Opinion
NO. 2016 KA 1202
06-02-2017
STATE OF LOUISIANA v. WILLIAM WASHINGTON
WARREN L. MONTGOMERY DISTRICT ATTORNEY RONALD GRACIANETTE ASSISTANT DISTRICT ATTORNEY FRANKLINTON, LA AND MATTHEW CAPLAN ASSISTANT DISTRICT ATTORNEY COVINGTON, LA ATTORNEYS FOR STATE OF LOUISIANA HOLLI HERRLE-CASTILLO LOUISIANA APPELLATE PROJECT MARRERO, LA ATTORNEY FOR DEFENDANT-APPELLANT WILLIAM WASHINGTON
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of Washington, Louisiana
Trial Court No. 15-CR6-128599
Honorable Richard A. Swartz, Judge WARREN L. MONTGOMERY
DISTRICT ATTORNEY
RONALD GRACIANETTE
ASSISTANT DISTRICT ATTORNEY
FRANKLINTON, LA
AND
MATTHEW CAPLAN
ASSISTANT DISTRICT ATTORNEY
COVINGTON, LA ATTORNEYS FOR
STATE OF LOUISIANA HOLLI HERRLE-CASTILLO
LOUISIANA APPELLATE PROJECT
MARRERO, LA ATTORNEY FOR
DEFENDANT-APPELLANT
WILLIAM WASHINGTON BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ. PETTIGREW, J.
The defendant, William Washington, was charged by bill of information with simple burglary, a violation of La. R.S. 14:62. He pled not guilty and, following a jury trial, was found guilty of the responsive offense of attempted simple burglary. See La. R.S. 14:27. The State subsequently filed a habitual offender bill of information. Following a hearing on the matter, the defendant was adjudicated a second-felony habitual offender and sentenced to six years imprisonment at hard labor, without probation or suspension of sentence. The defendant now appeals, designating two assignments of error. We affirm the conviction, habitual offender adjudication, and sentence.
The defendant had a prior conviction for failure to register as a sex offender, a violation of La. R.S. 15:542.
FACTS
On June 18, 2015, T.J. Butler, Jr. was at his home on 18th Avenue in Franklinton. At about 8 a.m., he opened his garage door, and then went back inside to get dressed. As Butler went back toward the garage, from inside the house, he looked through the house door window that led to the garage and saw the defendant walking into his garage shed. The shed was located in the back of the garage. Butler opened the door and yelled at the defendant to get out. The defendant quickly left. Butler called the police and identified the person in his shed as the defendant, whom Butler knew from the neighborhood. Nothing had been taken from Butler's shed. A cane knife that Butler always stored on a shelf in the shed was found on the shed floor.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the trial court erred in denying his cause challenges of two prospective jurors. Specifically, the defendant contends that Andrew Bourg and Paulette Brown indicated they would not require the State to prove the intent element of simple burglary. Further, Bourg stated the defendant was not entitled to the presumption of innocence.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination of prospective jurors and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1 Cir.), writ denied, 468 So.2d 570 (La. 1985). 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. A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Martin, 558 So.2d 654, 658 (La. App. 1 Or.), writ denied, 564 So.2d 318 (La. 1990).
A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. La. Code Crim. P. art. 800(A). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been error warranting reversal of the conviction, the defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280-1281.
Because Judge Richard A. Swartz rehabilitated the prospective jurors as a group, we address Bourg and Brown together. Defense counsel raised cause challenges for Bourg and Brown, which Judge Swartz denied. Defense counsel then peremptorily struck Bourg and Brown and, thus, they did not serve on the jury.
It is undisputed that defense counsel exhausted all his peremptory challenges before the selection of the sixth juror. Therefore, we need only determine the issue of whether the trial court erred in denying the defendant's cause challenges of Bourg and Brown.
The crime of simple burglary is punishable by a fine of not more than $2,000.00, imprisonment with or without hard labor for not more than twelve years, or both. La. R.S. 14:62(B). Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. La. Code Crim. P. art. 782(A). In trials of offenses punishable necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the State twelve for each defendant. In all other cases, each defendant shall have six peremptory challenges, and the State six for each defendant. See La. Code Crim. P. art. 799. --------
Louisiana Code of Criminal Procedure article 797, states, in pertinent part:
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[.]
During voir dire, the prosecutor defined the crime of simple burglary and asked Bourg if he could accept the law as just read to him. Bourg replied, "Yes." Bourg further indicated he had no problem with the law on a "personal level." Bourg also indicated he had no problem with the definition of reasonable doubt. Likewise, Brown indicated that if she was convinced of the defendant's guilt at the conclusion of the case, she could return a guilty verdict.
