96 2378 La.App. 1 Cir. 9/19/97, State v. Lutcher

• Citation: 700 So.2d 961
• Parties: 96 2378 La.App. 1 Cir
• Decision Date: 19 September 1997
• Court: Court of Appeal of Louisiana (US)

Page 961

700 So.2d 961

96 2378 La.App. 1 Cir. 9/19/97

STATE of Louisiana v. Donald Earl LUTCHER.

No. 96 KA 2378.

Court of Appeal of Louisiana First Circuit.

Sept. 19, 1997.

Douglas H. Greenburg, District Attorney, Juan W. Pickett, Asst. Dist. Atty., Houma, for Plaintiff-Appellee.

Margaret S. Sollars, Thibodaux, for Defendant-Appellant.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

[96 2378 La.App. 1 Cir. 2] SHORTESS, Judge.

Donald Earl Lutcher was indicted with second degree murder. La. R.S. 14:30.1(A)(1). He pled not guilty and, after trial by jury, was found guilty as charged. On appeal, this court reversed the conviction and sentence and remanded for a new trial. State v. Lutcher, 94-0291 (La.App. 1st Cir. 3/3/95), 652 So.2d 545, writ denied, 95-0847 (La. 11/13/95), 662 So.2d 464. Upon retrial, defendant was found guilty as charged. The court sentenced him to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. Defendant has appealed. He filed no assignments of error, but in his brief he argues six issues. Although these issues were not assigned as error, we are required to consider them. See State v. Galliano, 93-1101, p. 2 n. 1 (La.App. 1st Cir. 5/5/95), 655 So.2d 538, 540 n. 1.

FACTS

Defendant and his wife, Sandra Trosclair Lutcher (the victim), lived together in Houston, Texas, until November 1991, when the victim went to Gibson, Louisiana, to check on her ailing mother. While the victim was in Louisiana, she started seeing another man. In April 1992, defendant came to Gibson. After visiting with the victim he believed they would be getting back together. On the evening of April 19, 1992, defendant went to see the victim. He met her outside a lounge near her trailer. They spoke for about five or ten minutes. A woman who lived nearby overheard defendant twice ask the victim to return to Houston to live with him. She responded that she did not want to be with him. The woman did not consider the conversation to be violent. When defendant and the victim finished talking, she went back into the lounge, and defendant went behind her trailer.

Sometime after going back into the lounge, the victim asked her brother, John Roy Trosclair, III, (John) to go with her to check on her trailer. They walked to the trailer, went inside, and found everything to be in order. After the victim closed the door to leave, defendant ran from behind the trailer with a knife, which John described as long with a straight blade. Trosclair told the victim to run, and he started running to the lounge to get help. As the victim ran, defendant stabbed her in the back. When she fell to the ground, defendant continued to stab her. While defendant was chasing [96 2378 La.App. 1 Cir. 3] and stabbing the victim, he said things like, "Why you wrote him a letter? Why you're telling ... him that you love him ... ?" The victim died from the stab wounds.

Defendant fled from the scene on foot. Shortly after the offense, Deputy Randy Trosclair (Trosclair) of the Terrebonne Parish Sheriff's Office located defendant and arrested him. During a search of defendant's person, the deputy seized a pocketknife. After being advised of his rights, defendant told the deputy he had just left his wife's residence after stabbing her. He said he stabbed his wife because she was seeing another man. When the deputy asked defendant what weapon he used, defendant pointed to the pocketknife. An investigator from the district attorney's office asked defendant why he killed his wife, and defendant replied, "I had to kill her."

Defendant was interviewed in more detail during a taped statement at the sheriff's office. He told law enforcement officers he spoke to the victim by phone while she was at the lounge. In the conversation, she said she was mad at him. He then went to the lounge and had somebody ask her to come outside to talk to him. When she did, they spoke but did not argue.

Defendant claimed that during his conversation with the victim, the victim's brother John and Gregory Johnson, the victim's boyfriend, walked up. When defendant saw the men, he took out his pocketknife because he and Gregory had fought before. Defendant then used the knife to stab the victim.

