State v. Jackson

• Decision Date: 22 December 1993
• Docket Number: No. 25,455-KA,25,455-KA
• Citation: 629 So.2d 1374
• Parties: STATE of Louisiana, Appellee, v. Harold JACKSON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1374

629 So.2d 1374

STATE of Louisiana, Appellee, v. Harold JACKSON, Appellant.

No. 25,455-KA.

Court of Appeal of Louisiana, Second Circuit.

Dec. 22, 1993.

Bobby L. Culpepper, Jonesboro, for appellant.

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

Before HIGHTOWER, VICTORY and WILLIAMS, JJ.

HIGHTOWER, Judge.

A jury found Harold Jackson guilty as charged of possession of cocaine with intent to distribute, LSA-R.S. 40:967(A). Subsequently, the district court adjudicated defendant a second felony offender and, after an earlier appeal and remand, ordered incarceration at hard labor for fifteen years. Now before this court for a second time, he again presents numerous assignments of error. We affirm.

FACTS

On March 9, 1990, at approximately 2:00 a.m., officers of the Jonesboro Police Department observed a 1975 Chevrolet Nova weaving back and forth across the line dividing two northbound lanes of U.S. Highway 167. Suspecting the operator to be intoxicated, they stopped the vehicle after directing it into the parking lot of a bowling alley.

Police Chief McKinney ordered the woman driver out of the car, requested her license, and began a series of questions. Within moments, Officer Robinson instructed the three other occupants to exit and place their hands on the top of the vehicle. At about the same time, McKinney made some form of reference to drugs and directed the operator to empty her purse. Upon overhearing this, Jackson, previously positioned in the front passenger seat, bolted toward the bowling alley while holding a blue-gray jacket.

With Robinson in pursuit, Jackson fled around the side of the building and toward a wooded area. Officer Perry, another Jonesboro policeman who had just driven to the scene, also joined the chase. As defendant approached the woods, he fell and cast the jacket away. One of the officers then overtook Jackson, before further flight could occur.

Retrieving and checking the jacket, Robinson discovered three large clumps of a white substance, later identified as crack cocaine. After arresting all four persons, the officers conducted a search of the vehicle, uncovering a waist pouch containing Jackson's driving license, $372 in cash, $135 in food stamps, a money order for $40, a utility company refund check, and a black billfold enclosing a small set of postal scales.

After a jury convicted defendant of possession of cocaine with an intent to distribute, the trial court adjudged him a second felony offender and assessed fifteen years at hard labor. See LSA-R.S. 40:967; LSA-R.S. 15:529.1. Jackson, in his ensuing appeal, asserted thirty assignments of error. Without addressing the other complaints, we vacated the sentence due to the district judge's failure to rule on motions for a new trial and a post-verdict judgment of acquittal. See State v. Jackson, 614 So.2d 783 (La.App.2d Cir.1993). On remand, after denying those two requests, the lower court reimposed the identical minimum penalty. In the present appeal, the remaining specifications of error are again presented.

DISCUSSION

Juror Challenges for Cause

Defendant's first two assignments of error concern the denial of his challenges for cause directed at two prospective jurors. In order to succeed in such a complaint, he must show an erroneous denial of the challenge and, also, prejudice from the ruling. State v. Ross, 623 So.2d 643 (La.1993); State v. Vanderpool, 493 So.2d 574 (La.1986).

LSA-C.Cr.P. Art. 797 provides grounds for challenges for cause by the state or the defendant. In that the trial court is vested with broad discretion in addressing such an issue, its ruling will not be disturbed on appeal unless a review of the entire voir dire indicates abuse. State v. Ross, supra; State v. Essex, 618 So.2d 659 (La.App.2d Cir.1993); State v. Scriber, 605 So.2d 661 (La.App.2d Cir.1992); State v. Haynes, 514 So.2d 1206 (La.App.2d Cir.1987).

During voir dire, prospective juror Michael Wayne Chatham disclosed that he worked regularly from 4:00 p.m. until midnight and had been requested, by his employer, to report to the job as soon as his jury obligation ended each day. Defense counsel asserted that such a schedule would preclude adequate attention to courtroom duties. The state responded that the arrangement afforded plenty of time for rest before the daily 9:00 a.m. sessions. After questioning Chatham, who gave assurances he could serve without any problem, the court refused to excuse this individual. Defendant then exercised his second peremptory challenge.

