Opinion
2018 KA 0990
04-24-2019
STATE OF LOUISIANA v. ANDRE YOUNG
Bruce G. Whittaker Louisiana Appellate Project New Orleans, Louisiana Attorney for Defendant/Appellant Andre Young Hillar C. Moore III District Attorney and Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 19th JUDICIAL DISTRICT COURT
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 10-14-0675 HONORABLE RICHARD D. ANDERSON, JUDGE Bruce G. Whittaker
Louisiana Appellate Project
New Orleans, Louisiana Attorney for Defendant/Appellant
Andre Young Hillar C. Moore III
District Attorney
and
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, Louisiana Attorneys for Appellee
State of Louisiana McDONALD, J.
The defendant, Andre Young, was charged by grand jury indictment with ten counts of armed robbery, violations of LSA-R.S. 14:64 (counts 1, 3, 4, 9, 10, 11, 15, 22, 23, and 24); six counts of attempted armed robbery, violations of LSA-R.S. 14:27 and 14:64 (counts 2, 12, 16, 18, 20, and 21); two counts of aggravated rape (redesignated as first degree rape), violations of LSA-R.S. 14:42 (counts 7 and 8); two counts of second degree kidnapping, violations of LSA-R.S. 14:44.1 (counts 5 and 6); two counts of attempted second degree murder, violations of LSA-R.S. 14:27 and 14:30.1 (counts 13 and 17); and two counts of simple burglary, violations of LSA-R.S. 14:62 (counts 14 and 19). The defendant pled not guilty to all counts and, following a jury trial, was found guilty as charged on all counts, except for counts 20 and 21, for which he was found not guilty.
The victims associated with counts 20 and 21 did not testify at trial.
For each armed robbery conviction, the defendant was sentenced to 20 years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence; for each attempted armed robbery conviction, he was sentenced to 20 years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence; for each aggravated rape conviction, he was sentenced to life imprisonment, without benefit of parole, probation, or suspension of sentence; for the second degree kidnapping conviction on count 5, he was sentenced to 40 years imprisonment, without benefit of parole, probation, or suspension of sentence; for the second degree kidnapping conviction on count 6, he was sentenced to 40 years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence; for each attempted second degree murder conviction, he was sentenced to 50 years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence; for each simple burglary conviction, he was sentenced to 12 years imprisonment at hard labor. The trial court ordered the sentences for the aggravated rape convictions and the attempted second degree murder convictions to run consecutively; the trial court ordered all other sentences to run concurrently.
The defendant now appeals, designating three assignments of error. We affirm the convictions. We affirm the sentences on counts 1-4, 6, 9-19, and 22-24. We amend the sentences on counts 5, 7, and 8 by providing that they are to be served at hard labor and affirm as amended.
FACTS
On the early morning of Sunday, July 27, 2014, the defendant embarked on a crime spree in Baton Rouge, Louisiana, for about four hours. When he was apprehended by about 8:00 a.m., he had claimed 16 victims. The account of the 22 crimes committed by the defendant on this single day follows.
N.H. and her sister S.H. were standing by N.H.'s car in a parking lot at the corner of McClelland Drive and Greenwell Street in the Brookstown area after having gone to some clubs. They were with Anthony Shaffer, N.H.'s high school classmate, and his friend, David Gradnigo. The defendant and two other men approached the group and told them to give them what they had. The defendant and one of the other men had handguns. The defendant and his cohorts took money and jewelry from N.H. and David, as well as David's cell phone. They took Anthony's money, watch, and two iPhones. Anthony ran and got hit by a truck; he got up and continued to run. David ran and began knocking on doors for help.
The victims are referenced by their initials. See LSA-R.S. 46:1844W. N.H. testified S.H. was her sister; S.H. testified N.H. was her godsister.
