State v. Gabriel
| Decision Date | 15 March 1989 |
| Docket Number | No. 87-KA-366,87-KA-366 |
| Citation | 542 So.2d 528 |
| Parties | STATE of Louisiana v. Gordon GABRIEL. |
| Court | Court of Appeal of Louisiana — District of US |
John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Office of the Dist. Atty., Gretna, for plaintiff-appellee.
Dorothy M. Webb, New Orleans, for defendant-appellant.
Before GAUDIN, GRISBAUM and DUFRESNE, JJ.
The defendant, Gordon Gabriel, was charged by bill of information filed on October 28, 1983 with armed robbery in violation of LSA-R.S. 14:64. The defendant was arraigned and he pled not guilty. Trial was conducted on March 20, 1984, but a mistrial resulted when the jury failed to agree on a verdict. A second trial began on September 10, 1985. However, the next day again a mistrial was granted. The defendant went to trial in April 1986 and was found guilty as charged. The defendant's motion for directed verdict of acquittal, motion for arrest of judgment and motion for new trial were denied. A second motion for new trial and for directed verdict of acquittal were also denied. The trial court then imposed a sentence of five years at hard labor without benefit of parole, probation or suspension of sentence. This appeal followed and the appellant has urged fourteen assignments of error for our review.
On the evening of July 2, 1983, Mr. James Landrem, his wife and daughter went to dinner in Kenner. Afterwards, at about 10:00 p.m., the three drove to the airport to pick up the daughter's fiance who was returning to town from a golf tournament. Returning home to River Ridge at approximately 11:40 p.m., Mr. Landrem pulled the car alongside the curb in front of his house to park it for the night. As he did so, a beige-gold Buick LaSabre pulled alongside his car. The car pulled to the front at an angle, blocking Landrem's car. The passenger of the car got out and walked briskly to Landrem's car. He pointed a revolver at Landrem's window and ordered him to roll it down. When Landrem complied, the gunman put the revolver to his head and ordered all the occupants of the car to surrender their valuables. The robber then took six or seven hundred dollars from Mr. Landrem, his daughter's purse containing cash and jewelry, and her fiance's wallet with approximately seventy dollars in it. The gunman returned to the car and it sped away.
During the robbery, Mr. Landrem was able to observe the license plate of the perpetrators' vehicle. He subsequently gave the information to the police who traced the registration to the defendant. Several months later the defendant was apprehended and a photograph obtained. A photographic lineup was prepared and presented to the victims. Both Mr. and Mrs. Landrem identified Gordon Gabriel as the driver of the vehicle involved in the robbery.
Gordon Gabriel testified that he sold the Buick prior to the robbery. He declared that on the night of the offense he was playing drums at home.
Subsequent owners of the car also testified at trial. A Ms. Carol Youngblood asserted that she was the owner of the vehicle at the time of the armed robbery and that only she, her sister and her boyfriend Jesse Griffin used the car.
The trial court erred in denying defendant an opportunity during voir dire to question prospective jurors on defense to be presented.
During voir dire, defendant attempted to question two prospective jurors on whether they had any "problem" with the alibi defense, i.e., whether they had any problem believing someone who would testify that he was somewhere else when the crime occurred. The state's objection to the questions was sustained by the trial court.
A defendant on trial is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. Louisiana Constitution of 1974, Article I, Section 17. C.Cr.P. art. 786 provides in part that The purpose of voir dire is to determine the qualifications of prospective jurors by testing their competency and impartiality and to discover bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421 (La.App. 1st Cir.1985), writ denied, 468 So.2d 570 (La.1985); State v. Graham, 486 So.2d 1139 (La.App. 2nd Cir.1986), writ denied, 493 So.2d 633 (La.1986). Voir dire examination may not be used to pry into prospective juror's opinions concerning evidence to be offered at trial. State v. Burton, supra; State v. Coleman, 486 So.2d 995 (La.App. 2nd Cir.1986), writ denied, 493 So.2d 634 (La.1986), State v. Young, 480 So.2d 434 (La.App. 4th Cir.1985).
It is highly improper to ask a potential juror if he would act in a particular way under certain circumstances because such a question seeks to commit him in advance as to his verdict. That type of question is related to the merits of the case rather than to the proper subject of voir dire--the qualifications of the juror. [citations omitted]. State v. Young, supra at 436.
Here the defendant sought to determine whether a potential juror would believe his alibi testimony. This question inquires into the merits of the case and not into that potential juror's qualifications. Accordingly, the questions were not within the scope of voir dire and the state's objection to the questions were properly sustained by the trial court.
This assignment lacks merit.
The trial court erred in not granting a mistrial when juror William E. Peters revealed his acquaintance with one of the victims.
During the course of the trial when the state called Tommy Moore to the stand, one of the jurors realized that he knew the witness and he informed the court of that fact. The defendant moved for a mistrial or admonition as per C.Cr.P. art. 771, which was denied by the trial court. The state indicated it would not object if the juror was removed and the alternate impaneled. However the defendant stated that such a remedy was not procedurally proper.
C.Cr.P. art. 789 provides:
The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who became unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. The regular peremptory challenges allowed by law shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors. An alternate juror who does not replace a principal juror shall be discharged when the jury retires to consider its verdict.
A trial judge may disqualify a juror upon a finding of blatant prejudice and partiality. State v. Marshall, 410 So.2d 1116 (La.1982). A juror may be disqualified when it becomes apparent that his acquaintance and/or relationship with a witness prevents him from being impartial State v. Sepcich, 473 So.2d 380 (La.App. 5th Cir.1985), after remand for resentencing, 485 So.2d 559 (La.App. 5th Cir.1986), State v. Nolen, 461 So.2d 1073 (La.App. 5th Cir.1984); State v. Maillian, 464 So.2d 1071 (La.App. 1st Cir.1985), writ denied, 469 So.2d 982 (La.1985).
Here, had the trial court determined that the juror could not be impartial, the appropriate remedy would have been to dismiss the juror and impanel the alternate. When this possibility was discussed at trial, the defendant stated that he felt that such a remedy was procedurally improper.
Nevertheless, the juror was questioned regarding his relationship with the witness and he stated that the witness was a student at the school where the juror taught and that they only had a passing acquaintance with each other. Thus, this acquaintance was not such that would have rendered the juror incapable of impartiality.
This assignment is without merit.
3. The trial court erred in failing to grant a mistrial when it was learned, for the first time during the third trial that, unknown to defendant, at least one other photographic line-up was held.
4. The trial court erred in denying defendant's motion for service of an instanter subpoena on Officer Hubie Doyle.
11. The trial court erred in denying defendant access to proper discovery material.
In assignment of error number eleven, the defendant alleges that the trial court failed to provide him discovery of certain items, namely:
1) Any information relative to the arrests of defendant for the instant offense;
2) Any information relative to the arresting officers;
3) Any information relative to the alleged arrest warrant;
4) Any information relative to the interrogations of defendant;
5) Any information relative to physical line-ups;
6) Important information relative to the originally reported photographic line-up; and
7) Any information relative to other photographic line-ups.
It appears to be the defendant's contention that the requested information constituted Brady material and therefore, the state should have provided the material to the defendant.
In assignment of error number four he alleges error in the trial court's failure to issue an instanter subpoena for Officer Hubie Doyle, who initially received the report of the officer who investigated...
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...State v. Knighton, 436 So.2d 1141 (La.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); State v. Gabriel, 542 So.2d 528 (La.App. 5 Cir.1989), writ denied, 558 So.2d 566 (La.1990). Moreover, the trial judge's comments on the evidence have been held to be harmless err......
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