State v. Sugar

• Decision Date: 25 January 1982
• Docket Number: No. 81-K-0870,81-K-0870
• Citation: 408 So.2d 1329
• Parties: STATE of Louisiana v. Ronald J. SUGAR.
• Court: Louisiana Supreme Court

Page 1329

408 So.2d 1329

STATE of Louisiana v. Ronald J. SUGAR.

No. 81-K-0870.

Supreme Court of Louisiana.

Jan. 25, 1982.

Rehearing Denied Feb. 19, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., James D. Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Camile F. Gravel, Jr., Helen G. Roberts, of Gravel, Robertson & Brady, Ralph L. Barnett, for defendant-appellant.

CALOGERO, Justice. ^*

This defendant, Ronald J. Sugar, was convicted of aggravated burglary and sentenced to serve 21 years at hard labor. ¹

During the voir dire, immediately before the prospective juror Ms. Martha Phillips was about to be sworn as a juror she asked whether it "might make a difference" that she was divorced from an Orleans Parish Assistant District Attorney. On questioning she testified that she had discussed cases with her former husband, had discussed his opinion randomly with him, had discussed crimes of violence, and had discussed a jury verdict with him on at least one occasion. She admitted that she tends to think "more on the side of the prosecution" because of discussions with her former husband. And in further response to a question she admitted that she could not say that these things she heard from her ex-husband would not prejudice her.

The defense thereupon challenged her for cause after which the trial judge allowed questioning by the assistant district attorney. He asked her only one question:

Q-"Now you've discussed this case with your husband, well not this case, but a lot of criminal cases. Well this is a completely different case. Could you sit there and decide this particular case only on the facts presented and not what you have discussed about other cases with your husband or other criminal cases what have you?

A-I can't answer yes.

Q-You can't. Okay."

The foregoing represents the entirety of the questioning of the prospective juror Martha Phillips after she alerted the Court to her predisposition toward the prosecution. ²

Immediately after the prosecutor's question quoted above the trial judge denied the challenge for cause, finding "that this juror is not to the point of prejudice against the defendant in this case." The defendant objected, then excused the juror peremptorily.

Before a defendant can complain that the trial judge denied a challenge for cause of a prospective juror, the defendant must have used all of his peremptory challenges. La.C.Cr.P. art. 800; State v. Lewis, 391 So.2d 1156 (La.1980); State v. Simmons, 390 So.2d 1317 (La.1980); State v. Jones, 376 So.2d 125 (La.1979); State v. McIntyre, 365 So.2d 1348 (La.1978); State v. Hysell, 364 So.2d 1300 (La.1978). The record in the instant case reveals that defendant did use all of his peremptory challenges. Therefore this matter is properly before us.

A trial judge is vested with broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Lewis, supra; State v. Drew, 360 So.2d 500 (La.1978).

The fact that Ms. Phillips had been married previously to an assistant district attorney is not sufficient to sustain a challenge for cause. This Court has found nonprejudicial, denial of defense challenges for cause of relatives of law enforcement personnel when they have indicated that they could serve impartially and return a verdict without giving extra weight to the state's case. State v. Sonnier, 379 So.2d 1336 (La.1979) (sister of sheriff in another parish); State v. Qualls, 353 So.2d 978 (La.1977) (wife of law enforcement officer); State v. Calloway, 343 So.2d 694 (La.1976) (aunt of police officer).

This juror, however, did not state that she could serve impartially. Instead, she said that she could not answer "Yes" when asked if she could decide this case on the facts presented. Louisiana Code of Criminal Procedure article 797(2) sets forth as a basis for a challenge for cause that a juror is not impartial, whatever the cause of that impartiality. Ms. Phillips' answers preponderate in favor of the fact that she was not impartial.

The state suggests that nonetheless the defendant was not prejudiced. It is not necessary that a defendant show resulting prejudice to obtain a reversal of his conviction in a situation of this kind. He need only show (1) that he used all of his peremptory challenges and (2) that the trial judge incorrectly denied a challenge for cause. La.C.Cr.P. art. 800; State v. Sylvester, 400 So.2d 640 (La.1981); State v. Monroe, 366 So.2d 1345 (La.1978), appeal after remand 397 So.2d 1258 (La.1981). An erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges does indeed affect a substantial right of the accused ³ and therefore requires reversal of his conviction. La.C.Cr.P. art. 921; State v. Sylvester, supra; State v. Monroe, supra. The juror might possibly have been rehabilitated upon further questioning by the prosecutor or the trial judge. ⁴ Unfortunately for the state, she was not. Reversible error occurred when the defense challenge for cause was denied.