When two of the perpetrators said they were leaving, the defendant said he was staying with N.H. and S.H. and that they were going to drive him home. The defendant gave his gun to one of his cohorts and told N.H. and S.H. that he still had a gun in his pocket. In N.H.'s car, the defendant drove N.H. and S.H. to Evangeline Park (a BREC Park) on Winbourne Avenue. The defendant made them walk near the basketball court. The defendant put on a condom and told the women to take off their clothes. S.H. took off her dress, but N.H. just lifted her dress. The defendant pushed S.H. on her knees and forced her to perform fellatio on him. He then pushed S.H. on the ground and vaginally raped her. The defendant then grabbed N.H., sat on a park bench, and forced N.H. to straddle him, where he vaginally raped her. S.H. grabbed a tree branch and swung it at the defendant, causing him to move away and lose his balance. N.H. and S.H. ran out of the park to N.H.'s daughter's house, which was nearby.
Leon Hixon was driving his Lexus 300 on or near Ontario Street. The defendant pulled in front of Leon. The defendant got out of the car he was driving and began pushing the back of it, feigning that the car stopped running. Leon, still in his car, asked the defendant if he needed help. The defendant pulled a gun and pointed it at Leon's face. The defendant ordered Leon out of his car and took his cell phone and $81 from him. The defendant then left the scene in Leon's car.
Willie Harris Jr., who lived on Huron Street, was outside when he saw the defendant in a car in front of his house. The defendant was feigning that he had car trouble. When Willie approached him, the defendant got out of the car, pointed a handgun at Willie, and told him to "give up." The defendant took about $35 in cash and a small pistol that Willie was carrying on his side. The pistol, a Texas Bond stock barrel gun, was loaded with .410 No. 6 shot (rabbit shots).
Ellis Hughes lived on North Acadian Thruway in an apartment, and two of his neighbors, Walter Polk Jr. and Jerry Thompson, lived nearby on Ontario Street. Ellis went to Walter's house to use his phone. As Ellis was outside and Walter was standing in his doorway, the defendant approached them with a gun. Ellis tried to run, and the defendant knocked him to the ground. Ellis crawled under a trailer. The defendant turned the gun to Walter, and Walter fell to the ground. The defendant then went after Ellis, grabbed him by the pants, and demanded Ellis give him the cell phone or he would kill him. The defendant took Walter's phone, and Ellis began hollering for help. Jerry Thompson began walking across the street to help Ellis. Jerry then turned to run, and the defendant shot him in the stomach. Jerry crawled under a white work truck, owned by Marlon Taylor. The defendant went inside the work truck, took an iPad or an iPhone, and then left. Jerry survived his injury.
Jacqueline Paul was on McClelland Drive walking to the store to buy cigarettes. The defendant approached her with a gun and told her to give him her money. She had no money, so the defendant took her cell phone.
Marquise Johnson was standing at a bus stop on Hollywood Street. The defendant drove up, pointed a gun at Marquise, and told him to give him everything he had. Marquise gave him two dollars and the defendant drove away.
Reginald Lee was outside in the driveway washing his wife's car on Dalark Drive. The defendant pulled into his driveway, opened the door, pointed a gun at Reginald, and told him, "Give it up. Empty your pockets." Reginald ran. The defendant ran after him. Reginald slipped and fell. The defendant caught up to him and shot him in the back. The defendant struck Reginald in the head three times with his gun. The defendant then went to Reginald's wife's car in the driveway and took her CDs and car charger. Reginald was brought to the hospital and survived his injuries.
Oscar Patterson was outside his house on Glen Oaks Drive. The defendant pulled up, and as he got out the car, his gun got caught on the seatbelt. Oscar went inside. The defendant went to the door and told Oscar to give him the money or he would kill him. Oscar's wife called 911.
Felix Parms was on Silverleaf Avenue, walking up the driveway of the house of his neighbor, Larry Lee. Larry was sitting in his carport. The defendant pulled up in a car, got out with a gun, and took Felix's cell phone and $8 from Larry. The defendant then forced Felix and Larry into Larry's house. The defendant searched around Larry's house, took $400 out of Larry's wife's purse, then left.
