Opinion
NO. 2014 KA 1637
04-24-2015
STATE OF LOUISIANA v. SHONERAY O. O'HAVER
Holli Herrle-Castillo Louisiana Appellate Project Marrero, Louisiana Counsel for Defendant/Appellant Shoneray O. O'Haver Walter P. Reed District Attorney Covington, Louisiana Jay Adair Assistant District Attorney Franklinton, Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana
Case No. 123388
The Honorable Scott Gardner, Judge Presiding Holli Herrle-Castillo
Louisiana Appellate Project
Marrero, Louisiana
Counsel for Defendant/Appellant
Shoneray O. O'Haver
Walter P. Reed
District Attorney
Covington, Louisiana
Jay Adair
Assistant District Attorney
Franklinton, Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. THERIOT, J.
The defendant, Shoneray O. O'Haver, was charged by bill of information on count one with armed robbery, a violation of La. R.S. 14:64, on count two with use of firearm in the commission of a armed robbery, a violation of La. R.S. 14:64.3; and on count three with being a convicted felon in possession of a firearm, in violation of La. R.S. 14:95.1. The defendant pled not guilty on all counts. After a trial by jury, the defendant was found guilty as charged on all counts. The defendant was sentenced to seventy years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two to run consecutive to count one; and twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count three to run concurrent with counts one and two. The trial court denied the defendant's motion to reconsider sentence and motion for post-verdict judgment of acquittal. The defendant now appeals, assigning error to the trial court's denial of challenges for cause to strike potential jurors, to the trial court's denial of a motion to excuse a juror, and to the constitutionality of the sentence imposed on count one. For the following reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS
On July 23, 2013, at approximately 2:40 p.m., a masked male entered Resource Bank, located at 402 Avenue B in Bogalusa. Jenny Smith, the head bank teller, observed the individual enter the bank just as she was about to place verified (strapped, stamped, and initialed) money into the bank vault. According to Smith, the assailant was wearing a dark sweat shirt, old, dirty, white-washed jeans, along with a dark, loose-fitting face mask. Smith immediately stopped and displayed her hands. While Smith was unable to see the assailant's face, she assumed he was a white male based on his visible eyelids, attire, silhouette, and the tone of his voice. Erica Parker, another teller present at the time, was counting money when the buzzer sounded as the assailant entered the bank. Parker was able to observe the assailant from the waist up as he demanded money. Parker believed that he was about five feet and nine inches tall, and that he was a white male based on the appearance of the skin that could be viewed in the large eye holes in the face mask. Parker further noted that he was brandishing an automatic gun with silver on it and holding a black drawstring bag. The masked individual withdrew the gun as he approached Smith, pointed the gun towards her, and instructed her to put "it" in the black drawstring bag. Smith fumbled and dropped the keys to her cash drawer as she attempted to comply with the demand. After remembering that she still had access to the verified cash that she was about to place into the vault when she first spotted the assailant, Smith placed the cash in the assailant's bag, and he headed south after exiting the bank. Smith immediately set off the alarm, began yelling that the bank had been robbed, locked the bank doors, and instructed customer service representative Bridget Owens to call the police.
Captain Charles Helton of the Bogalusa Police Department arrived at the scene of the robbery in less than three minutes. He immediately headed south on Avenue B. Captain Helton turned east in an alley behind Avenue B and when he arrived at the 600 block, someone fitting the description of the assailant (later identified as the defendant) was exiting a wooded area behind an old building on foot. Specifically, Captain Helton noted that the defendant, who was unmasked at the time, was wearing a gray t-shirt, faded jeans, slippers, and carrying a back pack. Captain Helton exited his unit, placed his hand on his weapon, and asked the defendant to step over to his unit. The defendant complied and when he threw his back pack on the trunk of the unit, it made a loud thud, causing the officer to suspect that a gun was in the bag. As Captain Helton was about to frisk him, the defendant began running westbound across Avenue B with the bag. Captain Helton gave chase but lost his clear view of the defendant as the defendant ran behind houses. Other officers assisted Captain Helton in the manhunt by setting up a perimeter and using canines. The officers began searching the houses within the perimeter.
After the perimeter was disbanded, some of the officers remained in the area and continued searching empty residences in the vicinity. Around 6:22 p.m., the defendant was found lying in a bathtub in a vacant home located at 623 Avenue B, across the street from where he fled from Captain Helton. The defendant was forcefully removed from the bathtub, apprehended, and transported to the Bogalusa Police Department where he gave a full recorded confession after executing a waiver of rights form. The back pack (found on the roof of the home after the defendant informed the police that the gun was located on the roof) contained a Smith and Wesson semiautomatic .40 caliber gun, a magazine with bullets, a handmade mask, sunglasses, and three thousand dollars cash consisting of some loose bills, and some banded with "Resource Bank" labeling.
