State v. Gomez
| Decision Date | 01 October 1975 |
| Docket Number | No. 56344,56344 |
| Citation | 319 So.2d 424 |
| Parties | STATE of Louisiana v. Gustavo Quiles GOMEZ. |
| Court | Louisiana Supreme Court |
Lawrence B. Fabacher, II, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Robert B. Evans, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, Keith S. May, Research Atty., for plaintiff-appellee.
Defendant was arrested by customs agents at the New Orleans International Airport when they discovered in his suitcase a green vegetable material, later identified at trial by an expert witness to be marijuana. After being charged, tried and convicted of the crime of possession with intent to distribute a controlled dangerous substance, defendant was sentenced to imprisonment at hard labor for ten years.
On appeal, defendant urges that two bills of exceptions reserved at trial necessitate reversal of his conviction. The first bill relates to the dismissal of a prospective juror by the trial judge Ex proprio motu before any of the prospective jurors had been submitted to voir dire examination. The record reflects that as the bailiff was reading the names of those who had been called for jury duty, he informed the judge that one Mrs. Christine Billedeau was present with her baby. The bailiff then told the judge that Mrs. Billedeau had no one to care for the baby and the judge then ruled: 'Let the record reflect that the lady was present and she has a small baby and the baby was crying in the court and there isn't anyone to take care of the child and the court excused the lady.'
Defendant objects that he was not given an opportunity to examine the juror and argues that the trial court should have gone further to determine definitively whether the prospective juror was in fact subject to disqualification on account of hardship. La.C.Cr.P. art. 786 provides in pertinent part:
'The court, the state, and the defendant shall have the right to examine prospective jurors. * * *'
However, La.C.Cr.P. art. 783 also says in part:
* * *'
The apparent conflict between these two Code articles has been resolved by the jurisprudence by allowing the trial judge, within his sound discretion, to release prospective jurors In advance of voir dire examination; the trial judge's decision in this matter is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Witherspoon, 292 So.2d 499 (La.1974); State v. Jack, 285 So.2d 204 (La.1973); State v. Williams, 258 La. 801, 248 So.2d 295 (La.1971).
The interpretation given by the cases is supported by revisors' comment (b) to La.C.Cr.P. art. 783. The comment, quoted below, indicates that the trial judge is to be vested with discretion to dismiss members of the petit jury venire before they are called for examination in a particular case:
'Official Revision Comment
'(b) This article, as well as the source articles, contains a near contradiction. That is, there is some conflict between the defendant's right to have at hand the entire venire, and the court's authority to excuse a large part of the venire in advance. However, the right of the judge to excuse in advance is essential, since many persons chosen for the venire have valid reasons for being excused. The discretion of the judge must be relied upon to avoid abuse, and abuse is reversible error.
Defendant has failed to establish that the facts of the instant case demonstrate an abuse of discretion by the trial judge. The prospective juror, Mrs. Billedeau, was forced to bring her infant to the courtroom in order to appear when summoned for jury duty. From the record it appears that the child's crying was disruptive to the jury selection proceedings and certainly would have been intolerable during trial. The judge ascertained through the bailiff that Mrs. Billedeau had no one to care for the child during the trial. These facts convince us that the trial judge did not exceed the bounds of proper discretion in dismissing the prospective juror.
As additional support for his first bill of exceptions, defendant cites article I, § 17 of...
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State v. Sheppard
...examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Gomez, 319 So.2d 424 (La.1975). In the instant case, beyond defendant's allegation that the trial court abused its discretion in excusing prospective veniremen ......
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State v. Edwards, 64204
...be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Sheppard, supra; State v. Gomez 319 So.2d 424 (La.1975) Defense counsel did uncover what appeared to be two instances of abuse of discretion: a dislike of Baton Rouge traffic on the ......
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State v. Collins
...the court, the state, and the defendant shall have the right to examine prospective jurors. The Louisiana Supreme Court, in State v. Gomez, 319 So.2d 424 (La.1975), addresses the interplay of these articles. The apparent conflict between these two Code articles has been resolved by the juri......
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State v. Cass
...disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Sheppard, supra ; State v. Gomez, 319 So.2d 424 (La.1975). In the instant case, defendant makes no such showing; he merely makes the bare allegation that the trial judge abused his disc......