Defendant's other assignments of error concern matters which are not likely to arise again; therefore we need not determine their merit. However, we do caution the prosecutor that he flirted with reversible error in his closing argument to the jury. Closing argument is to be limited to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice." La.C.Cr.P. art. 774. The prosecutor's argument contained the following"

We can't let this happen in the community. We can't let people run around with guns. We can't let people attack women. We can't let that happen. It happens all the time. There is a man that does it.

As we said in State v. Hayes, 364 So.2d 923 (La.1978), the prosecutor may not turn closing argument into a plebiscite on crime.

Decree

For the foregoing reasons, defendant's conviction is reversed and the case remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

SCHOTT, J. ad hoc concurs.

CHEHARDY, J. ad hoc dissents and assigns reasons.

LAWRENCE A. CHEHARDY, Justice Ad Hoc (dissenting).

By bill of information filed March 1, 1979, defendant, Ronald J. Sugar, was charged with violation of La.R.S. 14:60, aggravated burglary. At arraignment on June 8, 1979, defendant entered a plea of not guilty. Defendant's trial began on November 18, 1980 before a jury of twelve with defendant being found guilty as charged. Sentence of the defendant on January 21, 1981 to serve twenty years at hard labor followed a presentence investigation report. Defendant appeals his conviction to this Court urging eleven assignments of error.

Since assignment of Errors Nos. 1, 2, 5, 6, and 7 were neither briefed nor argued, these assignments are considered abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

The testimony and evidence show that Starlyn Calhoun, on January 28, 1979, was dropped off at her parents' house at approximately 1 a. m. in order to pick up her car. Starlyn, after talking with her parents for about thirty minutes, returned by car to her Houma Boulevard apartment in Metairie, Louisiana. Upon arriving at her apartment she was approached from behind by the defendant, who inquired about an apartment's location. Although she advised the defendant there was no such number in the building she was followed by the defendant as she walked upstairs to her apartment. Miss Calhoun stated that in response to defendant's asking her if she wanted company, she said no and asked him to leave her alone. At this point Sugar pulled out a gun and stated: "If you don't shut-up, if you get me, if you get me caught, I'm going to shoot you." Once inside the apartment, defendant ordered Starlyn to take her clothes off. She stated she told him her roommate would be returning soon and she should lock the door. At this point as defendant walked out of the bedroom to escort her to the front door, she slammed the bedroom door, locked it and jumped out the window. She ran to a neighbor's apartment and the neighbor telephoned the police. Miss Calhoun also testified that she had never seen defendant before he approached her outside of her apartment.

Defendant testified on his own behalf during the trial. He said he had seen Miss Calhoun while he was shooting pool at Ellie's Lounge and that he went over to the bar where she was sitting and started talking to her. He testified that Miss Calhoun suggested that they go someplace else and they left the bar together. He further testified she left in her car and he followed her. Defendant said when they arrived at the apartment he began to make small talk about how nice it looked. He stated that after a short time had passed, he coaxed her down the hall toward the bedroom. Defendant further testified that when he had taken his boots off, Miss Calhoun stated she had changed her mind and she wanted him to leave. He stated he tried to get her to change her mind and left the bedroom and went into the bathroom. He testified he heard a scream and a door slam. He further testified that when he went to the bedroom door, it was locked.

Miss Calhoun identified the defendant from a photographic lineup at police headquarters. The officers then went to the residence of defendant and asked him to accompany them to headquarters for questioning.

Defendant was given his Miranda warnings and signed a rights waiver form. He then admitted being at the victim's apartment on the night in question.

Defendant, by assignment of Error No. 3, argues that the trial court erred in refusing to excuse a prospective juror, Martha Philipp, for cause, contending this ruling deprived him of one of his peremptory challenges and, therefore, constitutes a substantial violation of his...