The defendant's vehicle, registered in the names of the defendant and an assumed relative, was also discovered in the alleyway behind the vacant residence.
The defendant sustained a nose laceration during the arrest (presumed by the police to have occurred when he was placed face down to be handcuffed) that was treated at the police department. The trial court's denial of his pretrial motion to suppress is not being challenged on appeal.
ASSIGNMENT OF ERROR NUMBER ONE
In the first assignment of error, the defendant argues that Stephen Walters, Sharon Schmidt, and Tanula Ratliff Owens, three members of the first jury panel, provided answers that indicated they could not be fair in this case. The defendant specifically contends that Walters unfairly profiled him based on his looks, and that Walters' answers as a whole revealed a bias against the defendant that implied an inability to follow the law. The defendant notes that Schmidt described a Jefferson Parish case wherein her sister-in-law was murdered by her brother-in-law and indicated that her brother-in-law lied at the trial. The defendant further notes that while Schmidt stated that she would try to be fair, she repeatedly referred back to the case involving the murder of her sister-in-law and admitted that she was unsure if she would be able to separate the credibility issues in that case from the instant case. The defendant notes that Owens focused on what she deemed as a "smirk" on the defendant's face and argues that she clearly had a problem with him. The defendant argues that while Owens gave the right responses regarding her ability to be fair, her answers throughout the voir dire showed a bias toward him. The defendant concludes that the trial court erred in denying challenges for cause to strike Walters, Schmidt, and Owens. The defendant notes that he exhausted his peremptory challenges in this case and that his objection to the trial court's rulings are properly before this Court.
Louisiana Code of Criminal Procedure article 797 provides, in pertinent part, that "the state or the defendant may challenge a juror for cause on the ground that ... [t]he juror is not impartial, whatever the cause of his partiality." La. C.Cr.P. art. 797(2). Further, a defendant may challenge a juror for cause on the grounds that the juror will not accept the law as given to him by the court. La. C.Cr.P. art. 797(4). 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, Martin, 558 So.2d 654, 658 (La. App. 1st Cir.), writ denied, 564 So.2d 318 (La. 1990). However, a trial court's ruling on a motion to strike jurors for cause is afforded broad discretion because of the court's ability to get a first-person impression of prospective jurors during voir dire. State v. Brown, 2005-1676, p. 5 (La. App. 1st Cir. 5/5/06), 935 So.2d 211, 214, writ denied, 2006-1586 (La. 1/8/07), 948 So.2d 121.
Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Rang, 2002-2812, p. 3 (La. 10/21/03), 859 So.2d 649, 651. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. Kang, 859 So.2d at 652. To prove there has been an error warranting reversal of a conviction, a defendant need only show: (1) the trial court's erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. See Kang, 859 So.2d at 652. Since the defendant in this case exhausted all twelve of his peremptory challenges, we need only consider the issue of whether the trial judge erroneously denied the defendant's challenges for cause contested herein. See La. C.Cr.P. art. 799.
The rule is different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).
As noted by the defendant, when the State asked the prospective jurors during voir dire examination how they would vote before hearing any evidence, prospective juror Stephen Walters stated, "I saw when he come in, he had a little smirk on his face. So probably guilty." Walters also stated that it did not matter that he had not heard any evidence, though he stated that he would listen to the evidence. In that regard he added, "I guess so. But in my head, I could see him doing it. Not to be funny or anything." Prospective juror Tanula Ratliff Owens also commented on the perceived smirk on the defendant's face, specifically stating, "Well, because I teach. I mean, the smirk on his face, from my background, I guess that's, because I teach. And you know, that little smirk. That's what teachers do. We look at your facial expression. We read body language." The State indicated that they were not in a classroom and reiterated that the State had the burden of proof. Owens agreed and positively indicated that he would vote not guilty at that point, as he had not heard any evidence.
