State v. Jordan

• Decision Date: 07 September 1982
• Docket Number: No. 81-KA-1771,81-KA-1771
• Citation: 420 So.2d 420
• Parties: STATE of Louisiana v. Don M. JORDAN.
• Court: Louisiana Supreme Court

Page 420

420 So.2d 420

STATE of Louisiana v. Don M. JORDAN.

No. 81-KA-1771.

Supreme Court of Louisiana.

Sept. 7, 1982.

Rehearing Denied Oct. 15, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Lance Africk, Fred Harper, Asst. Dist. Attys., for plaintiff-appellee.

Jasper Pharr, New Orleans, for defendant-appellant.

DIXON, Chief Justice.

Defendant Don M. Jordan was convicted of first degree murder, a violation of R.S. 14:30. Following a sentencing hearing, the jury unanimously recommended a sentence of death. It is from this conviction and sentence that defendant appeals, urging seventeen assignments of error.

On Sunday, April 8, 1979 defendant, Dianna Schwall and Gary Haisch went to Mel Downey's house for the purpose of buying drugs. Downey was unable to make a connection at first, but the group was subsequently able to purchase drugs in Chalmette and on St. Claude Street. They injected the drugs at Haisch's brother's house. Deciding they needed money for additional drugs, they went to Jordan's mother's house for ski masks, then to Dianna Schwall's house for two guns (a .357 magnum and a .38 caliber revolver) and a long-sleeved shirt for Mel Downey (Downey had identifying tattoos on his arms). As they drove toward the lakefront area in New Orleans, they stopped, intending to rob a grocery store but abandoned that plan and continued to ride around the lakefront area looking for potential robbery victims. Defendant had Schwall stop the car at Wren and Marconi Drive, near the Fraering residence. Gary Haisch knocked on the front door of the Fraering residence while defendant and Downey hid. When Mr. Fraering came to the door, Haisch asked to use the telephone to report that his girl friend had been involved in a car wreck. Mr. Fraering told Haisch he would let him use the telephone in the garage. As Mr. Fraering left the house he closed and locked the front door behind him. At that moment, defendant and Downey, masked and armed, jumped from their hiding place and demanded entrance into the residence. Mr. Fraering refused to open the door and threw the keys on the ground. An argument ensued between defendant and Mr. Fraering. Defendant Jordan then shot Mr. Fraering twice, fatally wounding him. Immediately following the shooting, defendant, Downey and Haisch went their separate ways. Subsequently, Downey was stopped and questioned by police officers; this questioning led to the arrest of defendant Jordan and the others.

Assignments of Error Nos. 5, 7, 8, 9 and 10

By these assignments defendant contends that the trial court erred in excusing prospective jurors who expressed conscientious scruples against the imposition of the death penalty.

Defendant asserts that it was not unmistakably clear that the prospective jurors would automatically have voted against the death penalty without regard to the evidence or that their scruples would have prevented them from making an impartial decision as to defendant's guilt.

C.Cr.P. 798 provides in pertinent part:

"It is good cause for challenge on the part of the state, but not on the part of the defendant, that:

* * *

(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt ..."

This court has repeatedly held that the statute is constitutional and does not conflict with the United States Supreme Court's decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ¹ See State v. Monroe, 397 So.2d 1258 (La.1981); State v. Williams, 392 So.2d 619 (La.1980); State v. Miller, 391 So.2d 1159 (La.1980).

In the instant case, four of the five jurors in question indicated that they were opposed to the death penalty under any circumstances. The fifth juror, Mr. Alfortish, stated that he could vote for the death penalty only if he had witnessed the crime. Thus, it is unmistakably clear that none of these prospective jurors would have considered the imposition of the death penalty in this particular case, no matter what the evidence proved. Therefore, their removal for cause was proper.

These assignments lack merit.

Assignments of Error Nos. 3, 6 and 11

By these assignments defendant contends that the trial court erred in denying defense counsel's motion for an individual voir dire of prospective jurors and a sequestration of prospective jury members.