When the officers asked him why he stabbed the victim, he said he did not know. He denied cutting the victim's throat, and he said he did not remember how many times he stabbed her. He said he thought he stabbed her only two or three times. When an officer asked if he killed her because she was at the bar with her boyfriend at a time when he thought they were getting back together, defendant agreed that might have been his reason. Defendant denied he had seen the victim with her boyfriend at the lounge. Defendant said he had been drinking since early in the morning and was angry and drunk when the murder occurred.

According to the pathologist who performed the autopsy, the victim had twenty-eight wounds to her body and bled to death as a result of those wounds. Two of the wounds were potentially fatal, one which severed the windpipe and cut into an artery and another to the mid-chest which penetrated a major vessel leading from the heart. Because two of the wounds on the victim's back appeared to be exit wounds, the [96 2378 La.App. 1 Cir. 4] pathologist believed the victim was stabbed all the way through her body (from front to back) for these two wounds. The pathologist considered wounds on the victim's hands, forearms, and arms to be defensive wounds.

To assist in proving intent to kill, the State introduced testimony concerning a prior incident in which defendant threatened to kill the victim. During December 1991, the victim sometimes stayed at the home of Betty R. Ruffin, Gregory Johnson's mother. Defendant came to Louisiana to visit then. At about 3 p.m. on December 10, 1991, defendant came to Ruffin's house and told her he wanted the victim to come outside. Ruffin told him the victim was not coming outside and asked him to leave. Before leaving, defendant said, "But I'll be back." Scared, Ruffin reported the incident to the police.

Later, defendant returned to Ruffin's house, again asking for the victim. When Ruffin told him the victim was not coming outside, defendant said, "The bitch must die." Defendant also told Ruffin he was going to remain at her house. Ruffin again called the police, and when the police arrived defendant started running. The victim later secured an order from the justice of the peace that informed defendant she did not want him on her property.

At the trial, several witnesses testified on behalf of defendant. They described the relationship between defendant and the victim as loving and without problems. Defendant's mother and sisters detailed defendant's consumption of alcohol on the date of the offense. They claimed he was drunk before the offense.

Defendant also testified. He described the various alcoholic drinks he consumed that day. He claimed he did not remember stabbing the victim but had accepted he was the person who stabbed her after reading news reports about the murder. He also testified that he and the victim had been married for seven and one-half years. For the last five years of the marriage they lived in Houston. When defendant came to the Gibson area in April 1992, he learned the victim was having an affair. After spending time with her and discussing their relationship, he felt secure about the marriage. On the afternoon of the offense, he expected the victim to come to a family barbecue but she did not come. He testified that, after talking to the victim outside the lounge, he no longer felt secure about the marriage. According to [96 2378 La.App. 1 Cir. 5] defendant, the murder was an "accident" because "it never was supposed to happen that way."

DENIAL OF CHALLENGES FOR CAUSE

In the first argument, defendant claims the court erred when it denied the defense challenges for cause of five prospective jurors: Jean Dagenhardt, Melanie Soudelier, Joseph Crawford, Wayne Bourgeois, and Steven Dupre.

Article 797 of the Louisiana Code of Criminal Procedure provides several grounds for which a prospective juror may be challenged for cause, including the following:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

....

(4) The juror will not accept the law as given to him by the court.

....

To prove there has been error warranting reversal of the conviction and sentence, defendant need only show (1) the erroneous denial of a challenge for cause, and (2) the use of all his peremptory challenges. The trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the court abused its discretion. State v. Cross, 93-1189, pp. 6-7 (La. 6/30/95), 658 So.2d 683, 686-87. A trial court's refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, if on further inquiry or instruction he has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. State v. Cross, 93-1189 at p. 8, 658 So.2d at 687.

Since defendant exhausted all of his peremptory challenges, we are left only with the task of deciding if the trial court erred in denying defendant's challenges for cause. Defendant argues Dagenhardt, Soudelier, and Crawford should have been excused for cause because they were unable to accept the defense of intoxication or return a verdict of manslaughter. He also claims Dagenhardt and Crawford were unable to afford him the presumption of innocence.

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