When the jurors were questioned as to the potential influence from other unrelated cases, as the defendant notes, prospective juror Sharon Schmidt stated, "My sister-in-law was killed, murdered by her husband. And ~ in Kenner." She further stated, "So, I don't know. I would try and be fair. I think that would come back in my head. It was awful." Shmidt confirmed that she felt justice was served in that case, noting that her sister-in-law's husband was in jail. She later added that he initially lied, but the victim's daughter witnessed the murder and testified. Shmidt reiterated that she would try to be fair and impartial stating, "I'll try, yes. I guess." When she reiterated that her niece had to testify after the defendant lied in that case, she was questioned further as to her ability to independently evaluate the credibility of the witnesses in this case with an open mind and consider the defendant not guilty before hearing evidence. Shmidt stated, "I don't know if I'm the best judge of saying people are lying or whatever. That's the only thing I have a problem with. I don't know if people are telling the truth. He lied." When asked if she would continue to revisit that case, she added in part, "If the attorneys do what they are supposed to do, I guess I could be fair. But, you know, for justice, you know. Make sure everything is out in the open." She stated that she was positive that she would not hold it against the defendant if he did not testify. While she was uncertain as to whether she would be able to separate the cases in judging credibility, Shmidt stated that she would try to do so.
After the responses noted above, the prospective jurors indicated that they would fairly evaluate the testimony presented during the trial. When the defense attorney specifically questioned Walters about his previous response regarding the defendant's facial expression, he admitted that he was initially profiling the defendant based on his looks, but confirmed that he would not do so during deliberations. Walters added in part, "He's innocent until proven guilty." The other prospective jurors agreed. The defense attorney subsequently questioned Owens about facial expressions and agreed that someone could have a smile on his face for a reason that was not negative. Owens noted, however, that there was a difference between a smirk and a smile. Without stated reasons, the trial court denied the defense's challenge of the three prospective jurors noted above. Prior to the initial denial, the State noted that it went through a pretty lengthy examination of each individual juror, clarifying the standard of proof and that it was the State's burden to present evidence.
As indicated above, a trial court's ruling on whether to seat or reject a juror for cause will not be disturbed unless a review of the voir dire as a whole indicates an abuse of the great discretion accorded to the trial court. Martin, 558 So.2d at 658. Thus, only where it appears that the judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will the ruling of the trial judge be reversed. See State v. Lee, 93-2810 (La. 5/23/94), 637 So.2d 102, 108. In accordance with La. C.Cr.P. art. 797(2), an opinion or impression as to the guilt or innocence of the defendant shall not of itself be a 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. Accordingly, if a prospective juror is able, after examination by counsel, to declare to the court's reasonable satisfaction that he is able to render an impartial verdict according to the law and evidence, it is the trial court's duty to deny a challenge for cause. See State v. Claiborne, 397 So.2d 486, 489 (La. 1981). Herein, despite any initial impressions as to guilt or innocence, the prospective jurors in question indicated that they would try to be fair and impartial, consider the defendant not guilty before hearing evidence, and require the State to maintain the burden of proof. We find that the totality of the responses by the jurors in question reasonably demonstrated their willingness to decide the case impartially, according to the law and the evidence, and as a whole, did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. Thus, after a review of the record of voir dire as a whole, we find that the trial court did not abuse its broad discretion in denying the defendant's challenges for cause as to the prospective jurors in question. Assignment of error number one is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant contends that the trial court erred in denying his repeated motions to excuse from the jury Kimberly Thomas, who revealed on the first day of the trial that she was the aunt, by blood, of Erica Parker. Although Thomas indicated that the relationship would have no effect on her deliberations, the defendant argues that her answers during voir dire suggest otherwise. The defendant specifically notes that Thomas agreed when another prospective juror stated that armed robbery was serious and life threatening, and individually added that it would be a violation of her personal space. While the defendant concedes that Thomas's responses did not rise to the level of a challenge for cause, considering the responses in hindsight, the defendant claims that he would have challenged Thomas for cause had he known of the relationship. The defendant contends that the trial court should have replaced Thomas with one of the alternate jurors, and that the conviction should now be set aside.
A juror cannot be challenged for cause by the State or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. La. C.Cr.P. art. 795(A). If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course. La. C.Cr.P. art. 796. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or are disqualified from performing their duties. La. C.Cr.P. art. 789(A). Louisiana Code of Criminal Procedure article 797(3) allows for a juror to be challenged for cause if a juror's relationship with the victim would influence the juror's verdict. A trial judge is granted 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. Jones, 474 So.2d 919, 926 (La. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney, and the witnesses who may testify at trial. Rather, the law requires that jurors be fair and unbiased. State v. Stewart, 2008-1265, p. 19 (La. App. 5th Cir. 5/26/09), 15 So.3d 276, 288, writ denied, 2009-1407 (La. 3/5/10), 28 So.3d 1003. Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Holland, 544 So.2d 461, 465 (La. App. 2d Cir. 1989), writ denied, 567 So.2d 93 (La. 1990). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. See State v. Hodgeson, 305 So.2d 421, 424 (La. 1974).