Later that same morning, the defendant, in Leon's Lexus 300, drove down the street where N.H. and S.H. were talking to detectives. N.H. saw the defendant in the car and identified him as the person who had kidnapped, raped, and robbed them that morning. A car chase ensued and the police apprehended the defendant shortly thereafter. The police found him hiding under a house on Shelley Street. The police brought N.H. and S.H. to the scene where the defendant was being held, and the women identified him. Some of the items the defendant had taken that morning were under the house or still on him, including about eight cell phones.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the defendant argues the trial court erred in denying defense counsel's motion to withdraw. Specifically, the defendant contends there was a conflict of interest because the East Baton Rouge Office of the Public Defender (OPD) had defended defendants in the past who were victims in the instant matter.
The issue of conflicting loyalties usually arises in the context of joint representation but can also arise where an attorney runs into a conflict because he or she is required to cross examine a witness who is testifying against the defendant and who was or is the attorney's client. State v. Kirkpatrick, 443 So.2d 546, 552 (La. 1983). If an objection to a possible conflict of interest is raised pretrial, the trial court must appoint separate counsel or determine if the claimed risk is too remote. If an objection to a possible conflict is not raised until after trial, the defendant must show he was actually prejudiced. State v. Tart, 93-0772 (La. 2/9/96), 672 So.2d 116, 125.
The defendant in brief notes that one of the defense attorneys, Jacie Saunders of the OPD, filed a motion to withdraw as counsel due to conflict before trial. In his brief, the defendant claims that the OPD had conflicts with several victims/witnesses who testified at his trial. The written motion to withdraw listed the victims in the instant trial whom OPD had formerly represented as defendants, namely, N.H.; Jacqueline Paul; Ellis Hughes; Walter Polk Jr.; Reginald Lee; Marquise Johnson; and Anthony Shaffer. According to the written motion, it would be necessary to introduce confidential information (e.g., personal, mental health, criminal) concerning these witnesses to adequately represent the defendant.
Gregory Gosserand and David McCallop, who were also on the list, did not testify at trial.
In his first assignment of error, the defendant mentions the Rules of Professional Conduct. The State in brief provides the text of the Rules of Professional Conduct 1.7 and 1.9 and concludes these rules "do not apply here." The conflict issue in this assignment of error is fully resolved without resort to the Rules of Professional Conduct.
At the hearing on the motion to withdraw, Ms. Saunders, one of the defendant's two OPD attorneys, argued there were several conflicts with her office due to its representation of victims in the instant case, including Jacqueline Paul, who was being represented in a juvenile court matter. Ms. Saunders did not know if OPD was appointed to Jacqueline Paul's case before or after the appointment of the instant matter. While Ms. Saunders had not represented any of the victims on the list, she argued there would still be a conflict because she would be required to cross examine these witnesses.
The trial court inquired whether there was any overlap or connection whatsoever, factually or legally, with the cases of these current victims/former defendants and the defendant's case. Ms. Saunders replied, "No." Ms. Saunders averred, however, that they had a duty not to divulge any confidential information of their former clients. In response, the prosecutor noted that Jacqueline Paul's prior matter was in June of 2010 when she was charged with unauthorized use of a motor vehicle; and, as such, she (the prosecutor) failed to see how a seven-year-old case presented an actual conflict with OPD. Further, regarding Jacqueline Paul's current case, details about that case would not be permitted anyway at trial because it was a juvenile matter.
The trial court noted that Jason Hessick had represented the defendant for two years on the instant matter before Ms. Saunders and Sara Anderson Clarke, the defendant's other OPD attorney, took over the case; and Ms. Saunders agreed with the trial court that the time for conflict checks would have been at the beginning of the representation, not almost three years "down the road" when the matter was set for trial. Finding no actual conflict, the trial court denied the motion to withdraw.
