State v. Essex

• Decision Date: 05 May 1993
• Docket Number: No. 24,781-KA,24,781-KA
• Citation: 618 So.2d 659
• Parties: STATE of Louisiana, Appellee, v. David ESSEX, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 659

618 So.2d 659

STATE of Louisiana, Appellee, v. David ESSEX, Appellant.

No. 24,781-KA.

Court of Appeal of Louisiana Second Circuit.

May 5, 1993.

James E. Beal, Jonesboro, for appellant.

Richard Ieyoub, Jr., Atty. Gen., Baton Rouge, Walter E. May, Jr., Dist. Atty., Douglas L. Stokes, Asst. Dist. Atty., Jonesboro, for appellee.

Before SEXTON, HIGHTOWER and VICTORY, JJ.

HIGHTOWER, Judge.

A jury found David Essex guilty as charged of aggravated kidnapping, LSA-R.S. 14:44. Subsequently, the conviction resulted in a mandatory sentence of life imprisonment without benefit of probation, parole or suspension. On appeal, defendant asserts nine assignments of error. For reasons hereinafter expressed, we affirm the conviction and sentence.

FACTS

At about 2:30 p.m. on March 20, 1992, when Wanda Atkins returned from work, she discovered defendant in her rural Jackson Parish home, brandishing a pistol he had found in the residence and stating his intention to await the arrival of her husband for whom he had worked several years earlier. During the ensuing hour, Essex allowed his victim to water her houseplants and even joined her in a card game. At all times, however, he remained armed with the weapon.

Wanda's husband, H.E. "Monk" Atkins, arrived around 3:30 p.m. Upon parking and then alighting from his vehicle in an adjoining garage, he observed his wife beating on a nearby window. Essex, standing next to Wanda, immediately dragged her at gunpoint to a door opening onto the carport, while threatening to kill his prisoner unless Monk followed instructions to enter the residence. After the husband complied, defendant soon demanded cash and the couple's assistance in leaving the Jackson Parish area. Discussions about how much money could be obtained, and continued threats of harm to the wife, soon led Monk to agree to retrieve $4,000 from a local bank while his spouse remained a hostage with their malefactor.

Upon arriving at the financial institution, located in Ruston (Lincoln Parish), Monk summoned personnel from the sheriff's office. Thereafter, he and law enforcement authorities from Lincoln and Jackson Parish assembled near the residence. Then, with several officers dispatched in areas surrounding the house, one of the deputies donned the husband's hat and drove his truck partially into the driveway of the Atkins home. In an effort to lure defendant outdoors, the imposter stopped the vehicle and, waiving an envelope, yelled for Essex to come get the money. Although the plan proved unsuccessful, subsequent telephone communications eventually led the offender to exit the residence and surrender.

DISCUSSION

Challenges for Cause

Defendant's first three assignments of error complain that the trial court denied his challenges for cause directed at two prospective jurors, and also sustained a state request to excuse another veniremember for cause.

LSA-C.Cr.P. Art. 797, directed at challenges for cause, pertinently provides:

The state or the defendant may challenge a juror for cause on the ground that:

....

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

....

(4) The juror will not accept the law as given to him by the court....

The trial court is vested with broad discretion in ruling on a challenge for cause, and its ruling will not be disturbed on appeal absent a showing of abuse. State v. Haynes, 514 So.2d 1206 (La.App. 2d Cir.1987). Even where a veniremember has voiced an opinion seemingly prejudicial to the defense, a trial judge's refusal to excuse the individual for cause is not an abuse of discretion where, upon further inquiry or instruction, the person demonstrates a willingness and ability to decide the case impartially pursuant to the law and evidence. Id.

