State Of Louisiana v. Oderra Benitez Holmes

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

DOCKET NUMBER
2022 KA 0328

STATE OF LOUISIANA

VERSUS

ODERRA BENITEZ HOLMES

Judgment Rendered:
OCT o 6 2023

ON APPEAL FROM THE
19TH JUDICIAL DISTRICT COURT
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 09- 14- 0171

HONORABLE WILLIAM JORDEN, JUDGE PRESIDING

Bruce G. Whittaker Attorney for Appellant
Louisiana Appellate Project O' Derra Benitez Holmes
New Orleans, Louisiana

O' Derra Holmes Pro Se
Angola, Louisiana

Hillar C. Moore, III Attorneys for Appellee
District Attorney State of Louisiana
and

Cristopher I.M. Caster
Assistant District Attorney
Baton Rouge, Louisiana

BEFORE: McCLENDON, HOLDRIDGE, and GREENE JJ.

GREENE, ].

A grand jury indicted the defendant, O' Derra Benitez Holmes, with aggravated

rape,' a violation of La. R. S. 14: 42. He pled not guilty. After a trial, the jury found the

defendant guilty as charged. The trial court sentenced him to life imprisonment at hard

labor, without the benefit of probation, parole, or suspension of sentence. The

defendant now appeals, assigning error to the trial court's denial of his challenges for
cause of two prospective jurors. After review, we affirm the conviction and sentence.

FACTS

On the evening of May 6, 2014, J. W. entered the bedroom of the house she

shared with defendant and witnessed him engaging in oral sex with her six -year -ofd

daughter, M. W., the victim in this case. z At that time, the defendant and I.W. were in a

romantic relationship and lived together with their one -year-old child and J. W.' s other

children ( a two-year- old child and M. W.) in a one -bedroom house in East Baton Rouge

Parish. At trial, J. W. testified that, on the night of the incident, the defendant told her

to go to the store to buy some juice. Though the defendant specifically instructed her

to go to a more distant store, ]. W. went to a store located closer to the house. J. W.

returned 10 minutes later, entered the house through its side door, saw her one and

two-year-old children sitting on the couch in the living room, and went to the bedroom.

When she opened the bedroom door, she saw the defendant laying on the bed against

the headboard, and M. W. on her knees on the bed, with her " head on [ the defendant's]

penis." She then left the house with her children and asked a neighbor to call 911.

The police thereafter arrested the defendant.

M. W., who was nine years old at the time of the trial, testified that, just prior to

the incident, her mother told her she was leaving to go to the store and would be right

back. As she and her younger sisters were on the couch playing and watching TV, the

defendant told her to come into the bedroom, and she complied. He told the other

1 The instant offense occurred in 2014. Subsequently, by 2015 La. Acts Nos. 184, § 1 and 256, § 1, the
legislature redesignated the offense of aggravated rape as first degree rape. See La. R. S. 14: 42( E).

I Herein, we will refer to the victim and her mother by their initials only. See La. R. S. 46: 1844( W).
State v. Mangrum, 20- 0243 ( La. App. 1 Cir. 2/ 22/ 21), 321 So. 3d 986, 989 n. 1, writ denied, 21- 00401 ( La.
10/ 1/ 21), 324 So. 3d 1050.

2

children to stay in the living room. She testified that after she entered the bedroom,

a] bad touch" occurred, specifically with her mouth on the defendant' s " private."

M. W. confirmed that her mother walked in the bedroom during the incident.

The defendant did not testify at trial, but the State played his recorded police

statement from the date of the incident for the jury. In that statement, the defendant

admitted that he was wearing only a t -shirt while lying in bed with M. W. but claimed

that her head was on his chest. The defendant indicated that J. W. planted the

accusation against him in M. W.' s head by entering the room and yelling, " you sucking

his thing?" He insisted that " nothing" happened.

