State v. Jacobs

• Decision Date: 07 July 2011
• Docket Number: No. 07–KA–887.,07–KA–887.
• Citation: 67 So.3d 535
• Parties: STATE of Louisianav.Lawrence JACOBS, Jr.
• Court: Court of Appeal of Louisiana — District of US

67 So.3d 535

STATE of Louisiana

v.Lawrence JACOBS, Jr.

No. 07–KA–887.

Court of Appeal of Louisiana, Fifth Circuit.

May 24, 2011.Rehearing Denied July 7, 2011.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Frank Brinidisi, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.Christine M. Lehmann, William Sothern, Attorneys at Law, New Orleans, LA, for Appellant, Lawrence Jacobs, Jr.Lawrence Jacobs, Jr., Angola, LA, Appellant, In Proper Person.Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

[5 Cir. 2] This matter is on remand from the Louisiana Supreme Court. For the following reasons, we affirm defendant's convictions and sentences.

After his first trial in 1998, defendant, Lawrence Jacobs, Jr., was convicted of first degree murder and sentenced to death. State v. Jacobs, 99–1659, p. 2 (La.6/29/01), 789 So.2d 1280, 1282–83. On direct appeal, the Louisiana Supreme Court reversed defendant's conviction and sentence and remanded the matter for a new trial. Id.

In Jacobs I, the Louisiana Supreme Court reversed defendant's conviction because of the trial judge's erroneous denial of two of defendant's challenges for cause. The supreme court described the denial of cause challenges as “the most blatant grounds” for reversal, but also noted serious questions regarding potential Batson violations and reminded the trial court “of its unique and integral role in the dynamics of voir dire and [cautioned] it to be especially sensitive to the alleged racially discriminatory use of peremptory challenges.” Jacobs I, supra at 1283, n. 2. The supreme court continued, citing [5 Cir. 3] State v. Myers, 99–1803 (La.4/11/00), 761 So.2d 498, 502, and reiterated the importance of the trial judge's role when Batson challenges are made:

The issue of purposeful racial discrimination in the use of peremptory challenges is a matter of utmost seriousness affecting not only the trial itself, but the perceived fairness of the judicial system as a whole. The trial judge observes first-hand the demeanor of the attorneys and venirepersons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold record.

Jacobs I, 789 So.2d at 1283, n. 2.

Justice Kimball, writing for the court, admonished the trial court to “properly address Batson challenges when made, by ruling on whether a prima facie case of discriminatory intent has been made or by requiring race-neutral reasons for the strikes.” In closing, Justice Kimball reiterated that, “It is essential that the trial judge not only control the proceedings, but that he guide the attorneys through the necessary steps involved in a Batson challenge, in order to ensure the integrity and fairness of the jury selection process.”

On September 12, 2002, the Jefferson Parish grand jury indicted the defendant on one count of first degree murder, for the homicide of two victims. Defendant pled not guilty. On or about May 13, 2005, in response to the United States Supreme Court's pronouncement in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),¹ the Jefferson Parish District Attorney's Office amended its indictment to reduce the charges against the defendant to two counts of second degree murder, in violation of La. R.S. 14:30.1, instead of one count of first degree murder.² Defendant was re-arraigned on the amended indictment and [5 Cir. 4] pled not guilty. He filed numerous pre-trial motions before proceeding to his second trial on August 21, 2006.³

After a five-day trial, defendant was found guilty as charged by a unanimous twelve-person jury on August 25, 2006. On October 4, 2006, the trial court denied defendant's motions for new trial and post verdict judgment of acquittal, and sentenced defendant to two consecutive life sentences at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which was later denied.

In his timely-filed appeal to this Court, defendant challenged his convictions and sentences. On appeal, defendant asserted fifteen assignments of error, including:

racial discrimination infected jury selection; the trial court erroneously denied defense challenges for cause to impartial jurors; removal of counsel of choice is structural error; the trial court erred in admitting the gruesome autopsy ‘rod’ photographs because their prejudicial nature substantially outweighs their probative value; the admission of the stage offense had no independent relevance to this case; the trial court erroneously denied Appellant's proposed instructions on leniency and the rights of the jury; there is insufficient evidence of second degree murder; the trial court's exclusion of relevant evidence violated Lawrence Jacobs' right to due process and a fair trial; appellant's statements should have been suppressed; the State's reliance on unreliable scientific evidence violates due process; defects in the Grand and Petit Jury pool violated the Constitution; the State failed to meet its heavy burden to establish that the case had not prescribed; the Grand Jury indictment failed to allege all necessary elements; the trial court erred in denying Appellant's Motion to Quash La. C. Cr. P. Art. 782 as unconstitutional; consecutive life sentences for a Sixteen Year–Old offender convicted of second degree murder violates the Eighth Amendment; and, finally, the district court did not have proper jurisdiction over the case.