We find no reason to disturb the trial court's denial of the motion to withdraw. The victims listed in the written motion were formerly (only Jacqueline Paul was listed as "currently") represented by the OPD and, aside from the mere assertion, defense counsel did not establish in any way how cross examination of these witnesses at trial, wherein confidential information might be adduced, would affect either them or the defendant. Moreover, from the list of current victims/former defendants in the written motion to withdraw, it is not clear who represented any of these former defendants. It was determined at the hearing, however, that Ms. Saunders did not represent any of them. It is not even clear if Ms. Clarke or Ms. Saunders was with the OPD when these former defendants were represented by the OPD. Moreover, there was nothing in the cross examination of any of these victims that addressed sensitive or confidential information such that an actual conflict arose. See State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d 590, 619 (finding that, even if a defendant proves an actual conflict, he still must show that a "lapse in representation" resulted from the conflict); State v. Tart, 672 So.2d at 125-26. It should be noted as well that any witness (including a victim) who takes the stand is required, if questioned about it, to reveal his or her prior convictions. See LSA-C.E. art. 609.1; State v. Tolbert, 03-0330 (La. 6/27/03), 849 So.2d 32, 37-38.
It is clear in its denial of the motion to withdraw that the trial court found that the claimed risk of conflict was too remote. See Tart, 672 So.2d at 125. Nevertheless, the first step in the analysis of an alleged conflict of interest raised either pretrial or post-trial is whether an actual conflict of interest existed. State v. Goodeaux, 17-441 (La. App. 3 Cir. 11/2/17), 231 So.3d 124, 133, writ denied, 17-2143 (La. 9/14/18), 252 So.3d 488. We find that under the facts as presented by Ms. Saunders at the motion to withdraw hearing, the defendant failed to show that his counsel labored under a conflict of interest while representing him at the instant trial. See Id. Any potential conflict of interest regarding prior representation of the victims in the instant matter never became an actual conflict. An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties. State v. Carmouche, 508 So.2d 792, 804 (La. 1987) (on rehearing). While Ms. Clarke and Ms. Saunders owed a duty to the defendant, there is nothing in the above facts to suggest that there was some other party to whom they owed a duty and whose interests were adverse to the defendant. The defendant has failed to show any actual conflict and, accordingly, the trial court did not abuse its discretion in denying the motion to withdraw. See Goodeaux, 231 So.3d at 133. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the defendant argues the trial court erred in denying his cause challenges of prospective jurors David Bayhi and Salvador Maddie Jr. Specifically, the defendant contends that their answers during voir dire indicated these prospective jurors could not be impartial or apply the law as explained to them.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. LSA-Const. art. I, §17A. 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. 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 Cir. 1990).
A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. See LSA-C.Cr.P. art. 800A. Prejudice is presumed when a trial court erroneously denies a challenge for cause 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, 1280-81.
Defense attorney Clarke challenged prospective juror David Bayhi for cause, which the trial court denied. Mr. Bayhi was peremptorily struck by defense counsel and, thus, did not serve on the jury of the defendant's trial. The defendant in brief claims defense counsel used only 11 peremptory strikes, based on the minute entries. The peremptory challenge sheets, however, indicate that defense counsel used all 12 peremptory strikes. We find the peremptory challenge sheets controlling here. See State v. Lutcher, 94-0291 (La. App. 1 Cir. 3/3/95), 652 So.2d 545, 546 n.1. Accordingly, it is undisputed that defense counsel exhausted all of her peremptory challenges before the selection of the twelfth juror. Therefore, we need only determine the issue of whether the trial court erred in denying the defendant's cause challenge of Mr. Bayhi.
The voir dire transcript itself does not reveal the peremptory strikes used by the State and defense counsel. While cause challenges were made part of the appellate record, peremptory strikes were discussed at unrecorded bench conferences.
The crime of attempted second degree murder is punishable by imprisonment at hard labor. LSA-R.S. 14:30.1B and LSA-R.S. 14:27. Cases in which the punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must concur to render a verdict. LSA-Const. art. I, §17A (amended by 2018 La. Acts No. 722, §1, effective 12/12/18); LSA-C.Cr.P. art. 782A. In trials of offenses punishable necessarily by imprisonment at hard labor, each defendant shall have 12 peremptory challenges. See LSA-C.Cr.P. art. 799.