Essex complains that prospective juror Cheryl Lamkin indicated that, having read about the case in a local newspaper, she would have difficulty limiting her decision to the evidence adduced at trial. Actually, in the earlier phase of voir dire examination, Lamkin assured the judge that she could arrive at her verdict solely through what she heard in the courtroom. Later, to defense counsel, she stated that she would likely remember some of the news article. Finally, after the challenge, and in response to extensive questioning by the court, Lamkin again confirmed that she would base any decision upon the evidence presented. Thus, the district judge did not abuse his broad discretion by refusing to excuse the prospective juror for cause. Cf. State v. Lee, 559 So.2d 1310 (La.1990); State v. Scriber, 605 So.2d 661 (La.App. 2d Cir.1992); State v. Pettaway, 450 So.2d 1345 (La.App. 2d Cir.1984), writ denied, 456 So.2d 171 (La.1984).

Defendant also argues that Paggett, ¹ another potential member of the jury, showed a willingness to convict based on evidence insufficient to prove guilt beyond a reasonable doubt. When questioned whether he could acquit if the state proved "90 percent of their case," this individual expressed reservations. Yet, during further inquiry by the defendant and later by the district judge, Paggett specifically stated he understood that guilt depended upon the state successfully proving every element of its case beyond a reasonable doubt. The trial court found the venireman's responses to be satisfactory and rejected the defense challenge for cause. In our view, that decision did not constitute an abuse of discretion. Cf. State v. Widenhouse, 582 So.2d 1374 (La.App. 2d Cir.1991), writ denied, 586 So.2d 567 (La.1991); State v. Pettaway, supra. ²

Quite importantly, too, defendant suffered no prejudice from the denial of these two challenges. Neither Paggett nor Lamkin actually served on the jury. Furthermore, while the record indicates the state and defendant utilized a total of seventeen peremptory challenges in impaneling the jury, Essex apparently did not exhaust all his peremptory challenges. ³ Indeed, the trial judge implied as much when, at the conclusion of the selection process, he requested that each side exercise any other peremptory challenges if they so desired. Nor has the defense noted any other objectionable juror that could not be successfully excused. Thus, even any assumed error in the lower court's ruling is harmless.

Another assignment concerns the sustention of the state's challenge for cause directed at prospective juror Sandra Jackson. We agree, however, with the district court's resolution of the matter. This individual indicated that the mandatory life sentence would likely influence her decision of whether to convict. Cf. State v. Jones, 408 So.2d 1285 (La.1982), noting that a determination not to find guilt, due to a mandatory penalty, obviously disqualifies a veniremember pursuant to LSA-C.Cr.P. Art. 797. Moreover, Essex failed to show, as required by LSA-C.Cr.P. Art. 800(B), that the sustained challenge allowed the prosecution more peremptories than otherwise authorized by law. Hence, the ruling affords no basis for complaint.

Accordingly, these three assignments lack merit.

Other Crimes

By his fourth and seventh assignments of error, defendant complains that the trial court denied his motions for mistrial premised upon contentions that the state's evidence referred to "other crimes."

During trial questioning, Wanda Atkins responded negatively when asked whether she had given the intruder "permission to be in the house." Defendant objected, contending the colloquy disclosed the unauthorized entry of an inhabited dwelling. Also, near the conclusion of the state's case, the chief deputy for the Jackson Parish Sheriff's Office identified, among clothing and other items taken from Essex upon arrest, two cigarette pouches containing coins. Wanda, without objection, had previously testified that she owned both of the small purses. The accused argued, however, that introduction of these two exhibits again constituted evidence of other crimes, presumably burglary. The trial judge overruled both defense objections and also, in each instance, denied a motion for mistrial.

LSA-C.Cr.P. Art. 771 is the controlling provision when improper references are made by a victim or law enforcement officer. State v. White, 593 So.2d 882 (La.App. 2d Cir.1992), and authorities cited therein. That statutory provision pertinently states:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

....

(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Mistrial, a drastic remedy, is warranted only when substantial prejudice would otherwise result to the accused, and the determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. White, supra, and authorities cited therein.

In State v. Brewington, 601 So.2d 656 (La.1992), our supreme court reaffirmed its approval of "the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it." Given a close relationship of the conduct in time and location, the defendant is...