State v. Newman

• Decision Date: 25 June 1986
• Docket Number: No. CR85-1154,CR85-1154
• Citation: 491 So.2d 174
• Parties: STATE of Louisiana v. Robert NEWMAN.
• Court: Court of Appeal of Louisiana — District of US

Page 174

491 So.2d 174

STATE of Louisiana v. Robert NEWMAN.

No. CR85-1154.

Court of Appeal of Louisiana, Third Circuit.

June 25, 1986.

Alvin B. King, Lake Charles, for defendant-appellant.

Marvin Olinde, Asst. Atty. Gen., Baton Rouge, Richard P. Ieyoub, Dist. Atty., Lake Charles, for plaintiff-appellee.

Before GUIDRY, DOUCET and MANSOUR, ^* JJ.

GUIDRY, Judge.

The defendant, Robert Newman, was arrested on March 29, 1984 and charged with armed robbery, a violation of La.R.S. 14:64. Defendant was arraigned on May 21, 1984, entered a plea of not guilty, and elected trial by jury. The district attorney's request for recusal from prosecuting this case was granted and the case was referred to the Louisiana State Attorney General's office.

The jury was selected from a list of 90 Petit Jurors. The Clerk of Court produced a box labeled as "Petit Jury" which contained a sealed envelope containing the names of 90 Petit Jurors. Under direct supervision of the court, 37 Petit Juror's names were randomly drawn from the "Jury Box". The State peremptorily challenged eight jurors, defendant peremptorily challenged five jurors and one for cause. At the request of the defendant, the court noted that all remaining members of the Jury Venire were of the white race and that there were no minority groups represented on the jury.

Following the denial of two motions for mistrial, the trial proceeded. Defendant was found guilty as charged by a jury of twelve. Defendant's motion for a pre-sentence investigation was denied but the court ordered the State to provide a criminal history of defendant and defense counsel to provide any information available on defendant's background. On October 15, 1985, the trial court sentenced defendant to serve twelve (12) years in a state penal institution, without benefit of parole, probation, or suspension of sentence.

FACTS

On March 29, 1984, Shirley Roberts, while working as a cashier at Peggy's Superette, was robbed at gunpoint. Mrs. Roberts was working the register when defendant entered the store. The defendant walked up to the register, pointed a gun at Mrs. Roberts, and demanded she give him all the money in the register. The defendant told her he would not hurt her if she cooperated. After Mrs. Roberts placed the money in a paper bag, defendant ran out of the store. Mrs. Roberts yelled to the owner of the store, Mr. Sonnier, that they had been robbed. Sonnier looked toward the front of the store and observed a black male, dressed in a green jumpsuit and purple hat, running out of the store.

Sonnier chased defendant on foot for a short distance, then returned to the store and got into his car. He drove down about two blocks to a place known as the Reno Club where he observed a black male walking out from around the side of the building. When Sonnier inquired as to whether anyone had seen a black man wearing a purple cap come by there, an unidentified black male advised him that such a man had run down the street. Sonnier observed that this man was not wearing a shirt and seemed to be out of breath and sweating. Sonnier returned to his store where he met police officers who had arrived on the scene. He and the officers then proceeded to the Reno Club and observed the defendant getting into a car and leaving the scene. The money was recovered from the side of the building. Sonnier identified defendant as the man he had spoken to earlier and Mrs. Roberts subsequently identified him as the robber.

Defendant was then arrested and charged with armed robbery, a violation of La.R.S. 14:64. As aforestated, he was tried and convicted by a jury of twelve persons. Defendant appeals his conviction urging four assignments of error.

ASSIGNMENT OF ERROR NO. 1

Through this assignment of error the defendant asserts that the trial court erred in denying defendant's motion for a mistrial pursuant to La.C.Cr.P. art. 775(3), as all black veniremen were removed from the jury venire by the State's use of peremptory challenges. Defendant argues that this defect in the proceedings constitutes the denial of trial by a fair and impartial jury as defendant is a black man.

In the recent United States Supreme Court case of Batson v. Kentucky, --- U.S. ----, ----, ----, 106 S.Ct. 1712, 1715-16, 1722-24, 90 L.Ed.2d 69 (1986), Justice Powell stated for a majority of the Court:

"Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure....

* * *

... [A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, [430 U.S. 482] at 494, [97 S.Ct. 1272 at 1280, 51 L.Ed.2d 498 (1977) ] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, [345 U.S. 559] at 562 [73 S.Ct. 891, at 892, 97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination....

* * *

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.... [T]he prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race. Cf. Norris v. Alabama, 294 U.S., at 598-599 [, 55 S.Ct. 579, 583-84, 79 L.Ed. 1074 (1935) ]; see Thompson v. United States, 469 U.S. 2024, ---- [105 S.Ct. 443, 444, 83 L.Ed.2d 369 (1984) ] (BRENNAN, J., dissenting from denial of certiorari).... Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or 'affirming his good faith in individual selections.' Alexander v. Louisiana, 405 U.S. at 632 [92 S.Ct. 1221, at 1226, 31 L.Ed.2d 536 (1972) ]." ¹

In the instant case the defendant has clearly satisfied the first and second criteria set forth in Batson for the establishment of a prima facie case of purposeful racial discrimination. The defendant is a black man and the State did exercise peremptory challenges to remove from the venire members of the defendant's race. However, in order to establish a prima facie showing, the defendant must demonstrate from these facts and other relevant circumstances a reasonable inference that the prosecutor exercised peremptory challenges in order to exclude veniremen from the petit jury on account of their race. In our view, the defendant has utterly failed in establishing this last and most important criteria. There is no showing that members of the defendant's race were underrepresented on the venire from which his jury was drawn or that the venire was selected under a practice providing the opportunity for discrimination. Quite to the contrary, the record reflects that the jury venire was summoned by means of a newly installed computer system containing approximately 160,000 names, representing all registered voters and holders of driver's licenses in the Parish of Calcasieu, Louisiana. The computer is programmed to make a random selection of that number of jurors as ordered by the court.

Further, defendant refers to no other "relevant circumstances" which would support an inference that the prosecutor purposefully excluded veniremen from the petit jury on account of their race. In stark contrast to this total lack of other relevant circumstances supporting an inference of racial discrimination in jury selection is the prosecutor's explanation of her use of peremptory challenges. In this connection, she stated:

"Each one of the peremptory challenges that I exercised, I do have written down on my sheet of paper a particular reason as to, not as to race, but as to answers to questions that I posed to the potential jurors that made me make my selection, and there was no systematic basis by which I excluded anyone and it was strictly on the questions to the answers [sic] that I posed to them and I exercised the challenges that are given to me under the Code of Criminal Procedure."

The trial court, in denying defendant's motion for a mistrial, concluded that the State's use of peremptory challenges was exercised logically and for adequate reasons totally unrelated to race. We find the trial court's determination in this regard to be fully supported by the record.

In any event, our Louisiana Supreme Court, in its denial of a rehearing application in State of Louisiana v. Glenn Ford, 489 So.2d 1250 (La.1986), concluded that the decision in Batson was not to be applied retroactively, i.e., to cases tried before it was handed down. The United States Fifth Circuit Court of Appeal in Esquivel v. McCotter, 791 F.2d 350 (5th Cir.1986), reached the same conclusion.

For the reasons stated, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant argues through this assignment of error that the trial court erred in denying his motion for mistrial pursuant to La.C.Cr.P. art. 767, ² as the State during its opening statement, improperly alluded to an inculpatory statement made by defendant. During the...