State v. Plauche

• Decision Date: 06 January 2010
• Docket Number: No. 09-400.,09-400.
• Citation: 32 So.3d 852
• Parties: STATE of Louisiana v. Joseph T. PLAUCHE.
• Court: Court of Appeal of Louisiana — District of US

32 So.3d 852

STATE of Louisiana v. Joseph T. PLAUCHE.

No. 09-400.

Court of Appeal of Louisiana, Third Circuit.

January 6, 2010.

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Kathrine Sara Williamson, Attorney at Law, James Michael Small, Attorney at Law, Alexandria, LA, Daniel James Stanford, Attorney at Law, Lafayette, LA, for Defendant/Appellant Joseph T. Plauche.

Hon. Charles A. Riddle III, District Attorney, Marksville, LA, for Plaintiff/Appellee: State of Louisiana.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

On May 31, 2007, the Defendant, Joseph T. Plauche, shot his wife in the neck and then turned the gun on himself. The victim died about thirty-five hours after the shooting, but the Defendant recovered from his injuries and was charged for the shooting death of his wife.

On July 26, 2007, the Defendant was indicted by an Avoyelles Parish Grand Jury with second degree murder, a violation of La. R.S. 14:30.1. A motion to change venue was granted and the case was transferred to Concordia Parish. A trial by jury began on July 14, 2008. The trial concluded on July 24, 2008, and the jury unanimously found the Defendant guilty of the responsive verdict of manslaughter.

The Defendant filed a motion for a new trial which was taken up prior to sentencing on August 20, 2008. Following the trial court's denial of the motion, the Defendant was sentenced to serve forty years at hard labor. The Defendant filed a motion to reconsider sentence on September 15, 2008, which was denied with written reasons on March 20, 2009.

The Defendant is now before this court on appeal, challenging his conviction and sentence in seven assignments of error. For reasons discussed below, we affirm both the conviction and the sentence.

APPELLANT'S ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that no Batson violation occurred during voir dire and in denying the motion for mistrial raising the Batson issue.

2. The trial court erred in denying the defense challenge for cause of prospective juror McMillin.

3. The trial court erred in granting the State's motion in limine and allowing the use of hearsay evidence.

4. The trial court erred in denying the defense motions to suppress the physical evidence.

5. The trial court erred in allowing the State to introduce highly prejudicial irrelevant evidence.

6. The trial court erred in denying a mistrial after contact between a member of the prosecutor's staff and jurors.

7. The trial court erred in imposing a constitutionally excessive sentence and in denying the defense motion to reconsider the sentence.

LAW AND DISCUSSION ON THE MERITS:

ASSIGNMENT OF ERROR NO. 1:

By this assignment of error, the Defendant argues that the State used a peremptory challenge to excuse a prospective juror, Tammy Gorham, a black female, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and La.Code Crim.P. art. 795. The Defendant contends that a number of white prospective jurors, namely Gregory Booth, Louise Moak, Gregory Beard, and Gilbert McMillin, were similarly situated to Ms. Gorham in terms of hardship or extreme inconvenience if chosen to serve on the jury. As such, the Defendant concludes that the State's reason for excusing Ms. Gorham, in light of the fact that all of the State's previous peremptory challenges were used to excuse black potential jurors and because similarly situated white potential jurors were not peremptorily challenged by the State, appears to be a pretext for excusing Ms. Gorham, another potential black juror.

In State v. Anderson, 06-2987, pp. 41-43 (La.9/9/08), 996 So.2d 973, 1004, cert. denied, ___ U.S. ___, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009), the Louisiana Supreme Court restated the well-settled law regarding jury selection and the appellate review of rulings on Batson challenges:

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person's race. The Supreme Court reaffirmed its position that racial discrimination by any state in jury selection offends the Equal Protection clause of the 14th Amendment in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Louisiana law codifies the Batson ruling in LSA-C.Cr.P. art. 795. See also State v. Snyder, 1998-1078 (La.9/6/06), 942 So.2d 484, rev'd on other grounds, Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

If the defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially-neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether the defendant has proven purposeful discrimination. The race-neutral explanation need not be persuasive or even plausible. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. State v. Tyler, 97-0338, at 3 (La.9/9/98), 723 So.2d 939, 942, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999).

The trial court's findings with regard to a Batson challenge are entitled to great deference on appeal. Id. at 4, 723 So.2d at 943; see also, State v. Juniors, 03-2425, p. 28 (La.6/29/05), 915 So.2d 291, 316. When a defendant voices a Batson objection to the State's exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor's race-neutral explanations to be credible. "Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Miller-El, 537 U.S. at 339, 123 S.Ct. at 1040.

The three-step Batson process which guides the courts' examination of preemptory challenges for constitutional infirmities has recently been described again by the Supreme Court as follows:

A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Internal quotations and citations omitted.

Collins, 546 U.S. at 338, 126 S.Ct. at 973-74.

Prior to jury selection in the instant case, the trial court questioned potential jurors who sought to be excused. Gorham, a black female and student nurse, informed the trial court that she could only miss ten percent of class time during the semester. She admitted that her absence from class would be excused, but she would, nonetheless, be required to make up the time. The trial court denied Ms. Gorham's request to be excused at that time.

During voir dire, Ms. Gorham stated that she was a nursing student at Our Lady of the Lake in Baton Rouge, Louisiana. She explained that she was enrolled in a four semester program to become a licensed practical nurse. Ms. Gorham reported that she was in her second semester, which on a weekly basis involved two days of class time, 8:00 a.m. to 4:00 p.m., and three days of clinicals, 6:30 a.m. to 3:00 p.m. According to Ms. Gorham, she had only two weeks remaining in the semester and had already missed two clinical days. Ms. Gorham testified that serving on the jury would be a sacrifice because she was required to complete a certain number of hours and without the requisite hours, she would have to repeat the semester. Also, she would have to wait until the class was offered again. The State did not challenge Ms. Gorham for cause based on her hardship and she was later accepted as a prospective juror by both the State and Defendant.

At some time thereafter, the State asked the Defendant to join in a challenge for cause to excuse Ms. Gorham due to her hardship and the Defendant declined. Following a short break, jury selection resumed and the State exercised its fourth peremptory challenge to remove Ms. Gorham based on significant hardship. Ms. Gorham was subsequently dismissed from the panel.

Prior to the commencement of jury selection the following day, the Defendant filed a motion for mistrial based upon an alleged Batson violation involving the peremptory challenge of Ms. Gorham. The Defendant complained that the State had used four peremptory challenges at that time and that all four challenges were used to excuse black jurors, including Ms. Gorham. Referring the trial court to Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the Defendant argued that the reason for challenging Ms. Gorham was not race neutral. According to the Defendant, similarly situated white prospective jurors, including Greg Beard, ...