State v. Davenport

• Decision Date: 16 January 1984
• Docket Number: No. 82-KA-1996,82-KA-1996
• Citation: 445 So.2d 1190
• Parties: STATE of Louisiana v. Zeno DAVENPORT.
• Court: Louisiana Supreme Court

Page 1190

445 So.2d 1190

STATE of Louisiana v. Zeno DAVENPORT.

No. 82-KA-1996.

Supreme Court of Louisiana.

Jan. 16, 1984.

Rehearing Denied Feb. 15, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Richard Carney, Asst. Dist. Atty., for plaintiff-appellee.

Donald R. Minor, Jeanette G. Garrett, Shreveport, Public Indigent Defender, for defendant-appellant.

DENNIS, Justice.

Defendant, Zeno Davenport, was convicted by a jury of attempted simple burglary of an inhabited dwelling, La.R.S. 14:62.2 and La.R.S. 14:27, adjudged to be a second offender, and sentenced to seven years at hard labor, with one-half year to be served without benefit of parole, probation or suspension of sentence. Defendant appealed and argued twelve assignments of error in this court. We conclude that these assignments are without merit and affirm his conviction and sentence.

On July 23, 1980, Marvin Butler returned home and found all the lights on. He walked around the house and discovered a back window broken out and the lock on one of the back doors broken. Entering the house, he saw that "everything was ramshackled." Mr. Butler testified that an eight track tape deck seemed to be the only item missing. Mr. Butler also said that defendant often came in the washeteria he managed, and, in fact, had been there the Saturday before and the Friday after the Wednesday burglary.

Defendant's mother testified on behalf of her son and said that he had been living with an uncle in Houston at the time of the crime on July 23, 1980. She stated that he left Shreveport in late May or early June of 1980 and returned on December 7, 1981. During defendant's apparent absence, a warrant was issued for his arrest in connection with the burglary. Not long after the time his mother said he returned, he was arrested.

Assignments of Error Numbers One, Three, Four and Five

Following an extensive voir dire examination of prospective jurors, Moore, Mille, Bradshaw and Grubb, defense counsel challenged each for cause. Upon the court's refusal to excuse Moore and Mille for cause, defense counsel challenged them peremptorily. After exhausting his peremptory challenges, defense counsel sought unsuccessfully to challenge Bradshaw and Grubb for cause and they were permitted to serve on the jury. We find that the trial court did not commit reversible error in failing to sustain the challenges for cause.

The prospective juror, Moore, vacillated in his responses. On the presumption of innocence, the following exchanges took place between the juror, counsel, and the court:

Mr. Minor: You would not want to have any question in your (sic) if the person was innocent before you found him not guilty? You would want to be certain of that?

Mr. Moore: Right.

Mr. Minor: You understand the law does not require that?

Mr. Moore: (Shakes head up and down.)

Mr. Minor: Understanding the law does not require that, would you still require the evidence to convince you of his innocence before you would vote?

Mr. Moore: Right.

* * *

* * *

The Court: Court's going to have to talk to Mr. Moore again. You didn't raise your hand while ago when I was talking to you. Let me first ask you if you would follow the law given to you by the Court at the close of the case, whatever the judge tells you is the law at the close of the case, would you follow those instructions?

Mr. Moore: Yes, sir.

The Court: If the judge instructed you that the test is to decide whether the State has proven beyond a reasonable doubt that the defendant is guilty and that there is no requirement for proof of innocence before you can vote not guilty, would you follow those instructions?

Mr. Moore: Yes, sir.

The Court: You appear to be giving two different answers, one to me and one to Mr. Minor, and I can't tell if you're confused as to the question.

Mr. Moore: I expect him to prove the man innocent to me.

The Court: That's what we're trying to tell you, sir, that the law does not require that to be done. The law says the entire burden is upon the State to prove guilt and places no burden on defendant to prove innocence. And that is the law as given to you.

Mr. Moore: Yes, sir.

The Court: Do you want to ask any more questions, Mr. Minor.

Mr. Minor: No, your Honor.

At this point, defense counsel challenged Mr. Moore for cause, and the trial judge disallowed the challenge.