Ms. Clarke challenged prospective juror Salvador Maddie Jr. for cause, which the trial court denied. Mr. Maddie, however, was an alternate prospective juror peremptorily struck by defense counsel. The trial court had given the attorneys two peremptory strikes each to pick two alternate jurors. Defense counsel used only one strike before both alternate jurors were picked. Accordingly, since the defendant did not use all of his (alternate) peremptory strikes before the alternate jurors were picked, prejudice is not presumed. Nevertheless, under LSA-C.Cr.P. art. 800A, a defendant may complain of a ruling denying his challenge for cause even if he does not exhaust all his peremptory challenges. Robertson, 630 So.2d at 1280. But, in such a case, the defendant must be able to show some prejudice to overcome LSA-C.Cr.P. art. 921's requirement that a judgment or ruling shall not be reversed by an appellate court because of any error which does not affect substantial rights of the accused. See Id.
Louisiana Code of Criminal Procedure article 797 pertinently states:
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; [or]
* * * *
(4) The juror will not accept the law as given to him by the court[.]
The defendant asserts in brief that Mr. Bayhi could not be impartial because he was biased against indigent individuals, such as the defendant. Mr. Bayhi had indicated, as noted by the defendant, that he thought that African Americans committed crime at a higher rate in the New Orleans area, where he previously lived.
During questioning by Ms. Clarke, Mr. Bayhi indicated he had been a victim of crime, namely that his house in New Orleans had been "robbed" in 1984 and in 1996. Mr. Bayhi noted that he had lived in a nice area, but that "Section 8 and HUD ... [were] just dumped on us." The following relevant exchange then took place:
[Ms. Clark]: Mr. Bayhi, back to my original question. Do you believe that African Americans or blacks or any other ethnicity commit crime at a higher rate than other individuals?
[Mr. Bayhi]: I would. Yeah. At least in that area of New Orleans East. Yeah.
[Ms. Clarke]: And what about in Baton Rouge?
[Mr. Bayhi]: I would say probably a majority of it. Yeah.
[Ms. Clarke]: Okay. So it's no mistaking that, you know, Mr. Young is an African American male.
[Mr. Bayhi]: (Nodded head.)
[Ms. Clarke]: Do you take into account his race as to whether or not he's more likely to have committed a crime or not?
[Mr. Bayhi]: No.
[Ms. Clarke]: If you learned or found out what socioeconomic class he came from, would that affect your decision?
[Mr. Bayhi]: No.
* * * *
[Ms. Clarke]: Mr. Bayhi, how would you tell -- how would you tell me that you would be able to judge the credibility of someone that you don't know? How would you go about that?
[Mr. Bayhi]: Credibility? I guess it would be their family members, friends, background.
[Ms. Clarke]: Okay. What if the testimony that you hear from the stand does not involve testimony from family, friends? May be limited background. How would you judge whether or not that person is credible to you?
[Mr. Bayhi]: I would have to have --- I'd have to have probably some of those background, friends, family members. Other than that, I don't know.
[Ms. Clarke]: Okay. Are you saying that you don't think you would be able to effectively judge their credibility without that?
[Mr. Bayhi]: If I don't know them, then yeah. Probably, probably not.
[Ms. Clarke]: Okay. What kinds of things would you need to see other than family, background, friends?
[Mr. Bayhi]: Well, I mean, really a resume' would be -- if you don't know someone, you would have to put feelers out. So you would have to have, you know, the friends, the family member, neighbors to find out about the person, you know. I mean that's about the only way you can really find out about someone.
* * * *
[Ms. Clarke]: Okay. Mr. Bayhi, what about you? From your collective social experience, is there anything that you would bring in that would perhaps make it difficult or cause you be biased in one way or the other?
[Mr. Bayhi]: No.
At a subsequent bench conference, Ms. Clarke challenged Mr. Bayhi for cause. Following is the relevant exchange between Ms. Clarke and the trial court:
[Ms. Clarke]: Mr. Bayhi, juror no. 306. On his jury sheet he put in there that the robberies and the crimes occurred after a Section 8 invasion. And upon questioning him about whether or not he knew any of the people or whether anybody was caught, he indicated no. So he automatically assumed that it was due to the Section 8 invasion, which, of course, Section 8 individuals are individuals that are indigent, as is our client. And so it seems as if my question from his testimony, that he is willing to and has made the assumption that persons of a lower socioeconomic status are more prone to crime and, in fact, do do [sic] crime, even without having proof of anyone from Section 8 having done that crime.