Defense counsel stated that the purpose of the motion was to insulate the jurors and prospective jurors from prejudicial remarks and responses of other prospective jurors under examination. Defense counsel cites one such statement made by a prospective juror during voir dire concerning the guilt of defendant. The juror under examination stated that he had heard about the case on television, and that from the information given on television he definitely felt that defendant was guilty. He stated that he would feel that way until the evidence proved otherwise, and he assumed the defendant was guilty until proved innocent. In responding to a question by the prosecutor, the juror stated: "I'm with you already. In other words, I think he's guilty. That's what you think; that's why you're trying the case. In other words he's the guy that is going to have to prove it's the other way."

Although the trial judge excused this prospective juror for cause, he did not admonish the remaining jurors. Defendant urges that this event should have justified the sequestration of the other prospective jurors.

There is no provision in our law which either prohibits or requires the sequestration of prospective jurors for an individual voir dire. It is well settled, however, that a trial court has the discretion to permit individual voir dire if a defendant can demonstrate that special circumstances are present. State v. Lindsey, 404 So.2d 466 (La.1981). Defense counsel did not demonstrate that such special circumstances existed. In fact, defense counsel was permitted to address the remaining jurors to ascertain whether they had been prejudiced by the comment; the jurors indicated that they could still give the defendant a fair and impartial trial.

These assignments lack merit.

Assignment of Error No. 4

By this assignment defendant contends that the trial court erred in denying his "motion to strike" ² the jury panel because of the overrepresentation of Orleans Parish School Board personnel and hospital employees.

Earl Duplantier, Director of the Orleans Parish Jury Commission, testified that a board composed of jury commissioners meets once each month and randomly selects sixteen to seventeen hundred names from the parish voters' registration roll; volunteers are also placed in this group. From this group, three to four hundred names are randomly selected to make up the central jury pool list, from which the jury is ultimately selected. Mr. Duplantier further testified that often employees of the Orleans Parish school system are excused upon request due to the seasonal nature of their work, and their names are removed from that pool and divided as equally as possible and placed into a jury pool during the months of July, August, January or December, when the schools are not in term. He pointed out, however, that not all school system employees are excused, as some choose to serve during the school term. Mr. Duplantier could not explain the unusually large number of hospital employees on the list since their work is not seasonal and they are excused only in very few instances.

On cross-examination by defense counsel, Mr. Duplantier admitted that because this procedure had been followed, it was possible that as many as twenty-five of the three hundred seventy-five persons whose names appeared on the jury pool list for July could have been previously excused school system employees.

Defendant argues that the inclusion of the previously excused school employees in the July jury pool constituted a "stacking" of the jury pool with a certain class of people instead of a random drawing of names from a cross section of the community.

C.Cr.P. 409.1 authorizes the establishment of a central jury pool for the Criminal District Court for the Parish of Orleans and provides that the pool is to be administered by the Orleans Parish Jury Commission. The jury commission is given the authority to select the number of jurors to serve in the central jury pool as determined by the criminal district court acting en banc and by the method prescribed by law. In effect, the statute allows the selection of jury panels in the Orleans Parish Criminal District Court from central jury pools rather than from a general venire.

C.Cr.P. 419 provides that a "general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant." The Official Revision Comment under C.Cr.P. 419 suggests that the purpose of the statute is to prevent frivolous attacks upon venires resulting from good faith efforts by jury commissions to comply with the legal requirements for selecting juries. However, there is no provision in the Code of Criminal Procedure which provides grounds for challenging the selection of a central jury pool.

C.Cr.P. 409.1 appears in Title XI, "QUALIFICATIONS AND SELECTION OF GRAND AND PETIT JURORS." The legislature, following the enactment of C.Cr.P. 409.1 in 1972, did not amend C.Cr.P. 419 to include central jury pools. This appears to be an oversight, as it is clear that C.Cr.P. 419 should apply to the various types of venires and juries...