State v. Brown

• Decision Date: 17 May 1982
• Docket Number: No. 81-KA-2496,81-KA-2496
• Citation: 414 So.2d 726
• Parties: STATE of Louisiana v. Bessie L. BROWN.
• Court: Louisiana Supreme Court

Page 726

414 So.2d 726

STATE of Louisiana v. Bessie L. BROWN.

No. 81-KA-2496.

Supreme Court of Louisiana.

May 17, 1982.

Rehearing Denied June 18, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Edward E. Roberts, Jr., Donald Johnson, Asst. Dist. Attys., for plaintiff-appellee.

Eugene P. Cicardo, of Law Offices of Eugene P. Cicardo, James S. Gravel, of Gravel, Schley & Van Dyke, Alexandria, for defendant-appellant.

BLANCHE, Justice. ^*

Defendant was indicted by a grand jury in Rapides Parish for the offense of manslaughter. At arraignment, she entered a plea of not guilty and not guilty by reason of insanity. A sanity hearing was conducted and the trial court determined defendant had the mental capacity to proceed to trial. After a bench trial, defendant was found guilty as charged and sentenced to six years at hard labor. She appeals this conviction based on eleven assignments of error; however, assignments of error numbers 3, 4, 5, 6, 7, 9 and 10 were neither briefed nor argued and are, therefore, deemed abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

Assignment of Error Number 1

In this assignment defense counsel contends the trial court erred in denying his motion for a continuance in order to assemble a new petit jury venire. This motion was made when defense counsel learned from the clerk that the seal on the petit jury venire box was broken.

The provision governing safekeeping of the venire list is C.Cr.P. art. 416, which provides in pertinent part as follows:

The commission shall place the slips bearing the names of the petit jury venire for each week in a separate envelope. It shall seal each envelope and write thereon the words "Petit Jury Venire No. 1," "Petit Jury Venire No. 2," and "Petit Jury Venire No. 3." Each envelope shall be placed in a box labeled "Petit Jury Box."

This provision does not require that the petit jury venire box itself be locked or sealed in any manner. There was testimony indicating the box was customarily sealed; however, the parish jury commission officer stated that the box had been in the possession of one of the judge's new employees who apparently did not know it was usually sealed upon return to the clerk's office. The fact the seal on the box was broken did not necessitate a continuance to assemble a new petit jury venire unless there was an indication that the envelopes themselves had been tampered with.

The trial judge carefully inspected the sealed envelope containing the venire list and found it to be in good order and noted that the seal had not been disturbed in any way. Further, the deputy clerk of court who certified the envelope and signed it across the seal identified her signature and stated that it had not been tampered with.

C.Cr.P. art. 419 is also applicable and provides the following:

A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.

The jurisprudence allocates to the defendant the burden of establishing fraud or that some irreparable injury was caused by the selection process. State v. Liner, 397 So.2d 506 (La.1981); State v. Sheppard, 350 So.2d 615 (La.1977).

There is no indication that fraud was involved and the only injury alleged is that the broken seal influenced defendant's selection of a bench trial instead of a jury trial because of concern that the contents of the box had been tampered with. However, this choice was made after the trial court determined that the integrity of the envelope containing the venire list had not been disturbed; therefore, this argument is not persuasive.

This assignment of error is without merit.

Assignment of Error Number 2

By this assignment defendant alleges the trial court erred in denying her motion for a continuance in order to reconstitute the venire list.

Defendant alleges it was detrimental to the defense when ten male proposed jurors were released by the court without explanation because it resulted in an imbalance of the ratio of men to women in the proposed jurors. To support this contention, it is argued that a number of men, but very few women, hold jobs which carry automatic exemptions; therefore, the release of an additional ten men deprived defendant of the chance to be tried by her peers.

The court is authorized to excuse a person from jury service either prior to or after his selection for the general venire, jury pool or jury wheel if such service would result in undue hardship or extreme inconvenience. The court may take this action on its own initiative or on the recommendation of an official or employee designated by the court. See C.Cr.P. art. 783(B). We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Sheppard, supra. The trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Edwards, supra; State v. Sheppard, supra. The defendant makes no allegation of fraud or collusion nor does the record give any indication of such; therefore, the court's action in releasing the proposed jurors will not be disturbed.

This assignment of error is without merit.

Assignments of Error Numbers 8 and 11

By these assignments the defendant contends the state's evidence was insufficient to establish that the killing was not committed in self defense. A defendant in a homicide prosecution who asserts that he acted in self defense does not have the burden of proof on that issue because the state bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Collins, 306 So.2d 662 (La.1975).

R.S. 14:20 reads in pertinent part as follows:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger...

The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moody, 393 So.2d 1212 (La.1981).

On December 24, 1979 at approximately 3:05 p. m., the Alexandria Police Department received a phone call from the defendant, who informed the police that she had just shot her husband. ¹ When the police arrived at their house, they found the defendant in the living room and the body of John Smith on the kitchen floor. She was arrested and...