A juror who is incapable of recognizing the defendant's presumption of innocence or who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve. State v. Nolan, 341 So.2d 885 (La.1977); State v. Thompson, 331 So.2d 848 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975); State v. Jones, 282 So.2d 422 (La.1973).

However, we cannot say that the trial judge erred in concluding that the oscillation between different views in Mr. Moore's testimony failed to demonstrate an inability or refusal to recognize the defendant's presumption of innocence. Although the juror wavered, the fluctuations in his testimony were not so repeated or pronounced as to make the court's acceptance of his final indication that he would follow the law unreasonable. Accordingly, we find this case distinguishable from State v. Nolan, supra, in which the juror's retractions, occasionally following considerable coaching by the court and the district attorney, were unreliable. The juror in Nolan did not appear to be steadfast in any of her opinions. On the contrary, this case is more analogous to those in which a juror has voiced an opinion seemingly prejudicial to the defense but subsequently, upon further inquiry or instruction by the court, has demonstrated willingness and ability to decide the case impartially, according to the law and evidence. See State v. Governor, 331 So.2d 443, (La.1976); State v. Johnson, supra. Admittedly, the rehabilitation of the prospective juror was not as full or firm as that which we would hope to find in the record, but the trial judge evidently decided that the juror, by his final answer, indicated a sufficient willingness to follow the law and accord the defendant the presumption of innocence, and we cannot say that he was clearly wrong in this judgment.

Prospective juror Mille was challenged for cause by the defense counsel because he stated that he would accept the opinion of an expert witness in the field of fingerprint evidence if the expert could prove the fingerprint taken off an object matched the defendant's print. He was not asked, however, whether he would continue to accept such an opinion in the face of contrary expert testimony or a demonstration that the opinion was based upon error or uncertain facts. Moreover, he later along with the other jurors being questioned, indicated that he understood and accepted the law that an expert's testimony is to be considered just as any other witness's testimony. Under these circumstances, we conclude that the trial judge did not err in refusing the challenge for cause.

Prospective juror Bradshaw initially expressed doubt about whether he would be influenced by the defendant's failure to testify but ultimately stated that he would follow the law as given to him by the trial judge and would not hold it against the defendant. There was no reversible error in the trial judge's refusal to challenge this juror.

Juror Grubb was challenged for cause on the basis of her prior employment as a secretary to one of the judges for the First Judicial District Court. Mrs. Grubb, who was employed as a housewife at the time of these proceedings, testified that she had no particular knowledge of the case and would not be influenced by her prior employment. On the basis of her testimony and the inherently nonpartisan nature of judicial secretarial employment, the trial judge denied the challenge for cause. The ruling was correct.

Assignment of Error Number Six

Defendant by this assignment complains of the trial judge's failure to grant a continuance. Defendant's alibi was that he was visiting relatives in Texas at the time of the offense. A continuance was granted the defendant in March, due to his assertion that his relatives would be available in May to testify. However, on May 10, the defendant informed the court that he was unable to announce that he was ready for trial because the two alibi witnesses had failed to come from Texas.

A motion for a continuance based upon the absence of a witness must state:

1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;

2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; ... La.C.Cr.P. art. 709(1), (2).

Davenport was unable to show that his relatives would ever be available to testify if a continuance were granted. The trial date had been continued from March 15 to May 10 specifically to allow the witnesses to appear. Defense counsel did not say at trial why the witnesses had not appeared, and did not show that they would appear if the trial were continued again. Under these circumstances, it was not error for the trial court to refuse to grant a continuance.

Assignments of Error Numbers Seven and Ten

In these assignments, defendant complains of the trial court's refusal to declare a mistrial after two allegedly prejudicial statements made during the testimony of state witnesses.

The victim, Marvin Butler, was asked how long he had known the defendant. His reply was: "He used to go down to my brother-in law's, lived down on Claiborne Street, and give him a lot of the trouble." The second allegedly prejudicial statement was made by Lt. Wood, a fingerprint expert. Lt. Wood testified that he "was asked to check known prints against latents obtained at the scene." Defendant argued that this statement led the jury to believe that since...