Later, defense counsel during voir dire asked Bourg if his client, the defendant, was entitled to the presumption of innocence. Bourg stated, "No, sir." When defense counsel asked Brown if the defendant was still entitled to the presumption of innocence even though he had been arrested, she replied, "Yes."
Defense counsel then provided a lengthy, sometimes confused, explanation of the concept of proof beyond a reasonable doubt. The following exchange then took place between defense counsel and Bourg:
BY MR. KNIGHT [defense counsel]: They have to prove what was his intent upon entering[,] if they can do that. If they fail to prove that beyond a reasonable doubt what would your verdict be, Mr. Bourg? Fail to prove his intent, if they prove he went in without authority, prove he went into a structure, or building, or a vehicle, or watercraft, but they fail to prove what his intent was, why did he go in there, you have a doubt about that, they didn't presume he went in there innocently, they didn't prove to you beyond a reasonable doubt that he had the specific intent to commit a theft or felony therein, what would your verdict be?
BY MR. BOURG: Guilty.
Shortly thereafter, the following exchange with defense counsel and another prospective juror (including Bourg) took place:
BY MR. KNIGHT: How about you, Ms. Perry?
BY MS. [PERRY]: I don't know if he went in there, if he went in there he went in there for something. So, I don't know.
BY MR. KNIGHT: Yea, but the State has to prove that.
BY MS. [PERRY]: If it is not his, he went in there. The idea of it is he went in there, he went in there for something, to take something. I think he's guilty.
BY MR. KNIGHT: So, you're assuming he had the specific intent to commit a theft or a felony therein, right?
BY MS. [PERRY]: Yes.
BY MR. KNIGHT: And you're not going to make the State prove it, are you? It is okay if you won't.
BY MS. [PERRY]: I'm giving you -- you asked me my opinion.
BY MR. KNIGHT: I did.
BY MS. [PERRY]: I think he went in there for something.
BY MR. KNIGHT: Okay. You too, Mr. Bourg?
BY MR. BOURG: Yea.
Following this, defense counsel asked the prospective jurors what their votes would be if the State did not prove every element of the crime beyond a reasonable doubt. The following exchange between defense counsel and Brown took place:
BY MS. BROWN: I would have to say guilty.
BY MR. KNIGHT: You have to say guilty?
BY MS. BROWN: I have to because he went for some reason, you ain't just going to go for nothing. That's what I say.
BY MR. KNIGHT: Even though the State fails to prove it?
BY MS. BROWN: I have to look at all of the evidence, but as I see it, guilty. That's how I see it, but I have to see the evidence first, but you say go in a [person's] house for nothing, you know, you are going to take something.
At the conclusion of defense counsel's questioning, Judge Swartz stated, in pertinent part:
Ladies and gentlemen, we have had some interesting discussion this afternoon about a number of different issues. So, I want to make sure everybody is clear that what we want here are fair and impartial jurors. The law provides that there is a presumption of innocence and Mr. Knight was absolutely correct, there is a presumption of innocence until the State proves its case beyond a reasonable doubt the defendant in this case is presumed to be innocent. Does everybody understand that?
Can everybody accept that and apply that law?
Anybody that would have a problem with that, raise your hand. [The record does not indicate whether any hands were raised.]
After more elaboration, Judge Swartz then stated:
The question of intent, and Ms. Perry had a very good answer about that, the State has to prove their case beyond a reasonable doubt on all those elements that I will tell you that are part of the crime. Intent, you have to have -- a person has to have the intent to go into the structure to either commit a theft or a felony therein. That's something the State has to prove. Of course you get to look at all the circumstances surrounding what happened. Yes, if there is a fire in the house and he breaks a window and goes in to save somebody he is not going in with the intent to commit a felony or theft therein, but maybe there isn't that reason, but the State has to prove that. You have to accept that they have to prove that. Is anybody just going to say the State doesn't have to prove that and we are going to find him guilty just because he goes into the house? Anybody? If you are raise your hand. [The record does not indicate whether any hands were raised.]
Now, is there any reason after I have gone through those things that you feel that you cannot be a fair and impartial juror?
Let me just check with Ms. Bond here because apparently, I don't know this for a fact, but apparently Mr. T.J. Butler is the victim in this case?
BY MR. GRAC1ANETTE [counsel for the State]: Yes.
