State of La. v. PEGUES

• Decision Date: 09 June 2010
• Docket Number: No. 09-1089.,09-1089.
• Citation: 43 So.3d 1008
• Parties: STATE of Louisiana v. Daniel L. PEGUES.
• Court: Court of Appeal of Louisiana — District of US

43 So.3d 1008

STATE of Louisiana v. Daniel L. PEGUES.

No. 09-1089.

Court of Appeal of Louisiana, Third Circuit.

June 9, 2010.

COPYRIGHT MATERIAL OMITTED.

John F. Derosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant-Appellant, Daniel L. Pegues.

Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On the evening of January 24, 2007, Alan Inzer, a deputy of the Calcasieu Parish Sheriff's Office, who was off-duty, was having drinks with friends at the Cajun Wharf in Lake Charles. At some time after midnight, the deputy and one of his friends, Michael Horton, left to go to another bar. According to Mr. Horton, while on the way, Deputy Inzer suddenly turned into a parking lot, and stated something like "these guys are breaking in the place." The business was Mudd Fashions on Ryan Street in Lake Charles. Mr. Horton explained that when Deputy Inzer turned into the parking lot, two or three people took off running.

After pursuing them in his vehicle for a short distance, Deputy Inzer stopped his truck and exited it to continue the chase on foot. The deputy told Mr. Horton to call 911. While on the phone to 911, Mr. Horton heard gun shots. Deputy Inzer was found shot to death, lying on the ground. The deputy's gun, which was loaded, was found in its holster inside his left boot.

Defendant, Daniel L. Pegues, was charged by bill of indictment with first degree murder, a violation of La.R.S. 14:30, and attempted simple burglary, violations of La.R.S. 14:27 and 14:62. The State amended the first degree murder charge to second degree murder.

At Defendant's trial, Dr. Terry Welke, the forensic pathologist who performed the autopsy, testified Deputy Inzer suffered from four gunshot wounds. One of the bullets entered the victim's outer left thigh, exited the body and reentered the right thigh and then exited. Two shots to the chest were fatal, and the fourth shot was a graze wound.

Zeb Johnson, an expert in the field of forensic investigation, testified he believed Deputy Inzer was standing still when he was first shot. Mr. Johnson explained that the shot to the legs was a straight shot, and the lower body had to be "equally straight and equally together when the shots were fired." Mr. Johnson noted that the other gunshot wounds indicated movement by the victim.

On cross-examination, Mr. Johnson acknowledged that the victim was found with his left pants leg pulled up, and it was possible the victim was first shot while he was reaching down to get his gun from his boot, then stood up, and was shot in his legs.

The investigation revealed three suspects, Elmer Franklin, Tromale Guy, and Defendant. Mr. Franklin testified when he saw the lights of the truck pull into the parking lot of the business, he started to run. Mr. Franklin stated while he was running, he heard a gunshot, he looked around, and saw Defendant "right there standing up and a man that fell, like, on the ground." Mr. Franklin testified after he started running again, he heard several more shots.

Following a trial by jury, the jury returned a verdict of manslaughter and attempted simple burglary. Defendant was subsequently sentenced to forty years at hard labor for manslaughter and six years at hard labor for attempted simple burglary, with the sentences to run concurrently to each other. Defendant filed a motion to reconsider sentence, which the trial court denied.

On appeal, Defendant assigns the following errors:

1. Defendant was denied a fair trial due to the trial court's denial of his motions for a change of venue; the trial court erred in finding he failed to meet his burden or proof.

2. Defendant was subject to double jeopardy when he was convicted of both manslaughter and attempted burglary, and received sentences for each.

3. His sentence of forty (40) years for manslaughter is excessive under the circumstances of this case.

ASSIGNMENT OF ERROR NO. 1

Defendant asserts he was denied a fair trial because the trial court denied his motions for a change of venue. A hearing on Defendant's change of venue motion was held on September 5, 2007, and the motion was denied. A second motion seeking a change a venue was urged, and the hearing was held on June 26, 2008. The trial court denied the motion. During voir dire, the motion for change of venue was re-urged, and arguments were made for the change by defense counsel. The trial court rejected the motion and defense counsel objected.

Defendant asserts the trial court failed to give proper consideration to relevant factors in determining a change of venue. Defendant argues the primary reason for the change of venue was the case involved the killing of a police officer, which was an "inflammatory factor."

The State responded the fact that the case involved a law enforcement officer did not warrant a change of venue. They also argued Defendant failed to prove the "utter corruption of his trial venue by media coverage."

In State v. Clark, 02-1463 (La.6/27/03), 851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98, (2004), the court explained in pertinent part:

A defendant is guaranteed an impartial jury and a fair trial. La. Const. art. 1, § 16; State v. Brown, 496 So.2d 261, 263 (La.1986). To accomplish this end, the law provides for a change of venue when a defendant establishes that he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Frank, 99-0553, p. 11 (La.1/17/01), 803 So.2d 1, 12 (citations omitted).

Changes of venue are governed by La. C.Cr.P. art. 622, which provides,

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue, the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

La.C.Cr.P. art. 622 case can be expected to arouse the interest of the public in the vicinity...." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The defendant must prove more than mere public knowledge or familiarity with the facts of the case to be entitled to have his trial moved to another parish; rather, the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial. Frank, 99-0553 at p. 14, 803 So.2d at 15. Thus, a defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime. State v. Thompson, 516 So.2d 349, 352 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988).

On review of a denial of change of venue, courts will primarily inquire as to the scope and nature of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial, in order to ascertain whether prejudice existed in the mind of the public which prevented the defendant from receiving a fair trial. See, e.g., Murphy v. Florida, 421 U.S. 794, 802-3, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975), State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). The seven factors enumerated by this court in Bell help facilitate the inquiry into the nature and scope of publicity disseminated in the community where a crime occurred. Courts must distinguish, however, largely factual publicity from that which is invidious or inflammatory, as they present real differences in the potential for prejudice. Murphy, 421 U.S. at 800-01 n. 4, 95 S.Ct. at 2036 n. 4.

Additionally, courts have examined the number of jurors excused for cause for having fixed an opinion as another gauge of whether prejudice exists in the public mind. Id. at 803, 95 S.Ct. at 2037-38; State v. Wessinger, 98-1234, p. 7 (La.5/28/99), 736 So.2d 162, 173, cert. denied, 528 U.S. 1050, 120 S.Ct. 588, 145 L.Ed.2d 489 (1999). As the Supreme Court noted, in a community where the majority of prospective jurors will openly admit to a disqualifying prejudice, the reliability of other jurors' assurances that they are impartial and have no preconceived notion may be drawn into question. Murphy, 421 U.S. at 803, 95 S.Ct. at 2037. Yet, the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is insufficient to rebut the presumption of the juror's impartiality. Id. at 800, 95 S.Ct. at 2036. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Id. (quoting Irvin, 366 U.S. at 723, 81 S.Ct. at 1642).

Thus, as we explained in Frank, there is not a bright line test for determining the degree of prejudice existing in the collective mind of the community. Frank, 99-0553 at p. 16, 803 So.2d at 16. There is no established minimum level of exposure to negative publicity or percentage of challenged jurors that illustrates a corruptive atmosphere mandating venue transfer. Id.; Hoffman, 98-3118 at p. 8, 768 So.2d at 555; Wessinger, 98-1234 at p. 7, 736 So.2d at 173. Therefore, we have advised that a comparison to other cases is proper when analyzing the question of whether a change of venue was required due to the number of prospective jurors whose ability to be impartial had been corrupted by...