Although mere inconvenience is not grounds for challenging a juror, State v. Wiley, 513 So.2d 849 (La.App.2d Cir.1987), writ denied, 522 So.2d 1092 (La.1988), the defense argues that the probable loss of sleep created impartiality, as enumerated at LSA-C.Cr.P. Art. 797(2). The trial judge, however, sufficiently satisfied herself that the prospective jury member would not be adversely affected by his work schedule. Thus, we cannot say that the lower court abused its broad discretion by refusing to excuse Chatham. Cf. State v. Bourque, 622 So.2d 198 (La.1993); State v. Collins, 546 So.2d 1246 (La.App. 1st Cir.), writ denied, 558 So.2d 599 (La.1989).

Defendant additionally argues that another venireman showed a willingness to require defendant to prove himself innocent. Rickey McBride, who is a school teacher and father of a teenager, initially stated an awareness of the drug problem and his belief that persons arrested on narcotics charges should not be presumed innocent. However, extensive questioning by both sides reflected that the potential juror adequately understood the state faced the burden of proof.

Furthermore, upon defense inquiry, McBride indicated he only thought the law should be changed, yet well realized he must apply the existing standards and not his own ideas. Finding that the prospective juror had shown a complete readiness to implement the court's instructions, the trial judge also rejected this challenge for cause. In our view, that decision did not constitute an abuse of discretion. Cf. State v. Griffin, 618 So.2d 680 (La.App.2d Cir.1993).

Of course, neither Chatham nor McBride actually served on the jury. Additionally, the record does not disclose that defendant exhausted his twelve peremptory challenges, but simply that he exercised eleven while the state presented four. Both sides also peremptorily excused venireman David Harper on their election slips. However, under the intendment of LSA-C.Cr.P. Art. 788, this dismissal could not be ascribed to the defense. Furthermore, at no time during voir dire did the trial judge admonish either attorney that their allotted number had been utilized.

Thus, defendant having failed to demonstrate use of all his peremptories, prejudice is not presumed even if the erroneous denial of a challenge could be established. See State v. Ross, supra; State v. Essex, supra. These two assignments of error lack merit.

Search and Seizure

In assignments 4, 6, and 25, Jackson asserts that no probable cause existed to stop or search the automobile, and that the trial court erred by denying his motion to suppress testimony about all events transpiring after the police first interfered. Specifically, he argues that officers acted in contravention of the Fourth Amendment to the Federal Constitution and Article 1, Section 5 of the Louisiana Constitution.

It is primarily contended that the Jonesboro authorities had no justification for initially stopping the automobile. However, the right of police to stop and interrogate upon reasonable suspicion of criminal conduct is recognized by LSA-C.Cr.P. Art. 215.1, as well as both federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Pautard, 485 So.2d 909 (La.1986); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Comparable with other situations, an investigatory stop of an automobile may be based upon actions which reasonably raise a suspicion of criminal activity, e.g., driving while intoxicated. State v. Elias, 509 So.2d 86 (La.App. 1st Cir.), writ denied, 512 So.2d 464 (La.1987). See also State v. Eppinette, 478 So.2d 679 (La.App. 2d Cir.1985); State v. Downer, 460 So.2d 1184 (La.App. 2d Cir.1984) (overruled on other grounds in State v. McGuire, 493 So.2d 559 (La.1986)).

In the case at bar, the officers followed the Chevrolet Nova for approximately three-quarters of a mile. During that interval, the automobile swerved over the dividing line between the two northbound lanes at least three different times. This unusual behavior, combined with the lateness of the hour, supported a reasonable suspicion that such erratic driving could be alcohol-related, and gave sufficient occasion for the police to stop the vehicle. Furthermore, we stand convinced that the pattern of operation described here exceeded the "minor deviations" discussed in State v. Vaughn, 448 So.2d 915 (La.App. 3d Cir.1984), heavily relied upon by defendant. Hence, the record fully discloses probable cause for the initial investigatory stop.

In certain situations, as recognized in State v. Landry, 588 So.2d 345 (La.1991), police officers also have authority to order that passengers disembark from a vehicle while affairs are transacted with the driver. Accord Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), recognizing the inordinate risk police officers encounter from persons seated in a vehicle. At the hearing on the motion to suppress, Officer Robinson stated that he asked the passengers to alight from the automobile and place their hands in view, as a precautionary measure. Understandably, the late hour and the fact that the travelers outnumbered the policemen heightened safety concerns. Indeed, the danger presented in these circumstances transcended the privacy interests of...