BY THE COURT: And Mr. Gracianette has indicated that to me.
So, Ms. Bond, after you listen to all of the evidence in this case including the testimony, and you feel that Mr. Washington is not guilty, are you going to find Mr. Washington guilty just because you know Mr. T.J. Butler, or is that going to be a problem for you if you find him not guilty? Is that going to be a problem that you will not be able to explain that to Mr. Butler?
BY MS. BOND: No.
BY THE COURT: But you do feel uncomfortable sitting as a juror in this case?
BY MS. BOND: Yes.
BY THE COURT: All right. Thank you.
Anybody else? Anything?
We need fair and impartial jurors. Is there any reason anybody could not be a fair and impartial juror in this case? I know you don't want to do this, a lot of you and I understand that completely, it is a difficult task judging people, I understand that probably better than anybody sitting in that jury box. So, if you can't be a fair and impartial juror please raise your hand right now.
Mr. Thompson and Mr. Wilson think that they cannot be fair and impartial, and Ms. Bond is uncomfortable.
Anybody else? [The record does not indicate whether any hands were raised.]
All right. We are going to conduct our jury selection outside of your presence[.]
At the following bench conference, defense counsel, in challenging Bourg for cause, argued that despite the State failing to prove specific intent, Bourg would still find the defendant guilty. Also, according to defense counsel, Bourg would not give the defendant the presumption of innocence. The prosecutor responded: "If I recall correctly we used the busted window example, and I think that particular juror may have been confused about the circumstances of his answer. I think the Court cleared it up at the end of the voir dire, and he therefor would be an appropriate juror." To this Judge Swartz replied, "I think that's correct," and denied the cause challenge.
In challenging Brown for cause, defense counsel argued that Brown would still find the defendant guilty even though the State failed to prove beyond a reasonable doubt the defendant had the specific intent to commit a felony or theft. In denying the cause challenge, Judge Swartz replied: "Again, I think that was cleared up after your voir dire. Nobody indicated they would not follow the law and further there [were] no real good examples given by defense counsel concerning that particular issue."
We find no reason to disturb Judge Swartz's rulings in denying the cause challenges. While Bourg and Brown, during defense counsel's questioning on voir dire, appeared to have some issues with understanding precisely what the law was or applying the law correctly, it was not clear if it was because they were confused by the questions being asked or that they genuinely felt they could not be impartial. In any event, it is clear from the entire voir dire record before us that whatever issues Bourg or Brown had were cleared up by Judge Swartz. Although his explanation was addressed to the entire group of prospective jurors, of which Bourg and Brown were a part, Judge Swartz made it a point to carefully explain the presumption of innocence; the law of intent and the State's burden to prove intent; and the requirement that a juror be fair and impartial. Following each of these three explanations, Judge Swartz asked the prospective jurors to raise their hands if they had a problem with anything that had been explained. The record does not show that either Bourg or Brown raised his/her hand, which suggests they understood the law and that they could be fair and impartial.
It should be noted that when Judge Swartz asked the jurors to raise their hands if they had a problem, the voir dire transcript does not indicate parenthetically or otherwise that no hands were raised. We do not take this to mean that some hands may have been raised, but were just not indicated by the court reporter. We make this finding because when Judge Swartz stated, "So, if you can't be a fair and impartial juror please raise your hand right now," at this point, apparently two or three prospective jurors, not Bourg or Brown, raised their hands because Judge Swartz immediately addressed them after asking them to raise their hands. Judge Swartz stated, "Mr. Thompson and Mr. Wilson think that they cannot be fair and impartial, and Ms. Bond is uncomfortable." Accordingly, it is clear that if any other prospective juror had raised his or her hand during the times Judge Swartz asked them to do so, Judge Swartz would have acknowledged this and addressed them by name.
In any event, a prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. See State v. Lee, 559 So.2d 1310, 1318 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991); State v. Copeland, 530 So.2d 526, 534 (La. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). See also State v. Kang, 2002-2812, pp. 7-9 (La. 10/21/03), 859 So.2d 649, 654-55.
The line-drawing in many cases is difficult. Accordingly, the trial judge must determine the challenge on the basis of the entire voir dire and on the judge's personal observations of the potential jurors during the questioning. Moreover, the reviewing court should accord great deference to the trial judge's determination and should not attempt to reconstruct the voir dire by a microscopic dissection of the transcript in search of magic words or phrases that automatically signify the jurors' qualification or disqualification. See State v. Miller, 99-0192, p. 14 (La. 9/6/00), 776 So.2d 396, 405-06, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).
