State v. Brown

Decision Date21 May 1979
Docket NumberNo. 63210,63210
Citation371 So.2d 751
PartiesSTATE of Louisiana v. Andrew K. BROWN.
CourtLouisiana Supreme Court

C. Frank Holthaus, Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.

CALOGERO, Justice.

The major issue presented in this appeal is whether the trial judge erred when he refused to grant a defense motion to quash the selected jury panel based upon the prosecution's systematic exclusion of blacks from this jury and prior petit juries.

Defendant, Andrew K. Brown, was found guilty of attempted manslaughter, guilty of possession of a firearm after having been convicted of a felony and guilty of carrying a concealed weapon after having been convicted of a felony; the jury returned a not guilty verdict in connection with a charge of attempted murder. The charges arose out of Brown's possession and use of a gun on October 26, 1976, when he allegedly fired numerous shots, striking a woman with whom he had formerly lived and her female companion. Brown was sentenced as an habitual offender to prison terms of ten years, five years and ten years respectively, the latter two sentences to be served without benefit of parole, probation or suspension of sentence (as prescribed by R.S. 14:95.1); all the sentences were ordered to run consecutively.

Defendant, a black man, was convicted by an all white twelve member jury. In the process of selecting the jury, the assistant district attorney, Mr. Ralph Roy, employed only five peremptory challenges, all against blacks, thereby securing the all white jury which tried this case. Before overruling defendant's motion to quash, the trial judge allowed defense counsel an opportunity to prove systematic exclusion. The defense produced the testimony of two attorneys. An East Baton Rouge Parish attorney practicing with the Public Defender's Office stated that in a case he recently tried against Mr. Roy, State v. Willie Joe Washington (No. 63,037 on our docket, argued March 8, 1979), Mr. Roy used his twelve peremptory challenges to exclude the first twelve blacks called on voir dire examination. In that case a thirteenth black remaining on the petit jury venire after the state had exhausted all of its peremptory challenges was selected. No state peremptory challenges were used to exclude whites.

Another Baton Rouge attorney testified it appeared to him that in recent cases he had tried against Mr. Roy that blacks were often peremptorily challenged. He could not recall Mr. Roy exercising peremptory challenges against whites in recent cases. In his last trial against Mr. Roy involving a black defendant, there were no blacks on the jury although there were blacks on the venire; Mr. Roy exercised peremptory challenges against the blacks. In another recent trial in which this witness participated which involved a white defendant, this same prosecutor also exercised his peremptory challenges against blacks in the venire with the result that no blacks served on the jury. The attorney testified that he did not exercise peremptory challenges against blacks in either trial. Asked if he had any opinion with respect to Mr. Roy's exclusion of blacks from the jury the attorney responded, ". . . (M)y opinion would be that . . . it's systematic exclusion."

After a short cross-examination of this attorney by the prosecutor the court noted that the last jury trial before it was a negligent homicide case in which both defendant and victim were black and that on the six person jury two blacks had served. The assistant district attorney in that case, however, was not the same as in the case at bar. Later in the course of the trial, while the jury was deliberating, further evidence regarding the composition of other East Baton Rouge Parish juries was furnished defendant's counsel by the trial judge and read into the record. In one case, involving the trial of one Elijah Pickett before a six member jury, three blacks and three whites, the prosecution was conducted by Mr. Roy. There is no record indication of the nature of the case, the race of the defendant or other particulars. Further information furnished involved the Washington case to which this opinion has previously alluded and the previously noted negligent homicide case tried by a six person jury including two blacks in which the state was represented by a different prosecutor. The prosecutor, Mr. Roy, did not testify in this case, nor did he make any statement for the record concerning whether he had been accustomed to systematically excluding blacks from the petit jury panels. 1

The foregoing fully summarizes the record in the instant case. However, also pertinent to this issue are the facts noted in a concurrence to State v. Haynes, 339 So.2d 328 (La.1976). In that case, decided on November 8, 1976, we affirmed a conviction wherein a complaint was made of systematic exclusion of blacks from the petit jury through the use of peremptory challenges by the same prosecutor who tried this case. Two members of this Court concurred in connection with this issue, one of whom, noting among other things concern for the frequent recurrence of the identical complaint in many other cases appealed from East Baton Rouge Parish, stated:

"Since 1972 there have been eight cases from that district, including the present appeal, in which defendants alleged that the State exercised its peremptory challenges to exclude black veniremen from the petit jury. See, State v. Reed, 324 So.2d 373 (La.1976); State v. Curry, 319 So.2d 917 (La.1975); State v. Carter, 301 So.2d 612 (La.1974); State v. Veal, 296 So.2d 262 (La.1974); State v. Melton, 296 So.2d 280 (La.1974); State v. McAllister, 285 So.2d 197 (La.1973) (six blacks peremptorily challenged by the State but one black venireman accepted); State v. Smith, 263 La. 75, 267 So.2d 900 (1972).

Because these cases represent only a small number of those tried in East Baton Rouge Parish, I cannot say that this record alone indicates an historical system of discriminatory exclusion. However, these cases may trace the outlines of a pattern of exclusion, and if it can be demonstrated in a future case that the practice complained of has not been restricted to isolated instances, then the State should be required to establish that the exclusion of blacks is rooted in some other cause than racial discrimination. For, to exercise peremptory challenges solely on the basis of race without regard to legitimate trial-related objectives is to pervert the purpose of and abuse the broad discretion inherent in that procedure. See, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Three of the seven cases to which the foregoing portion of the concurring opinion in Haynes alluded were tried by the same prosecutor involved in this case. Since that decision in Haynes, we have reviewed no less than four East Baton Rouge Parish convictions involving this issue 2 (in addition to this case and State v. Washington, supra ), in two of which the prosecutor was the same as in the instant case. It appears that the caution expressed by the concurring justice in Haynes has not been heeded.

The majority of this Court has held that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is a Systematic exclusion over a period of time ; we impose upon the defendant the burden of establishing a prima facie showing of such exclusion. Once a defendant has done so, the state bears the burden of showing that there was no discrimination. State v. Bias, 354 So.2d 1330 (La.1978). In Bias, the Court noted its adherence to the test announced in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 959 (1965) in determining whether there was a systematic exclusion. In Swain, the United States Supreme Court held that a showing by the defense that peremptory challenges were used to exclude members of a minority In a particular case is not sufficient to establish a violation of the Fourteenth Amendment's Equal Protection Clause. However, where defendant can show a systematic exclusion of the minority by the state over a period of time through its use of peremptory challenges a constitutional question is presented. Swain implies that defendant must demonstrate that the prosecutor continually and consciously uses peremptory challenges to exclude blacks because of their race, requiring that the record show "with (some)...

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