On May 5, 2008, both the defendant and the State argued before this Court. On May 8, 2008, defendant filed “Motion for Leave to File Attached Supplemental Assignment of Error and Post–Argument Brief.” On May 15, 2008, the State filed [5 Cir. 5] its “Motion to File Post–Argument Supplemental Brief.” On May 19, 2008, this Court granted both parties leave to file supplemental briefs, which were filed that day.

In his supplemental brief, defendant raised two new assignments of error: (1) the appellate record is incomplete; and (2) the lack of a “properly endorsed” indictment is structural error. Defendant argues that the record contained the incorrect indictment, that the lack of a valid indictment deprives an appellate court of jurisdiction to review a case, and that an appellate record devoid of a valid indictment requires reversal of the conviction.

In its post-argument brief, the State noted that the record contained two (2) first degree murder indictments of defendant. The State further opined that the May 13, 2005 amendment to reduce the charges to second degree murder, which was inadvertently confected on the original 1996 indictment, did not form a basis for concluding reversible error as no prejudice existed concerning this matter.

Thereafter, on March 23, 2009, defendant filed a pro se “Motion for Leave to File Attached Supplemental Assignment of Error and Post Argument Brief.” In this motion, defendant argued that his attorney filed a motion on May 8, 2008, to contest the use of the invalid indictment but the motion was withdrawn “due to the Courts saying they found the correct indictment.” Defendant argued that the indictment in the record was still incorrect. This Court granted defendant leave to file a supplemental brief.

On March 27, 2009, defendant filed a pro se supplemental appellant brief, raising two new assignments of error: (1) trial court erred in proceeding with the trial when no valid indictment had been filed; and (2) there is no “codal authorization for the prosecutor to amend an indictment; The judge in duty must [5 Cir. 6] not create and exercise functions of the legislature, but only to interpret law, as binding on him by the Constitution and 1974 Louisiana Constitution Art. I & 15.”

Defendant argued that he was arraigned, tried, convicted, and sentenced on a non-existent charge of second degree murder because an oral indictment is no indictment at all. He concluded that this error patent requires a reversal of his conviction. He further argued that the State did not have the authority to amend the indictment and to institute prosecution of second degree murder with a bill of information.

On May 12, 2009, “after profound scrutiny, we found serious merit in defendant's claim that the prosecution's exercise of peremptory challenges reflected purposeful racial discrimination, which were not properly addressed by the trial court when the defendant objected during voir dire. Accordingly, we vacated defendant's convictions and sentences and granted a new trial.” ⁴ In doing so, this Court pretermitted discussion of the remaining assignments of error, including errors patent.

On April 5, 2010, the Louisiana Supreme Court granted writs. By per curiam, ⁵ the Louisiana Supreme Court reversed this Court's decision as it found no error in the trial court's acceptance of the prosecutor's reasons for its peremptory challenges, Jacobs III, 09–1304 at 5, 7–9, 32 So.3d at 231, 232–33, and nothing in the totality of the voir dire of these prospective jurors that rose to the level of Batson violations. Jacobs III, 09–1304 at 9–13, 32 So.3d at 233–36.

The Louisiana Supreme Court, in addressing defendant's claim of disparate questioning, conceded that the prosecutor's questions to the last panel of [5 Cir. 7] predominantly white prospective jurors were “compressed” but found the dissimilar treatment was insignificant:

Taking into account that voir dire was almost completed, that only a few jury members, or alternates, needed to be selected, and that these remaining venirepersons sat through the questioning of the prior three panels, the fact that the prosecutor may have compressed his questioning near the end of voir dire is far different than if disparate questioning occurred between the first and second panels, had there been all white...