[The Court]: [The prosecutor] objected to some of your follow-up questions about this. I overruled that and let you ask all the questions. And Mr. Bayhi answered the questions that you asked. And I think his answers indicated that he wouldn't base his verdict on race. As a matter of fact, I think he indicated he wouldn't base it on anything other than the evidence. Denied.
The defendant further asserts in brief that prospective juror Maddie would not be able to accept the law as given to him by the court. According to the defendant, Mr. Maddie made it clear he could not put aside pre-conceived notions and prejudices and judge this case impartially. The defendant contends in brief that Mr. Maddie stated he had family members in law enforcement and that he had been the victim of property crime. The defendant is incorrect. Prospective juror Lee made these statements.
The other defense attorney, Ms. Saunders, questioned Mr. Maddie about the defendant's right not to testify. Following is that relevant exchange:
[Ms. Saunders]: Okay. Why might somebody -- if somebody is not guilty and, you know, they absolutely firmly, you know, have -- they don't have an alibi. They don't have anybody to come in and say, "No. I saw him and he was not where you're saying he was." There's no one there who can say for certain that, you know, "I didn't see that guy that's sitting right there, but I saw somebody else do it." If that's not the case, then why wouldn't the person get on the stand and, you know, just let everybody know he didn't do it? Mr. Maddie?
[Mr. Maddie]: That would be a good question. Why wouldn't he?
[Ms. Saunders]: Okay.
[Mr. Maddie]: There's no reason why he shouldn't if he knows that he did not do it.
[Ms. Saunders]: Okay. Can you think of some reasons maybe why he wouldn't do that?
[Mr. Maddie]: No. Why wouldn't he? I mean, if that person knows that he's not guilty and he does not approach the stand to give the -- what -- his belief -- I don't think they would just sit there and not get on the stand.
[Ms. Saunders]: Okay. Do you think that if a person wouldn't take the stand -- if he's saying he's not guilty at all but there's no evidence whatsoever to prove him not guilty, do you think that that would affect the way you made a decision in a trial?
[Mr. Maddie]: You said there is no evidence that proves that he is not guilty?
[Ms. Saunders]: Right.
[Mr. Maddie]: I have no evidence to refute if you're not going to bring any evidence up. You wouldn't be in court.
[Ms. Saunders]: Okay. But we talked about how the defendant doesn't have to do anything. He doesn't have to say anything because he has a presumption of innocence; right?
[Mr. Maddie]: (Nodded head.)
[Ms. Saunders]: So you're saying that, you know, it would bother you if he didn't get on the stand?
[Mr. Maddie]: Or you have no evidence against him.
[Ms. Saunders]: Against him meaning the State or -
[Mr. Maddie]: Yes.
[Ms. Saunders]: -- no evidence for him to present to show he's innocent?
[Mr. Maddie]: The State.
[Ms. Saunders]: Okay.
[Mr. Maddie]: You wouldn't be in court.
[Ms. Saunders]: Okay. That's a fair answer.
At the bench conference, Ms. Clarke challenged Mr. Maddie for cause. According to Ms. Clarke, Mr. Maddie did not understand the defendant's presumption of innocence and believed that the defendant should take the stand if he were not guilty. The trial court felt Ms. Saunders' questions confused Mr. Maddie and that they were not "seeing eye to eye." Accordingly, the trial court called Mr. Maddie to the stand for further questioning. The following relevant exchange then took place:
The Court: I called you up here just to clarify an answer. And that's about the defendant's presumption of innocence. You understand that?
Mr. Maddie: Yes. But she took it as I was still looking at the TV, taking the TV. If you're bringing it to trial and the defendant doesn't get up on the stand but the -- or the plaintiff didn't have any evidence, no evidence, why would we be in court?
The Court: Right.
