State v. Gibson

• Citation: 505 So.2d 237
• Decision Date: 08 April 1987
• Docket Number: No. CR,CR
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Barry Ray GIBSON, Defendant-Appellant. 86-897.
• Court: Court of Appeal of Louisiana — District of US

Page 237

505 So.2d 237

STATE of Louisiana, Plaintiff-Appellee, v. Barry Ray GIBSON, Defendant-Appellant.

No. CR 86-897.

Court of Appeal of Louisiana,

Third Circuit.

April 8, 1987.

Writ Denied June 12, 1987.

Julie E. Cullen, Stephen James Ledet, Opelouas, for defendant-appellant.

Morgan Goudeau, III, Dist. Atty., Jack Burson, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.

Before LABORDE and YELVERTON, JJ., and CULPEPPER, J. Pro Tem. ^*

LABORDE, Judge.

Defendant, Barry Ray Gibson, was found guilty by a jury of twelve of first degree murder, a violation of LSA-R.S. 14:30. Defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. He appeals raising six (6) assignments of error.

FACTS

On October 19, 1984 Wanda Gail Guidry was at A.J.'s Bar in Opelousas. At about 2:00 a.m., closing time, she procured a ride to the "Plaza" with Vaughn Godeau. There was some problem with Mr. Godeau providing a ride home for Ms. Guidry; so she got a ride with defendant. Defendant did not drive her home as Ms. Godeau wanted to go to a friend's home.

Defendant, who had been drinking, had a rifle in his car and a pistol on the front seat. Ms. Guidry and defendant drove to "the hill," a black residential area in Opelousas, and at about 3:20 a.m. picked up a black man. The black man, later identified as Warren Myers, ¹ was walking to Port Barre when he was told to get in the car by defendant.

An altercation arose during the trip. Defendant stopped on the shoulder of Hwy. 190, pulled Mr. Myers from the car, and beat him with a gun. Defendant demanded money from the victim who had no money to give. During the beating, defendant's gun broke. The victim was forced back into the car. Defendant drove to a deserted road. Defendant again forced the victim from the car. He commanded the victim to lay face down on the ground. Defendant then took aim and fired two shots into the head of Mr. Myers.

After the execution, defendant threatened to kill Gail Guidry and her children if she mentioned the murder to anyone. When confronted by law officers, Ms. Guidry admitted her knowledge and assisted with the investigation.

Defendant's wife gave defendant's gun to the police, a .22 caliber gun, the same caliber gun as that used to kill Mr. Myers. The gun is also damaged--the cylinder will not rotate. The test shells fired from the gun were similar in type and class characteristic to those fragments removed from the body of the victim.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial court erred in denying the defense's challenge for cause of juror Willie Stoute. Defendant contends that Mr. Stoute should have been excused under La.C.Cr.P. art. 797(2) and (3) because he was a social acquaintance and had previously spoken to the victim, and because he is a good friend of the victim's family. Defendant also contends that Mr. Stoute should have been excluded for cause because he is a retired police officer.

A defendant may only complain about a trial court's denial of his challenge for cause if he has exhausted all his peremptory challenges. State v. Smith, 430 So.2d 31 (La.1983); State v. Heard, 408 So.2d 1247 (La.1982). In this case, defendant exhausted all of his peremptory challenges and can therefore raise the issue of an erroneous denial of his challenge for cause. The trial judge has wide discretion in ruling on a challenge for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Gintz, 438 So.2d 1230 (La.App. 3d Cir.1983).

A charge of bias may be removed if a witness is rehabilitated. State v. Williams, 447 So.2d 495 (La.App. 3d Cir.), writ denied, 450 So.2d 969 (La.1984). A prospective juror can be rehabilitated if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. State v. Broadway, 440 So.2d 828 (La.App. 2d Cir.1983).

Mr. Stoute stated that he would have no problem being on the jury, that he could put the fact he knew the victim and his family completely out of his mind and decide the case solely on the evidence he would hear. Stoute stated that he had not visited at the victim's home, nor had the victim visited at his home. Mr. Stoute averred that he had not as yet determined who killed Warren Myers. Stoute agreed to find defendant not guilty if the state failed to present evidence of guilt beyond a reasonable doubt. Mr. Stoute stated that he could be fair and that he would weigh all the evidence given in court.