ASSIGNMENTS OF ERROR

In counseled and pro se briefs, the defendant argues the trial court abused its

discretion in denying his challenges for cause as to two prospective jurors, resulting in

reversible error. He notes that he exhausted his peremptory challenges, including the

two that were used to dismiss the two prospective jurors at issue herein. The

defendant first argues the trial court should have dismissed prospective juror Dusty

Pourciau for cause when he revealed that he was the brother of Grant Pourciau, a

police officer identified by the State as a person who worked on this case and who

might be called to testify. The defendant concedes that Mr. Pourciau informed the

court that he could be impartial if selected as a juror. However, the defendant argues

the trial court failed to consider the fact that Mr. Pourciau " had a close relationship"

with his brother " and would quite naturally apply a great deal of credibility to his

testimony."

The defendant next argues the trial court should have dismissed prospective

juror Lacie Bonaventure for cause, as she indicated in an answer to a jury questionnaire

that " some bad stuff happened to [ her] and something bad happened to [ her] sister."

The defendant argues that the challenge for cause should have been granted " out of an

abundance of caution ... due to the prejudice that Ms. Bonaventure may show [ the

defendant] during deliberations ... [ and] to keep her from re -living her experiences[.]"

The defendant contends the instant case " may have been exactly what [ Ms.

Bonaventure] and her sister experienced as a young child[.]" The defendant also

3

argues that "[ gjiven the inherently shocking and sensational nature of the allegations in

this case," the search for impartial jurors would be enormously difficult under the

best of circumstances. Thus, the defendant contends the trial court should have been

on the alert for undisclosed bases of bias or partiality. The defendant claims that the

two prospective jurors articulated clear factual reasons from which bias may be

reasonably implied.

The State argues the trial court did not abuse its discretion in denying the

defendant' s challenges for cause. The State notes that the fact that Mr. Pourciau' s

brother was a law enforcement witness does not disqualify Mr. Pourciau from service.

The State argues there is no indication that Mr. Pourciau' s connection to the law

enforcement witness would prejudice him to the point that he could not serve as a fair

and impartial juror. As to Ms. Bonaventure, the State argues that the record does not

reveal facts that would establish that she could not be fair and impartial in this case.

LAW AND ANALYSIS

Louisiana Code of Criminal Procedure article 797 pertinently provides that the

State or the defendant may challenge a juror for cause because the 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 because a relationship, whether by blood,

marriage, employment, friendship, or enmity between a juror and the defendant, the

person injured by the offense, the district attorney, or defense counsel, is such that it is

reasonable to conclude that it would influence the juror in arriving at a verdict. La.

C. Cr. P. art. 797( 3). Significantly, as noted by the Louisiana Supreme Court, La. C. Cr. P.

art. 797( 3) does not list a prospective juror' s relationship to a witness among those

relationships where a similar influence is reasonably implied. 3 See State v. Baldwin, 388

So. 2d 664, 671 ( La. 1980); State v. Wideman, 218 La. 860, 51 So. 2d 96, 866 ( 1951)

similarly interpreting a predecessor article to La. C. Cr. P. art. 797( 3)). Rather, the party

challenging the prospective juror must demonstrate that the personal relationship

3
Presumably the legislature would have included a " witness" among those persons specifically listed in
La. C. Cr. P. art. 797( 3) had it deemed a relationship between a prospective juror and a witness as
presenting the same implied bias as the prospective juror's relationship with those persons that are
specifically listed in La. CUR art. 797( 3).

4

would influence the juror's verdict. State v. Allen, 95- 1754 ( La. 9/ 5/ 96), 682 So. 2d 7131

725; State v. McIntyre, 381 So. 2d 408, 410 ( La. 1980), cert. denied, 449 U. S. 871, 101

S. Ct. 209, 66 L. Ed. 2d 90 ( 1980). 4 If the juror's responses as a whole reveal facts that

reasonably imply bias, prejudice, or inability to render judgment according to law, a trial
court should grant a challenge for cause, even when a prospective juror declares his

ability to remain impartial. State v. Kang, 02- 2812 ( La. 10/ 21/ 03), 859 So. 2d 649, 652-

53. However, an appellate court affords broad discretion to a trial court's ruling on a

motion to strike jurors for cause because of the trial court's ability to get a first -person

impression of prospective jurors during voir dire. State v. Brown, 05- 1676 ( La. App. 1

Cir. 5/ 5/ 06), 935 So. 2d 211, 214, writ denied, 06- 1586 ( La. 1/ 8/ 07), 948 So. 2d 121.