Mr. Maddie: If they don't have fingerprints, they don't have any type of witness, they don't have any cameras, they don't have any -
The Court: All right. So in that case -
Mr. Maddie: And the question I asked: Why would we be in court if there is no evidence against the person?
The Court: Right. As far as this case you understand -
Mr. Maddie: This case.
The Court: -- the defendant has a presumption of -
Mr. Maddie: He does not have to get up.
The Court: Right.
Mr. Maddie: Yes.
The Court: Would you hold that against him if he doesn't testify or present any evidence?
Mr. Maddie: No.
The Court: All right. You would rely on the State to prove to you beyond a reasonable doubt that he's guilty before you'd convict him?
Mr. Maddie: Yes.
The Court: All right. Do y'all have any questions?
Ms. Anderson-Clarke: Just the reason that he's in court today, you feel as if that he's done something for him to be in that chair?
Mr. Maddie: He's accused of doing something.
Ms. Anderson-Clarke: Okay. So as he sits here today, you feel like there's some evidence against him?
Mr. Maddie: That is for the State to -- to show the jury. Yes.
Ms. Anderson-Clarke: And do you believe that if he was arrested and put on trial that perhaps [he is] not guilty?
Mr. Maddie: That's correct.
* * * *
The Court: All right. That challenge is denied.
We find no reason to disturb the trial court's rulings in denying the cause challenges. We agree with the trial court that, regarding Mr. Bayhi, he specifically indicated that he would not base his verdict on race. Mr. Bayhi further indicated that the defendant's socioeconomic class would have no bearing on his decision. Finally, Mr. Bayhi indicated to Ms. Clarke that there was nothing in his collective experience that would cause him to be biased in favor of or against the defendant. Similarly, we agree with the trial court that, regarding Mr. Maddie, Ms. Saunders was less than clear in her questioning of this prospective juror about the defendant's presumption of innocence and his right not to testify. When the trial court further questioned him, Mr. Maddie made it clear that he understood the defendant was presumed innocent and that he would not hold it against the defendant if he did not testify or present any evidence.
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); State v. Copeland, 530 So.2d 526, 534 (La. 1988); see also State v. Kang, 02-2812 (La. 10/21/03), 859 So.2d 649, 654-55.
The line-drawing in many cases is difficult. Accordingly, the trial court must determine the challenge on the basis of the entire voir dire, and on the court's personal observations of the potential jurors during the questioning. Moreover, the reviewing court should accord great deference to the trial court'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. State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 405-06; see also State v. Dotson, 16-0473 (La. 10/18/17), 234 So.3d 34, 45-46; State v. Lindsey, 06-255 (La. 1/17/07), 948 So.2d 105, 107-13; State v. Juniors, 03-2425 (La. 6/29/05), 915 So.2d 291, 312-13.
The trial court was in the best position to determine whether Messrs. Bayhi and Maddie could discharge their duties as jurors. Upon reviewing the voir dire in its entirety, we cannot say that the trial court abused its discretion in denying defense counsel's cause challenges. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the defendant argues the trial court abused its discretion in curtailing the exercise of his right to voir dire by imposing a time limit. According to the defendant, the trial court gave each side during voir dire an arbitrary period of one hour per side, per panel, and defense counsel, having "chafed under the unworkable limit," objected accordingly. The defendant suggests that he was curtailed his right to full voir dire.
Our state constitution provides that the accused shall have a right "to full voir dire examination of prospective jurors and to challenge jurors peremptorily." LSA-Const. Art. 1, §17A. Furthermore, LSA-C.Cr.P. art. 786 states that the court, the State, and the defendant shall have the right to examine prospective jurors and that the scope of the examination shall be within the court's discretion. A review of the trial court's discretionary rulings should be undertaken only on the record of the voir dire examination as a whole, or at least upon the entire record of examination of the prospective jurors during which defendant contends such prejudicial curtailment occurred. State v. Roach, 338 So.2d 621, 625 (La. 1976). See State v. Shaw, 00-1051 (La. App. 5 Cir. 2/14/01), 785 So.2d 34, 41-42.
