State v. Wallace

• Decision Date: 18 July 2012
• Docket Number: No. 11–1258.,11–1258.
• Citation: 92 So.3d 592
• Parties: STATE of Louisiana v. Catrina L. WALLACE.
• Court: Court of Appeal of Louisiana — District of US

92 So.3d 592

STATE of Louisiana

v.Catrina L. WALLACE.

No. 11–1258.

Court of Appeal of Louisiana,

Third Circuit.

May 30, 2012.

Rehearing Denied July 18, 2012.

James Edgar Boren, Attorney at Law, Baton Rouge, LA, Rachel Jones Conner, Attorney at Law, New Orleans, LA, for Defendant/Appellant, Catrina L. Wallace.

J. Reed Walters, District Attorney, 28th Judicial District Court, Jena, LA, for Appellee, State of Louisiana.

Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.

GREMILLION, Judge.

[3 Cir. 1]On three separate occasions within a three-week period, Defendant sold a confidential informant one to three grams of cocaine. She was charged by a bill of information with three counts of distribution of a controlled dangerous substance, cocaine, a violation of La.R.S. 40:967(A). A jury convicted her on each count. Defendant was sentenced to serve five years at hard labor on each count, to run consecutively, with the first two years to be served without the benefit of parole, probation, or suspension of sentence, for a total of fifteen years imprisonment and three thousand dollars in fines plus court costs.

Defendant appeals and assigns as error: 1) The trial court erred when it denied her request to strike a potential juror for cause; and 2) The consecutive sentences, totaling fifteen years, are constitutionally excessive considering the circumstances of her case. For the following reasons, we affirm the convictions. However, we find merit in Defendant's contention that the imposed consecutive sentences are excessive, and we vacate the sentences, and we remand the matter to the trial court for resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court erred when it denied her challenge for cause when she sought to exclude a prospective juror who declared that he would hold it against Defendant if she did not testify. As a result of the trial court's refusal, Defendant was forced to use a peremptory challenge to excuse the juror, “thereby prejudicing her right to effective voir dire examination and selection of a fair and impartial jury.” In State v. Schmidt, 99–1412, pp. 29–30 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, 148,writ denied,00–2950 (La.9/28/01), 798 So.2d 105,cert. denied,535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), this court stated:

[3 Cir. 2]A criminal defendant has the fundamental right to have a jury determine whether he may be guilty or innocent; whether the state proved all elements of the crime beyond a reasonable doubt. La. Const. art. I, § 17; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Nevertheless, this fundamental right would become meaningless if not guided by the principle that the jury should be impartial in order to ensure that the criminal defendant receives a fair trial. This principle does not mean that a criminal defendant has the right to be tried by a particular type of jury or juror, but it simply means that it is essential that the jury be impartial and competent. State v. McLean, 211 La. 413, 30 So.2d 187 (1947); State v. Lewis, 98–904 (La.App. 3 Cir. 12/9/98); 724 So.2d 830,writ denied,99–0438 (La.11/12/99); 749 So.2d 649. To ensure that the jury is competent and impartial, La. Const. art. I, § 17 provides safeguards, such as the defendant's “right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.”

The purpose of voir dire is to test the competency and impartiality of prospective jurors to determine whether they are fit to serve on the jury. Voir dire is designed to uncover information about the prospective jurors, which may be used as a basis for challenges for cause or exercise of peremptory challenges. State v. Berry, 95–1610 (La.App. 1 Cir. 11/8/96); 684 So.2d 439,writ denied,97–0278 (La.10/10/97); 703 So.2d 603. When a defendant exposes the partiality of a juror, the juror may not be automatically excluded for cause. The state or the trial court may rehabilitate the juror by asking questions and obtaining answers demonstrating the juror's ability to decide the case impartially pursuant to law and evidence. Ultimately, the trial court has the power to determine whether or not a juror may be excused for cause. State v. Turner, 96–845 (La.App. 3 Cir. 3/5/97); 692 So.2d 612,writ denied,97–2761 (La.2/20/98); 709 So.2d 773.

In State v. Scott, 04–1312, pp. 16–17 (La.1/19/06), 921 So.2d 904, 921,cert. denied,549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006), overruled on other grounds by State v. Dunn, 07–878 (La.1/25/08), 974 So.2d 658, the supreme court discussed the trial court's role in determining whether a prospective juror should be excused for cause from the jury panel, as follows:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Cross, 93–1189, p. 7 (La.6/30/95), 658 So.2d 683, 686;State v. Robertson, 92–2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281. Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges. Robertson, 92–2660 at p. 3, 630 So.2d at 1280;State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous [3 Cir. 3]ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. Cross, 93–1189 at p. 6, 658 So.2d at 686;State v. Bourque, 622 So.2d 198, 225 (La.1993). “A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” State v. Jones, 474 So.2d 919, 926 (La.1985). However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 92–2660 at p. 4, 630 So.2d at 1281.

To prove there has been error warranting reversal of a conviction, defendant is only required to show: (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. Robertson, 92–2660 at p. 3, 630 So.2d at 1281.

Louisiana Code of Criminal Procedure Article 797, in pertinent part, provides:

The state or the defendant may challenge a juror for cause on the ground that:

....

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

....

(4) The juror will not accept the law as given to him by the court[.]

A review of the record shows that Defendant used all of her twelve peremptory challenges, including one challenge used to exclude the prospective juror after she attempted to have him excused for cause.

During voir dire, the trial court questioned the venire panel prior to the panel being questioned by the State or Defendant. The trial court asked: “Because the State has its burden of proof, the defendant does not have to prove anything, which [3 Cir. 4]means she does not have to testify or present any evidence if she should choose not to. Should she choose to elect to exercise this right, will any of you hold that against her.” The prospective juror, Chad Estis, answered “Yes, sir.” A little later, the State asked Mr. Estis about his response to the question of whether he would hold it against Defendant if she did not testify:

Q. And I'm not certain I understand, but I think I heard you say you would hold it against the defendant, if she didn't testify?

A. Yes, sir, I mean, I mean, it kind of goes back to my kids, you know. I mean if one of my kids was in the yard crying saying the other one done something to it, and the other one don't say nothing, guess who gets in trouble?

Q. Been there and done that. If the Judge tells you that the law is such that the constitution of this country and of this State, says that the defendant does not have to testify, can you apply that? Or would it be difficult for you?

A. I understand it's the law and everything, I mean, but everybody's got, you know, everybody's [sic] is their own person.

Q. I understand.

A. I mean, you can't make somebody think something (inaudible).

When it was Defendant's turn to question the prospective jurors, her counsel went immediately to Mr. Estis. The following conversation took place:

Q. Good morning, again to you all. Mr. Estis, you said that if a person does not get up and defend themselves that you, you'd hold that against them, is that correct?

A. I mean, if they're not going to defend themselves, they must be guilty. That's the way I think.

Q. Okay. Even, even if the, even if the State doesn't put on enough evidence, but just puts on a little evidence, but the defendant still doesn't get up and say anything, you still find them guilty?

A. Well, it just depends on the situation. I mean, it seems like a person would want to put their side of the story out there.

Q. You said it seems like the person would want to put their side of the story out there?

[3 Cir. 5]A. Yeah, yes, ma'am.

Q. And so, the Judge instructed you and also the D.A. has also mentioned and told you about a law that says that the defendant, the defendant does not have to testify, that that's their constitutional right. And although that is the law, it doesn't change your opinion about how you feel about that situation, does it?

A. Not really.

Q. You still would say if they do not testify, that you would hold that against them?

A. I guess...