96-608 La.App. 3 Cir. 12/11/96, State v. Hampton

• Decision Date: 11 December 1996
• Citation: 687 So.2d 505
• Court: Court of Appeal of Louisiana — District of US
• Parties: 96-608 La.App. 3 Cir

Page 505

687 So.2d 505

96-608 La.App. 3 Cir. 12/11/96

STATE of Louisiana, v. Jerry Lee HAMPTON.

No. 96-608.

Court of Appeal of Louisiana Third Circuit.

Dec. 11, 1996.

Charles F. Wagner, District Attorney, Darrell Hickman, Alexandria, for State.

John Michael Lawrence, New Orleans, for Jerry Lee Hampton.

Before DOUCET, C.J., and COOKS and SULLIVAN, JJ.

[96-608 La.App. 3 Cir. 1] DOUCET, Chief Judge.

The defendant, Jerry Lee Hampton was convicted of second degree murder. He appeals the conviction and the sentence imposed in connection therewith.

On August 20, 1982, the defendant fought with Billy King at the Chicken Shack (or Sugar Shack) Cafe in Alexandria, Louisiana. After the fight, the defendant went to the "Sonia Quarters" area, where he was joined by Gerald Carr, John Hampton and another man. Near midnight, they returned to the Chicken Shack Cafe. The defendant fired two or three shots, killing James King, Billy King's brother.

After the shooting, Hampton turned himself in to the police. At the police station, he made an exculpatory statement to Joyce Holmes, who witnessed the shooting and the earlier fight. The defendant also made a statement to police. That statement was not introduced at trial. Several weeks after his arrest, while in the parish jail, Jerry Hampton made another statement to a police detective. At trial, the [96-608 La.App. 3 Cir. 2] state introduced part of that statement on rebuttal. Pursuant to a defense motion, the entire statement was played for the jury.

On November 19, 1982, the defendant was indicted for second degree murder, a violation of La.R.S. 14:30.1. ¹ He was convicted as charged on June 16, 1983, after a trial by jury. On August 1, 1983, the district court sentenced Hampton to life imprisonment at hard labor.

The defendant was granted an appeal to this court. However, his attorney failed to file a brief arguing any assignments of error. This court reviewed the record for errors patent, and found none. Therefore, the conviction and sentence were affirmed. See State v. Hampton, 458 So.2d 1000 (La.App. 3 Cir.1984). It does not appear that Hampton sought review by the Supreme Court.

On June 17, 1991, the defendant filed for post-conviction relief, raising nine errors, including ineffective assistance of counsel. The state responded, addressing each claim. On March 2, 1992, the district judge denied the application. Apparently, the defendant did not seek further review at that time. Hampton later filed a second application for post-conviction relief, again raising ineffective assistance of counsel. The state filed a procedural objection and answer. On October 28, 1992, the district court denied the application as repetitive and untimely. Hampton then sought writs to this court. Writs were denied. State v. Hampton, 93-84 (La.App. 3 Cir. 6/14/93). He did not seek review of the denial of his writ application.

The defendant applied to the Louisiana Supreme Court, alleging this court erred in 1984 when it found no errors patent. He also argued this court should have held he had ineffective assistance of counsel, due to his attorney's failure to file or brief errors. The supreme court ordered an out-of-time appeal. State v. Hampton, 93-2022 [96-608 La.App. 3 Cir. 3] La.2/9/96); 667 So.2d 550. The defendant now appeals his original conviction and sentence.

CREDIT FOR TIME SERVED

In reviewing this record for errors patent on the face of the record as required by La.Code Crim.P. art. 920, we have noted that the defendant was not given credit for time served. La.Code Crim.P. art. 880 provides that when imposing sentence the court shall give the defendant credit toward service of his sentence for time spent in actual custody before the imposition of sentence. Therefore, we will amend the sentence to reflect that the defendant is given credit for time served before the execution of the sentence. See La.Code Crim.P. art. 882(A). Resentencing is not required. However, the case is remanded. The district court is ordered to amend the commitment and minute entry of the sentence to reflect that the defendant is given credit for time served. State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94); 640 So.2d 561, writ denied, 94-1455; 651 So.2d 858 (La.3/30/95). The defendant's trial took place in 1982. La.Code Crim.P. art. 880 was in force at that time. Although Hampton received a mandatory life sentence, La.Code Crim.P. art. 880 applies to life sentences. State v. Howard, 626 So.2d 459 (La.App. 3 Cir.1993).

