State v. Tennors
| Decision Date | 15 February 2006 |
| Docket Number | No. 2005-538.,2005-538. |
| Citation | 923 So.2d 823 |
| Parties | STATE of Louisiana v. Marcus Deangelo TENNORS. |
| Court | Court of Appeal of Louisiana — District of US |
James C. Downs, District Attorney, Thomas Carl Walsh, Jr., Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Marcus Deangelo Tennors.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
The Defendant, Marcus Deangelo Tennors, appeals his jury convictions for aggravated burglary and simple burglary. Because the trial court committed legal error by discharging a juror to allow that juror to fulfill a personal obligation prior to deliberations, we reverse the Defendant's conviction and remand for a new trial.
The Defendant wishes us to determine whether:
(1) the trial court erred in substituting a juror prior to deliberations;
(2) the trial court erred in admitting prejudicial "other crimes" evidence; and,
(3) there was insufficient evidence to support convictions for aggravated burglary and simple burglary.
Because we find merit in the erroneous substitution of a juror prior to deliberations, we pretermit a consideration of the other issues.
At the conclusion of the first day of jury selection, the trial court advised the six jurors who had not been excused as to when they should return, and advised them that they would be called by the court if excused by backstrike the following day. The court then addressed Dr. Robert Howell, and the following discussion took place:
Dr. Howell, you have a class tomorrow?
BY DR. HOWELL:
I do, yes. My question was whether or not we can be reasonably sure as being let go whether the trial is over or not by 5:30 tomorrow evening?
Yes. Even if we don't take a break for lunch, we'll be through by 5:30 tomorrow. You have to go somewhere?
BY DR. HOWELL:
I'm suppose to be officiating a football game and it's not the kind of thing you can call somebody 15 minutes before and get them to replace you, so that's why I asked.
All right. Do you think that will be a problem, Mr. Walsh [assistant district attorney]?
BY MR. WALSH:
Judge, I'm looking at five or six witnesses. I don't think it's going to take that long.
BY MR. WILLIAMS [defense counsel]:
Judge, I believe that the time is always being underestimated on what it will take. I don't know how long these witnesses are going to take and I feel very—
Well, we will know at 12:00 so we can tell Dr. Howell.
BY MR. WILLIAMS:
We should be able to get a better idea by then, but rather—as of right now, I don't know how long this will take.
And, if we have to, we can just use an alternate for that. Dr. Howell, that's what we have an alternate for, if you need to go officiate a football game, we'd want you to do that and we'd substitute an alternate.
Prior to charging the jury, the question of what should be done to accommodate juror Howell was raised by the court. The following dialogue forms the basis for this assigned error:
I need to read you jury instructions right now. Do any of y'all need a break, a couple of you looked a little uncomfortable. It will take about 15 minutes for me to read this. Maybe not that long, just depending upon how I stumble across it. Dr. Howell, it's 4:25. Do you wish to be excused sir?
BY MR. HOWELL:
I really hate to leave people in a very bad situation, but I need to leave at 5:30, yes, sir.
No, Judge, because you had made that commitment, I think you made that commitment. I mean I'd rather not, but I am not going to lodge an objection and that—it comes down to Mr. Williams.
BY MR. WILLIAMS:
Judge again, you—I'm in a bad situation here. I understand he's got a commitment but the problem is I—I can't go along with excusing him at this point. I have to lodge an objection.
All right.
BY MR. WILLIAMS:
And not because I want to be a cold heart and I want him to miss the game, but—
I understand.
BY MR. WALSH:
May I approach the bench with counsel?
Yes.
I tell you what, let us take a break, we'll go ahead and take a break for 5 minutes. If y'all will be excused and come right back. We can go off the record and we can take this up in just a little bit.
COURT RECONVENES
All right, Dr. Howell, I had previously—I told you yesterday, you said that you could not serve if you were going to be here around 5:30 and it is now 4:37 and I'm about to give the jury instructions and so that would mean you would be getting to deliberate about 5 minutes until 5:00 which would give you about 20 minutes to deliberate and then run home and then so get to where you need to be at 5:30, so I want you to do that. And what I'm going to substitute you with the alternate, Ms. Bynog, and I said something to Ms. Bynog about that the other day that you may be substituted and that you need to pay attention. So, Dr. Howell, I apologize that you had to be here yesterday and today and you don't get to deliberate. You'd miss class at Louisiana College and I apologize to you, I thought the case would be over before then, but I appreciate your service and I'll excuse you. I'm going to find at this time you're unable to perform your duties as a juror and I will excuse you at this time. And I'm going to order that Ms. Bynog substitute for Dr. Howell. She will be juror number 4. All right, you're free to go. Thank you, sir.
Louisiana Code of Criminal Procedure Article 789 states the law applicable to alternate jurors. It provides in pertinent part:
A. The court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. If the court determines that alternate jurors are desirable in the case, the court shall determine the number to be chosen. The regular peremptory challenges allowed by law shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors. Except in capital cases, an alternate juror who does not replace a principal juror may be discharged when the jury retires to consider its verdict.
(Emphasis added).
The trial court, over defense objection, replaced a juror with an alternate juror, finding the juror "unable to perform" his duties due to a prior commitment to officiate at an athletic event. When the court first indicated an intent to accommodate Dr. Howell during voir dire, defense counsel expressed concern that the trial might extend later than expected, but he did not formally object to the court's stated intent.
The impropriety of releasing a juror to allow him to fulfill a personal obligation appears to be one of first impression by this court in the context presented. In State v. Brossette, 93-1036 (La.App. 3 Cir.), 634 So.2d 1309, writ denied, 94-0802 (La.6/24/94), 640 So.2d 1344, this court found no error when the trial judge excused a juror, over defense objection, who brought to his attention an employment relation with a witness who testified by stipulation. The defendant contended that it was improper to excuse a juror who was not incompetent. Even though the juror testified that she would not be swayed to change her vote as a result of her supervisor's testimony being offered by stipulation, this court found that the judge could have reasonably concluded that the juror could be affected or biased by the employment relationship. State v. Brossette, 634 So.2d 1309.
Also, in State ex rel. Skipper v. State, 03-842, 03-844, 03-845 (La.App. 3 Cir. 12/10/03), 861 So.2d 796, writ denied, 03-3083 (La.12/12/03), 860 So.2d 1164, writ denied, 04-03 (La. 4/23/04), 870 So.2d 298, this court found no error when the trial court replaced a juror with an alternate juror after finding out that the juror had an out-of-state rap sheet and time did not allow the court to ascertain immediately if the conviction shown was a felony.
The Louisiana Supreme Court in State v. White, 244 La. 585, 153 So.2d 401 (1963), found the facts to be that a juror, on the fifth day of a six-day trial, advised the trial judge that he thought he was disqualified. In the presence of counsel for both the state and defense, but outside the presence of the defendant, the judge, without asking the juror specifics of why he felt he had a conflict of interest, inquired whether the juror could decide the case on the evidence and disregard the alleged conflict. The juror responded: "It would tax me to do so." Thereafter, the judge released the juror and replaced him with an alternate.
The supreme court, in reversing the trial court, first discussed the evolution of the law...
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