked him to summon the police. Aycock had his dispatcher call the police. The police came to the location within a few minutes after Aycock's arrival. ²

The victim informed the police that defendant raped her and used a handgun and a shotgun to accomplish the crime and pointed out defendant's house to the police. Several officers came to the crime scene in response to the report of the rape. After the police knocked on the door of defendant's home and telephoned the residence without anyone answering the knocks or the telephone, they continued to knock on the door, windows and walls of the residence. Finally, defendant came out. Defendant was advised of his constitutional rights and the rape complaint. Defendant made oral statements to the police that he had not raped anyone but had had consensual sex that night with a woman.

After defendant gave his consent to the police to search his residence, he entered his home with the police who undertook the search. During the search, the [96 1736 La.App. 1 Cir. 4] police seized the bedclothes and pillows from a bed, and a pair of underpants and pantyhose belonging to the victim. Also seized were a .410 shotgun and a .38 handgun and holster for the .38 belonging to defendant. After defendant was handcuffed and taken into custody by the police, he was transported to the police station. After defendant was again advised of his constitutional rights and after defendant executed a consent to questioning form, he gave the police a videotaped statement consistent with his earlier oral statements.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, defendant contends that the trial court erred in overruling his objection, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), based solely on the prosecutor's use of a peremptory challenge to exclude prospective juror Cynthia Bradley from serving on the jury. In asserting his Batson claim to the trial court, defendant merely objected to the striking of Bradley and offered no other facts to meet his burden of establishing a prima facie case of purposeful discrimination by the state under the first step of the Batson analysis.

In Batson, the Supreme Court adopted a three-step analysis to determine whether or not the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race ³. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) [citations omitted; endnote ours].

[96 1736 La.App. 1 Cir. 5] "The second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). Because a trial judge's findings pertaining to purposeful discrimination turn largely on credibility evaluations, such findings ordinarily should be entitled to great deference by a reviewing court. Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Reasons offered to explain the exercise of peremptory challenges should be deemed race neutral unless a discriminatory intent was inherent in those reasons. See Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. at 1866.

Bradley was a member of the first panel of twenty prospective jurors from which the first six members of the twelve-person jury were selected. The remaining six members of the jury and an alternate were chosen from the second panel of seventeen prospective jurors. However, there is no record evidence that any of the prospective jurors were even questioned as to their race. The only indication of the race of any of the prospective jurors or the actual jurors selected is a statement by the prosecutor, after defense counsel made the Batson objection, that Bradley was African American and that Audrey Thomas, who was selected and seated to serve on the jury from the first panel, was African American. Consequently, other than this statement by the prosecutor relating to the race of Bradley and Thomas, the record does not indicate the racial composition of the actual jurors or the alternate juror (who was dismissed immediately prior to jury deliberations).

Without the trial court ever ruling as to whether or not defendant had established a prima facie case under Batson, the prosecutor responded to the Batson objection to the state's peremptory exclusion of Bradley, as follows:

Mr. Lyons:

First of all, Judge, I don't think there's been a showing of any systematic exclusion of blacks from this jury. Ms. Bradley for the record, is an African American and I'd also like the record to reflect that juror No. 1, Audrey Thomas, is also an African American. If you want some racially neutral reasons, No. 1, she [Cynthia Bradley] only [96 1736 La.App. 1 Cir. 6] has a seventh grade education and No. 2, I'm not sure where I've seen her, but she's related to someone that I've prosecuted. I realize it didn't come out from the record. But I know it for a fact, and I think that's more than sufficient to get above a Batson challenge. Addition, additionally, she was very inattentive. She wasn't paying attention when I questioned her. I couldn't establish eye contact. I just feel that she wouldn't be a good juror for the State for those reasons.

Immediately thereafter, in overruling the Batson objection, the trial court noted that defendant was Caucasian. Defense counsel objected to the ruling.

We conclude that defendant clearly failed to meet his burden of production under step one. Nevertheless, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. at 359, 111 S.Ct. at 1866.

The reasons given by the state for exercising the peremptory challenge of Bradley are facially "race-neutral." They contain none of the cultural, geographic, or linguistic classifications which, due to the ease with which such classifications may serve as a proxy for an impermissible classification, invite particularly exacting scrutiny. Cf. Hernandez v. New York, 500 U.S. at 363, 111 S.Ct. at 1868 (wherein a prosecutor's striking of Spanish-speaking jurors "raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges"). Hence, we conclude that none of the reasons articulated by the state are readily associated with...