JURY VENIRE

The defendant first alleges that the trial court erred by not granting his motion to quash the jury venires. On appeal, he urges more than one basis for the motion.

First, Hampton argues that African-Americans were improperly excluded from the grand jury. However, the defendant failed to timely raise this issue in his motion to quash, and alleges no facts supporting his current argument. Louisiana jurisprudence requires that challenges to the grand jury venire be raised by motion to quash, filed within fifteen days of arraignment. La.Code Crim.P. arts. 521 and 535. State v. Dillard, 320 So.2d 116 (La.1975).

[96-608 La.App. 3 Cir. 4] The defendant makes a similar argument regarding the petit jury venire, an issue which was properly raised by motion to quash. The defendant objected that the jury pool did not represent a fair "cross-section of the community" because it contained no black people. The trial court noted that the venire selected using a computer-generated list of names drawn from the voter registration rolls. Further, many African-American venire members received hardship excuses. As a result, the black defendant was left with an all white venire for jury selection.

The defendant attempts to employ Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to support his argument. However, Batson does not apply, because it guards against prosecutorial misconduct, rather than decisions made by the court. Venire-related objections have produced a separate line of cases.

In State v. Matthews, 552 So.2d 590, 596-597 (La.App. 2 Cir.1989), writ denied, 559 So.2d 137 (La.1990), the second circuit stated:

The defendant argues that the trial court erred in denying his motion to quash the jury venire on the basis of selection procedures which fail to insure representation of a fair cross section of the community.

Prior to trial, the defendant filed a motion to quash the jury venire. He claimed that, because the venire was selected from lists of licensed drivers and registered voters in the parish, it failed to insure a representation of a fair cross section of the community.

On appeal, the defendant argues that other sources, such as telephone listings and church membership roles, should have also been utilized in choosing the jury venire in order to provide a representative cross section of the community. This argument is meritless.

LSA-C.Cr.P. art. 419(A) provides:

A general venire, grand jury venire or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.

[96-608 La.App. 3 Cir. 5] In State v. Sheppard, 350 So.2d 615 (La.1977), the Supreme Court upheld a general venire composed of a list of registered voters and persons with driver's licenses residing in the parish, where there was no showing that such a selection process was discriminatory. The jurisprudence allocates to the defendant the burden of establishing fraud or that some irreparable injury was caused by the jury selection process and in the absence of such a showing, a jury venire will not be set aside. State v. Procell, 332 So.2d 814 (La.1976); State v. Lynch, 323 So.2d 781 (La.1975); State v. Liner, 397 So.2d 506 (La.1981); State v. Brown, 395 So.2d 1301 (La.1981).

Additionally La.Code Crim.P. art. 783(B), states that:

B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.

Since the defendant's allegations center on the pre-selection venire, rather than prosecutorial actions in the jury selection process, we conclude that Matthews is applicable to the facts of this case. Because Hampton has failed to demonstrate fraud, irreparable injury, or systematic exclusion of African-Americans from the venire, as required by La.Code Crim.P. art. 419, his argument regarding the jury venire fails.

[96-608 LA.APP. 3 CIR. 6] PHOTOGRAPHIC EVIDENCE

Hampton next claims the district court erred by admitting two photographs into evidence. The two pictures depicted the lounge area of the Chicken Shack Cafe, and the victim lying face-up, respectively. Hampton argues that because the photographs were gruesome, their probative value had to outweigh their prejudicial effect for them to be admissible. State v. Bourque, 622 So.2d 198 (La.1993).

During trial, the defense objected arguing that the pictures were introduced to inflame the jury, and that they were repetitious of other photographic evidence. Further, the defendant contends one photograph showed the victim's body as it appeared after it was moved, not its actual position resulting from the crime.

Hampton also argues that the photographs were unnecessary and of low probative value, because key issues such as number and location of wounds, and the identity of the victim were proved by other evidence. The state asserts that the photographs were admissible to corroborate the other evidence. The standard of review in this situation is abuse of discretion. In a similar situation, this court wrote:

As a part of its fact-finding...