At the conclusion of Parker's testimony, juror Kimberly Thomas revealed to the court that Parker was her niece. She stated that during voir dire she was unaware of the fact that she was related to one of the witnesses and further stated that it would not affect her. When questioned by the trial court, Thomas further stated that she had not spoken to or seen her niece in over a year and just wanted to honestly disclose the familial relationship. She later added, "We are just not real close. I don't see her. She has her own family. And she lives here. And I just don't see her." She did not recognize her niece's name when it was called during voir dire as a potential witness and only realized that Parker was involved when she entered the courtroom during the trial. She reiterated that Parker's affiliation would not cause her any problems in deciding the case, and when asked if she could guarantee a fair trial on behalf of the State and the defendant, she stated, "Definitely."
In Holland, a juror sent a letter to the trial judge during the trial to inform him that he had just learned he was possibly related to the victim. The juror stated that, even if he was related to the victim, it would not affect him or the process of his decision making, and he could be fair and impartial. The defendant challenged the juror for cause. The trial judge denied the challenge and stated that there was nothing to make him conclude that any possible relationship would influence the juror in arriving at a verdict. The defendant objected to the ruling. On appeal, the Second Circuit ruled that it could not find that the trial judge erred in concluding that the possible relationship, of which the juror was unaware during voir dire, would not prejudice the defendant or prevent a fair trial. As such, the Second Circuit found no abuse of the trial judge's discretion in denying the challenge for cause. Holland, 544 So.2d at 465-66.
In this case, we similarly conclude that the trial court did not abuse its discretion in refusing to remove Thomas. As the trial court noted in denying the defendant's motion, Thomas's responses indicated that she was open and clear-minded and would consider and vote based on the evidence. Thomas convincingly assured the trial court that the relationship would not affect her verdict and that she could be fair and impartial. There was nothing in Thomas's voir dire responses to refute this assertion. Considering the foregoing, we find no merit in the second assignment of error.
ASSIGNMENT OF ERROR NUMBER THREE
In the final assignment of error, the defendant contends that the seventy-year sentence imposed on count one is out of proportion with the offense in this case. The defendant first notes that in imposing the sentence on count one, the trial court considered the fact that a firearm was used although this factor was already the basis for the enhancement provision of La. R.S. 14:64.3 charged on count two. The defendant further argues that the sentence amounts to a life sentence that is not supported by the record. The defendant notes that the trial court did not consider several mitigating factors, including his homelessness at the time of the offenses, and that no one was physically harmed. The defendant further argues that his criminal history, including the underlying offense of simple burglary on count three, does not justify the sentence of seventy years.
Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868, pp. 10-11 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). As noted, the defendant is challenging the sentence of seventy years at hard labor, without benefit of probation, parole, or suspension of sentence, imposed on count one in this case.
Jenny Smith testified at the trial that the robbery made her "jumpy" while in public, that she had problems talking about the incident, and further described the incident as follows, "a huge inconvenience on my life." Parker similarly testified that the incident caused her a lot of anxiety about making public appearances and still felt affected at the time of the trial (nearly one year after the offenses) due to her loss of a sense of security. She further testified that the incident occurred during her third month at the bank and that it was part of the reason why she quit the job, as she did not feel safe after the incident. In imposing the sentence, the trial court noted that the gun was fully loaded with one bullet in the chamber when recovered by the police, and that any lapse in the defendant's judgment could have resulted in the death of Smith.
A thorough review of the record reveals the trial court did not manifestly abuse its discretion in imposing sentence. We find that the trial court adequately considered the facts of the case. While even unworkable or unloaded guns can constitute dangerous weapons in some cases, in this case, the State presented evidence that indicated that the defendant held a loaded gun on Smith, increasing the dangerousness and inherent threat of death or great bodily harm. See State v. Gould, 395 So.2d 647, 655-56 (La. 1980) (on rehearing). The record supports the sentence imposed herein. The sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. The third assignment of error is without merit.
We further note that the facts that the gun was loaded with a bullet in the chamber when found by the police and pointed upwards toward one of the victims during the offenses are not necessary elements of the enhancement provision of count two, and were properly considered in imposing the sentence on count one.
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REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to La. C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C.Cr.P. art. 920(2). In imposing the sentence on the count three conviction of possession of a firearm by a convicted felon, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See La. R .S. 14:95.1(B). Although the failure to impose the fine is error under La. C.Cr.P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the State either in the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence imposed on count three. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
CONVICTIONS AND SENTENCES AFFIRMED.