A prospective juror's seemingly prejudicial response is not grounds for an

automatic challenge for cause, and a trial court'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. Kang, 859 So. 2d at 653. Prejudice is presumed when the trial

court erroneously denies a challenge for cause and the defendant has exhausted his

peremptory challenges. 5 This is because an erroneous ruling depriving an accused of a

peremptory challenge violates his substantial rights and constitutes reversible error. Id.

at 651- 52.

Prospective Juror Dusty Pourciau

During voir dire examination of the first panel of prospective jurors, the trial

court instructed the panel to inform the court if they knew anyone on the potential

witness list and began reading the list. Mr. Pourciau informed the court that potential

witness Grant Pourciau was his brother. When later asked if there was any reason why

4 Accord State v. Lee, 559 So. 2d 1310, 1317 ( La, 1990) ( finding uncle -nephew relationship between
prospective juror and arresting officer ( who testified at suppression hearing but not expected to testify at
resentencing hearing) did not warrant challenge for cause, absent evidence that the relationship
influenced the prospective juror's ability to make a decision). Also accord Taylor v. State, 243 Ga. 222,
224, 253 S. E. 2d 191, 194 ( Ga. 1979) ( finding mother -son relationship between prospective juror and
prosecution witness did not warrant challenge for cause, when mother indicated she could fairly consider
all of the evidence and render an impartial verdict by applying the trial court's charges even though her
son was a witness).

S In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant
shall have 12 peremptory challenges. La. C. Cr.P. art. 799. In this case, the defendant exhausted all 12
peremptory challenges.

5

he could not be fair and impartial, Mr. Pourciau stated, " No, sir. I feel like I can be

impartial." When questioned directly about his brother, Mr. Pourciau confirmed that he

did not talk to him about cases, adding, " Well, I talk to him about his job. He' s usually

very tight- lipped about his doings."

In subsequently challenging Mr. Pourciau for cause, defense counsel stated,

Although he testified that he believed he could be fair and impartial, his brother is a

witness that the State intends to call. It's not a mere social knowledge of a person.

They're brothers, and I believe that any risk of him sitting on the jury could be

detrimental to Mr. Holmes[.]" Defense counsel specified that his concern was regarding

the weight that Mr. Pourciau and other jurors might give to police testimony during

deliberation. In response, the State noted that Mr. Pourciau indicated and showed no

hesitancy in stating that he could be fair. In denying the challenge, the trial court

noted that defense counsel did not ask Mr. Pourciau follow- up questions regarding his

brother possibly testifying or what kind of weight he would give to such testimony. The

trial court concluded that, based on Mr. Pourclau' s answers, he indicated that he could

be fair and impartial. 6

A juror's association with law enforcement agencies or personnel will not alone

disqualify him from service. The fact that a prospective juror is related to a law

enforcement official is not grounds for automatic exclusion for cause. State v. Manning,

03- 1982 ( La. 10119104), 885 So. 2d 1044, 1078, cert, denied, 544 U. S. 967, 125 S. Ct.

1745, 161 L. Ed. 2d 612 ( 2005); State v. Hudson, 15- 0158 ( La. App. 1 Cir. 9/ 18/ 15),

2015 WL 5515100, * 11. The party challenging the juror must also show that the

relationship would influence the juror in arriving at a verdict. State v McIntyre, 381

So. 2d 408, 410 ( La. 1980), cert, denied, 449 U. S. 871, 101 S. Ct. 209, 66 L. Ed. 2d 90

1980). Even where a prospective juror's affiliations raise an issue regarding his ability

to be impartial, if, after voir dire examination, the trial court is satisfied that the

prospective juror can render an impartial verdict according to the law and evidence, it is

the trial court's duty to deny the challenge for cause. Manning, 885 So. 2d at 1078.

