State v. Prejean

• Decision Date: 29 November 1979
• Docket Number: No. 64813,64813
• Citation: 379 So.2d 240
• Parties: STATE of Louisiana v. Dalton PREJEAN.
• Court: Louisiana Supreme Court

Page 240

379 So.2d 240

STATE of Louisiana v. Dalton PREJEAN.

No. 64813.

Supreme Court of Louisiana.

Nov. 29, 1979.

Concurring Opinion Jan. 28, 1980.

Dissenting Opinion on Denial of Rehearing Jan. 28, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appellee.

Thomas E. Guilbeau, Lafayette, for defendant-appellant.

DIXON, Justice. ^*

At about five o'clock in the morning of July 2, 1977 the defendant, his brother Joseph, Michael George and Michael Broussard left Roger's Nite Club in Lafayette Parish. The four had spent the night drinking in various lounges in the vicinity. They left Roger's Nite Club in a 1966 Chevrolet driven by the defendant, with his brother in the front seat and the other two in the back. The car's taillights were not working, and within a few hundred feet of the lounge, State Trooper Donald Cleveland, who was on his way to work driving his police vehicle, signaled the Chevrolet to stop. The defendant and his brother attempted to switch places in the front seat because the defendant had been driving without a license. The officer noticed the switch and ordered the occupants out of the car. He told Michael George and Michael Broussard to get back in, however, and began to search Joseph Prejean. Dalton Prejean, back in the car, stated, "I don't like the way he's doing my brother." (This was a reaction to the trooper's pushing Joseph against the car, over Joseph's protest). Defendant then took a .38 caliber revolver from under the car seat, got out of the car and approached the officer with the gun hidden against his leg. As he neared the trooper he fired without warning. Trooper Cleveland was struck by two bullets and was killed. The defendant and his companions fled the scene but were apprehended several hours later.

Dalton Prejean was charged by grand jury indictment with first degree murder in violation of R.S. 14:30. The trial was transferred from Lafayette Parish to Ouachita Parish because of pretrial publicity. After a three day bifurcated trial beginning on May 1, 1978 a jury of twelve persons found the defendant guilty as charged and unanimously recommended that the death penalty be imposed. The defendant now appeals the verdict and sentence, relying on eleven assignments of error.

Assignments of Error Nos. 1 and 2

In his first assignment the defendant urges as error the challenges for cause granted by the court against jurors voicing an inability to impose the death penalty. By his second assignment the defendant contends that his counsel at trial was incompetent and erred in not objecting to the challenges for cause and in failing to traverse the testimony of witnesses that they would not vote for the death penalty.

C.Cr.P. 798(2) provides:

"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."

In Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that a sentence of death cannot be carried out if the jury that recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The defendant asserts that the exclusion of prospective juror Ertha Taylor was contrary to the standard of Witherspoon.

The prospective jurors were examined in panels. Twelve were selected for the initial panel and new jurors were led in to replace those excluded during the voir dire. The jurors were asked to raise their hands in response to questions asked of them. In response to an inquiry by the prosecuting attorney as to whether any of the jurors had scruples against capital punishment to the point where he would under no circumstances be able to impose that penalty, even if it were justified by the facts, Ms. Taylor raised her hand. Ms. Taylor further stated, "I don't believe I could do it." The prosecutor responded, "Not at all?" to which Ms. Taylor answered, "No sir." The counsel for the defendant was asked if he wished to traverse, but he declined to do so.

No objection was made to the challenge for cause of Ms. Taylor. In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of by the defendant after the verdict is rendered. C.Cr.P. 841; State v. Mitchell, 356 So.2d 974 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977). In any event the record indicates clearly that Ms. Taylor was properly excused for cause. Ms. Taylor did more than voice a general objection or conscientious or religious scruples against the death penalty. She stated her honest opinion that she could under no circumstances impose that penalty. Therefore, she was properly excused under C.Cr.P. 798(2) and Witherspoon.

The defendant in brief asserts that the defense counsel's failure to object to the exclusion of Ms. Taylor amounted to ineffective and incompetent assistance of counsel. This contention is without merit. The record indicates that defense counsel was experienced in the practice of criminal law. As noted above, the exclusion of Ms. Taylor was proper. Trial counsel cannot be said to be incompetent for failing to object to what was not objectionable. Nor does counsel's failure to traverse or seek to rehabilitate the excluded witness amount to incompetence. When asked if he wished to question the nine prospective jurors excluded under C.Cr.P. 798(2), defense counsel typically replied that he was in complete agreement with the sentiments expressed by the excluded jurors. In all other respects his voir dire was competent and able. The defense counsel apparently chose to forego rehabilitation of the excluded jurors in the hope of impressing upon the remaining jurors the moral scruples some members of society have against imposition of the death penalty. The purpose of post-trial review of the effectiveness of counsel is not to second guess the tactical decisions of trial counsel.

These assignments are without merit.

Assignments of Error Nos. 3 and 4

By these assignments the defendant, who is black, urges error in the denial of his motion to quash the petit jury panel on the grounds that the prosecutor deliberately exercised his peremptory challenges so as to exclude members of the defendant's race from the petit jury. Defendant also assigns error in the trial court's denial of a continuance to permit him to gather information to establish an historical pattern of discrimination.

Immediately after the selection of twelve white jurors, the defendant moved to quash the panel. He contended four out of the nine peremptory challenges exercised by the state were against blacks. Arguments were made on the motion the following morning, at which time the defendant's counsel stated that the records as to persons challenged by the prosecuting attorney were in Lafayette Parish, and, therefore, the only evidence he had to support his motion was the fact that the state had exercised four of its nine peremptory challenges against blacks. The defendant asked to introduce evidence from those records at a later date. The court stated that it could not simply leave the door open for the defendant to introduce that evidence at any time. The trial court then denied the motion to quash the petit jury panel. The defendant did not urge discrimination in the use of the state's peremptory challenges in his motion for a new trial, in which he could have introduced any evidence obtainable from the Lafayette Parish records.

The excellent per curiam notes of the trial judge discuss the habitual thorough preparation of defense counsel, and that his active criminal practice would have given him knowledge of any racial discrimination by the district attorney. To this the trial judge added that, to his knowledge, there was no systematic exclusion of blacks in the Fifteenth Judicial District, by any means.

As noted in State v. Washington, 375 So.2d 1162 (La.1979) and State v. Brown, 371 So.2d 751 (La.1979), this court has held that a defendant is not denied equal protection by the state's use of peremptory challenges against blacks unless there is a systematic exclusion of blacks over a period of time. In so doing, we adhered to the principle of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing that peremptory challenges were used to exclude blacks in a particular case did not establish a violation of equal protection under the Fourteenth Amendment of the United States Constitution. Rather, a showing of a systematic exclusion over a period of time is required to present a constitutional issue. In the present case, the defendant introduced no evidence to show that exclusion of blacks by peremptory challenge had occurred over a period of time. Therefore, his motion to quash the petit jury panel was properly denied.

These assignments are without merit.

Assignment of Error No. 5

At the beginning of the trial the prosecutor asked the widow of the victim how many children she had. Defense counsel objected to that question but only after the witness' response was entered in the record. The court ordered the jury removed while argument was made on the defense objection. The court Sustained the objection on the grounds that the number of the witness' children was irrelevant. The jury was brought back in and examination of the witness...