State v. Francis

• Decision Date: 08 September 1981
• Docket Number: No. 80-KA-2912,80-KA-2912
• Citation: 403 So.2d 680
• Parties: STATE of Louisiana v. Archie FRANCIS.
• Court: Louisiana Supreme Court

Page 680

403 So.2d 680

STATE of Louisiana v. Archie FRANCIS.

No. 80-KA-2912.

Supreme Court of Louisiana.

Sept. 8, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Michael Harson, Byron Legendre, Asst. Dist. Attys., for plaintiff-appellee.

Fredric G. Hayes, William Burris, Lafayette, for defendant-appellant.

DIXON, Chief Justice. ^*

Defendant was arrested on May 15, 1979 and charged with the fatal shooting of two men on April 8, 1979 at the Tip Top Club in Broussard, Louisiana. He was convicted of two counts of first degree murder (R.S. 14:30) and sentenced to life imprisonment on each count. He appeals, relying on three assignments of error. We find that the assignments lack merit and affirm the convictions and sentences.

Defendant first claims that the court wrongfully allowed the prosecutor to exclude prospective jurors on the basis of race, denying him his right to a trial by a jury representative of his community. Defendant presents no evidence to substantiate this allegation. This court has repeatedly held that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is systematic exclusion over a period of time. The defendant bears the burden of making a prima facie showing of such exclusion; once he does so, the state must show that there was no discrimination. State v. Washington, 375 So.2d 1162 (La.1979); State v. Bias, 354 So.2d 1330 (La.1978). This position accords with Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing by the defense that preemptory challenges were used to exclude members of a minority in a particular case was not sufficient to establish a violation of the Fourteenth Amendment's Equal Protection Clause. To present a constitutional question, the defendant must show systematic exclusion of the minority by the state over a period of time through the use of peremptory challenges. The record must show "with (some) acceptable degree of clarity ... when, how often, and under what circumstances the prosecutor alone has been responsible for striking (the minority)." 380 U.S. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 775.

In State v. Washington, supra, and State v. Brown, 371 So.2d 751 (La.1979), we found objective evidence of systematic exclusion of blacks through the use of peremptory challenges by the prosecutor over an extended period of time. However, the record in this case does not reveal any other instances of exclusion by this prosecutor. The state points out that this is the first trial conducted by this prosecutor. Defendant has not established that there was discrimination in this particular case, as it is not clear from the record that there were no black persons sworn.

Defendant also claims that he was denied a trial by a representative jury because the court excused for cause jurors who stated that they were opposed to the death penalty. Since the jury did not recommend and the court did not impose the death penalty, the defendant cannot validly claim that the jury selection procedure operated to his prejudice. State v. George, 371 So.2d 762 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A review of the voir dire examination shows that every juror who indicated that he had religious or conscientious scruples against the death penalty was asked if he would automatically vote against the imposition of capital punishment without regard to any evidence that might be presented at trial. Those jurors who responded positively to this question were excused by the court. This procedure conforms to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and C.Cr.P. 798. In Witherspoon, the United States Supreme Court held that a defendant sentenced to death would be deprived of his life without due process of law "if the jury that imposed or recommended (the death sentence) was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 785. However, the court found no constitutional bar to excluding jurors...