Prior to voir dire in this case, the trial court informed counsel that each side would have one hour and fifteen minutes to conduct voir dire on the first panel, and one hour for each subsequent panel. Over the course of four panels, the trial court told defense counsel Clarke once that her time was up and told defense counsel Saunders once that her time was up. Upon review of the entire voir dire, we find no abuse of the trial court's discretion. Despite the time limitation, defense counsel had ample opportunity to fully question the prospective jurors, as well as to test their competency and impartiality. This is shown by defense counsel's exercising both peremptory challenges and multiple challenges for cause. See Shaw, 785 So.2d at 42; cf. State v. Jones, 596 So.2d 1360, 1365-67 (La. App. 1 Cir. 1992) (finding that despite the 20 minute time limit for voir dire, reversal not required because defendant failed to show he was prejudiced by imposition of the time limitation); contrast State v. Strange, 619 So.2d 817, 820-21 (La. App. 1 Cir. 1993) (finding 10 minute time limit prejudiced defendant). This assignment of error is without merit.
SENTENCING ERRORS
Under LSA-C.Cr.P. art. 920, we are limited in our review to errors designated in assignments of errors and to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found sentencing errors.
For a conviction of aggravated rape (first degree rape), the offender shall be imprisoned at hard labor for life without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:42D(1). For a conviction of second degree kidnapping, the offender shall be imprisoned at hard labor for not less than five nor more than forty years, with at least two years of the sentence imposed without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:44.1C.
According to the sentencing transcript, the trial court failed to provide that the life sentences for each aggravated rape conviction (counts 7 and 8) were to be served at hard labor. For the count 5 second degree kidnapping conviction, the trial court failed to provide that the sentence was to be served at hard labor. Louisiana Code of Criminal Procedure article 920(2) authorizes consideration of such an error on appeal. Further, LSA-C.Cr.P. art. 882A authorizes correction by the appellate court. We find that correction of these illegally lenient sentences does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not simply amend the sentences. Accordingly, since sentences at hard labor were the only sentences that could be imposed on these counts, we correct these sentences by providing that they be served at hard labor. We remand to the trial court for correction, if necessary, of the commitment order, and for transmission of the amended record to the Department of Corrections.
The minute entry of the aggravated rape sentences also indicates the sentences were not imposed at hard labor. The minute entry indicates that both second degree kidnapping sentences were imposed at hard labor. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. LSA-C.Cr.P. art. 882A.
CONVICTIONS AND SENTENCES ON COUNTS 1-4, 6, 9-19, AND 22-24 AFFIRMED; SENTENCES ON COUNTS 5, 7, AND 8 AMENDED TO PROVIDE THAT THEY BE SERVED AT HARD LABOR AND AFFIRMED AS AMENDED. REMANDED FOR CORRECTION OF THE COMMITMENT ORDER, IF NECESSARY, AND FOR TRANSMISSION OF THE AMENDED RECORD TO THE DEPARTMENT OF CORRECTIONS. HOLDRIDGE, J., CONCURS.
I respectfully concur. I believe the trial judge erred in determining beforehand that an hour and fifteen minutes was a sufficient amount of time for the accused to conduct voir dire. An accused has a constitutional right to "full voir dire examination of prospective jurors and to challenge jurors peremptorily." La. Const. Art. I, sec. 17A. See also La. C.Cr.P. art. 786. Imposing an arbitrary time limit on a defendant's voir dire examination has been found to be error in that it is clearly improper and to be avoided by trial courts. See State v. Jones, 596 So.2d 1360, 1367 (La. App. 1 Cir), writ denied, 598 So.2d 373 (La. 1992). The proper procedure would be for the trial judge to be vigilant and to terminate voir dire after the accused had an opportunity for a full voir dire examination and not to establish any arbitrary time limits prior to the voir dire examination. However, in this case, I find that the defendant failed to show that he was prejudiced by the imposition of the time limits. State v. McGhee, 2014-1359 (La. App. 1 Cir. 3/6/2015) 2015 WL 996370 (unpublished).