Despite the defendant's assertions, we find that Bourg and Brown were sufficiently rehabilitated by Judge Swartz. Judge Swartz was in the best position to determine whether Bourg and Brown could discharge their duty as jurors. Upon reviewing the voir dire in its entirety, we cannot say that Judge Swartz abused his discretion in denying defense counsel's cause challenges.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the evidence was insufficient to support the conviction for attempted simple burglary.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, p. 5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141,144.
Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein. See La. R.S. 14:62(A).
Specific intent to commit a felony or a theft at the time of his unauthorized entry is required for attempted simple burglary. La. R.S. 14:27 and 14:62; State v. Jones, 426 So.2d 1323, 1325 (La. 1983); State v. Marcello, 385 So.2d 244, 245 (La. 1980). Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1 Cir. 1986).
Louisiana Revised Statutes 14:27 defines an attempt, in pertinent part, as:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.Accordingly, to be found guilty of attempted simple burglary, a defendant must have a specific intent to make an unauthorized entry of any dwelling, vehicle, watercraft, or other structure to commit a felony or any theft therein. See State v. Davis, 546 So.2d 843, 847 (La. App. 1 Cir. 1989).
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt[.]
The defendant argues in brief that, while Butler saw him inside his garage and shed, Butler did not see him "doing anything much less anything that proves an intent to commit a theft or felony." While nothing from the shed was missing, Butler noticed that his cane knife was on the floor instead of in its usual place on the shelf. The defendant suggests that a moved knife is not proof that he intended to take it. The defendant further suggests that the knife could have fallen off the shelf and onto the floor on its own. The defendant also notes that a few days before the incident, he was seen laying mulch around three bushes near Butler's garage. The defendant was using Butler's mulch without his permission. When Butler confronted the defendant about this, the defendant told him the lady of the house had asked him to do it. Butler's wife had been dead for years, and Butler lived alone. The defendant suggests in brief that clearly he (the defendant) "was confused."
According to Butler, his shed door was always closed but not locked. The shed was in the back of the garage and, according to Butler, because there was a vehicle in the garage, the defendant would have had to "squeeze" by in order to get to the shed. It is unlikely that Butler's knife fell to the floor on its own. According to Butler, he found his cane knife, similar to a machete, on the shed's floor. While not entirely clear, it appears the knife had been removed from its sheath or scabbard, referred to by Butler as a "scabbage." When asked on direct examination if anything had been disturbed in his shed, the following exchange took place:
BY MR. BUTLER: When I walked in, I just looked around. But then I saw a -- what I would call a cane knife, machete type. It was on the floor. Now, it was in the scabbage [sic] on the shelf. But this one was down on the floor.
BY MR. GRACIANETTE: Do you remember keeping it in that location earlier?
BY MR. BUTLER: I sure do.
BY MR. GRACIANETTE: So somebody had to come in there -
BY MR. BUTLER: Somebody had to move it.
According to Officer Clay Arceneaux, with the Franklinton Police Department, he arrived at the scene shortly after Butler called the police and observed a pile of tools in the middle of the garage floor between two vehicles in the garage. Officer Arceneaux testified, "Everything else was clean and immaculate. But there was this pile like somebody had gathered them up." Officer Arceneaux later testified that the tools "were very out of place where they were."
Based on Officer Arceneaux's testimony, the jury could have reasonably concluded that the defendant was likely looking for something, perhaps something small enough to be able to carry on his person when he left the garage. Having heard that the defendant lied to Butler a few days before the current incident about having been given permission by Butler's wife to place mulch around his house, a reasonable juror could have also concluded that the defendant was mulching as a ruse to note entry points into Butler's garage and/or shed or to "case" Butler's home. In any event, given the peculiar facts of this case and that it takes only an instant to form specific intent, see Cousan, 94-2503 at 13, 684 So.2d at 390, it was not unreasonable for the jury to conclude that the defendant went inside Butler's shed, if only for a brief time and despite not having taken anything, with the specific intent to commit a theft. See Graham, 420 So.2d at 1127.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985).
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdict in this case reflected the reasonable conclusion that the defendant entered Butler's property, came upon his shed, went inside the shed looking for something to take and either decided he did not want anything or ran off when he heard Butler yelling at him to get out. In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. See Moten, 510 So.2d at 61.
After a thorough review of the record, we find the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of attempted simple burglary. See State v. Calloway, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit. CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.