The mere statement by a juror that he could be fair and impartial is not binding on the trial court. State v. Shelton, 377 So.2d 96 (La.1979). The trial judge witnessed the prospective jurors first hand, and he was in the best position to determine their veracity. The trial judge did not abuse his wide discretion in finding that this juror was impartial, and that his relationship with the victim would not influence him in arriving at a fair verdict.

Defendant also contends that this juror's link to law enforcement would impair his ability to be fair. Mr. Stoute had been an auxiliary policeman and knew some of the officers investigating the case.

In State v. Valentine, 464 So.2d 1091 (La.App. 1st Cir.), writ denied, 468 So.2d 572 (La.1985), the appellate court found that the trial court had not abused its discretion in accepting as a fair and impartial juror a woman who worked as an officer for the Department of Corrections. The juror had indicated that she would have no trouble being objective in determining guilt or innocence, or weighing the credibility of police officers who testified. A relationship to law enforcement is not alone grounds for a challenge for cause. State v. Smith, 430 So.2d 31 (La.1983); State v. Heard, 408 So.2d 1247 (La.1982).

Mr. Stoute stated he could evaluate the police testimony just as he would evaluate anyone else's. Close scrutiny is required before a prospective juror who has been in law enforcement is allowed on a jury. State v. Lewis, 391 So.2d 1156 (La.1980). Here, Mr. Stoute's connection with law enforcement was considered and he withstood this scrutiny.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in accepting the state's challenge for cause of Ms. Mildred Cortez. The defense argues that Ms. Cortez was improperly exluded. She admitted that she knew defendant's grandfather, but that she could be fair and impartial and that she could consider the death penalty in some situations.

The threshold question is whether the State used all of its peremptory exceptions. If the State has not used all its peremptory exceptions, the defense cannot complain of the trial court's granting of the State's challenge for cause. La.C.Cr.P. art. 800(B). Here, the State had exhausted its peremptory challenges.

The trial judge has wide discretion in ruling on a challenge for cause, and his ruling will not be disturbed absent a showing of abuse of discretion. Gintz, 438 So.2d at 1234.

In State v. Forman, 466 So.2d 747 (La.App. 4th Cir.1985), a juror stated that he and the defendant were friends and he saw the defendant often. The "relationship" in Forman was that the defendant "went out" with a friend of the juror's girlfriend's sister. The court considered this remote relationship, with the fact that the juror did not want to sit on the case, to excuse this juror for cause.

This case involves as tenuous a relationship as Forman's. A remote relationship may exist in our case, but the prospective juror, Ms. Cortez, expressed doubt as to her ability to be impartial. A charge of bias may be removed if a witness is rehabilitated. Williams, 447 So.2d at 503. The decision on whether a prospective juror has been rehabilitated rests with the court. Broadway, 440 So.2d at 832.

The defense attempted to rehabilitate Ms. Cortez and did receive some statements to the effect that she could be fair and impartial. But, in response to the prosecution's last question:

Q. "I want to give you a simple hypothet, that you've got a situation here where you've got all of the bad, aggravating circumstances that the law requires to consider imposing the death penalty, and you've got some really bad facts as to how the crime was done, and you take a vote in the jury room, and it comes down to the fact that it is going to be up to your vote to determine whether or not the defendant gets the death penalty. Could you, if the facts totally justified it under the law, cast that vote?"

A. "I don't know."

The trial judge did not abuse his discretion in excusing Mildred Cortez for cause; therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that there was insufficient evidence presented to convict him of first degree murder. Specifically, defendant contends that there are discrepancies in the stories of Wanda Gail Guidry, and the facts derived from the pathologist, regarding the path of the bullets which killed Warren Myers. The pathologist, Dr. Emile Laga, stated that the bullet traveled downward 30-45 degrees, while Ms. Guidry stated the defendant stood over the victim when he shot him. The defense argues that this discrepancy leaves the remainder of Ms. Guidry' testimony tainted and inadequate to prove that defendant murdered Warren Myers.

The standard of review to determine if the prosecution has proven the essential elements of its case was set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This test is whether any rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense proved beyond a reasonable doubt.

Wanda Gail Guidry testified that she had accepted a ride from the defendant around 2:00 a.m. on the night of the killing. Guidry testified that defendant had said he was "going to kill hisself a...