6 while defense counsel did not actually object to the trial court's ruling, we note that in ruling on the
challenge for cause, the trial court stated, " so I overrule that objection." Defense counsel then stated,
Thank you, Your Honor."

0

In this case, the defense challenged Mr. Pourciau on his close blood relationship

to a potential law enforcement witness,' but, on voir dire examination, he affirmed he

could be fair and impartial. As pointed out by the trial court, defense counsel failed to

question Mr. Pourciau about his brother' s possible testimony or what weight he would

give such testimony. As the party challenging Mr. Pourciau, the defendant had the

burden of showing that Mr. Pourciau' s sibling relationship with a witness would

influence Mr. Pourciau' s verdict. See Allen, 682 So. 2d at 725; McIntyre, 381 So. 2d 410.

Without further record evidence affirmatively demonstrating how Mr. Pourciau' s sibling

relationship would have tainted his impartiality, the trial court did not abuse its great

discretion in rejecting the defendant' s challenge for cause of Mr. Pourciau. These

counseled and pro se assignments of error are meritless.

Prospective Juror Lacie Bonaventure

During voir dire examination of the second panel, Ms. Bonaventure was

questioned regarding her prior service on a jury for a murder trial in which the

defendant therein was found guilty. She stated that she could not remember when the

trial took place, adding " two - - five years ago." She confirmed that she had distant

family and relatives that had been in trouble with the law before. When asked if a " bad

experience" had by her and her sister would affect how she felt about sitting on the

jury, she stated, " I' m not a vengeful person." She confirmed that she could keep what

happened out of her head, adding, " It was a long time ago." Ms. Bonaventure further

confirmed that she could be fair and impartial. When the jurors were asked if they

could follow the law that reasonable doubt is not proof to an absolute certainty, Ms.

Bonaventure responded positively.

In challenging Ms. Bonaventure for cause, defense counsel argued, " She and her

sister were both victims of, I' m going to assume, a similar type of crime. It wasn' t clear

whether or not when - - when she was a child, you know, based on ... that experience,

we' re not sure that she can be fair and impartial." In response, the State in part noted

Ms. Bonaventure stated she could be fair and impartial on sidebar and during

questioning in open court. In denying the challenge, the trial court noted it asked Ms.

Mr. Pourciau' s brother did not testify at trial, which the defendant acknowledges.

7

Bonaventure about her bad experience and she stated without hesitation that it would

not affect her, adding it was a long time ago.

The fact that a juror may have painful memories associated with the subject of a

criminal trial is not listed as a basis for a challenge for cause under La. C. Cr. P. art. 797.

State v. Magee, 13- 1018 ( La. App. 5 Cir. 9/ 24/ 14), 150 So. 3d 446, 454, writ denied, 14-

2209 ( La. 10/ 2/ 15), 178 So. 3d 581. Further, a prospective juror's personal experience

as the victim of a crime will not necessarily preclude that prospective juror from serving

on a jury. State v. Dorsey, 10- 0216 ( La. 9/ 7/ 11), 74 So. 3d 603, 631, cert. denied, 566

U. S. 930, 132 S. Ct. 18591 182 L. Ed. 2d 658 ( 2012); State v. Lewis, 18- 0662 ( La. App. 4

Cir. 12/ 19/ 18), 262 So. 3d 302, 304-05 ( finding the trial court did not abuse its

discretion in denying challenges for cause of jurors who had been victims of sex crimes

but who both stated they could decide the case based on the law and evidence). A

prospective juror's relationship to a person who was the victim of a crime likewise does

not disqualify a prospective juror from serving. See State v. Nix, 327 So. 2d 301, 326

La. 1975), cert. denied, 425 U. S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 198 ( 1976) ( finding a

prospective juror's relationship to a murder victim, his brother- in- law, was insufficient to

establish cause for excusing that prospective juror).

The law does not require that a jury be composed of individuals who have not

personally been a crime victim or who do not have close friends or relatives who have

been crime victims. It requires that jurors be fair and unbiased. See State v. Juniors,

03- 2425 ( La. 6/ 29/ 05), 915 So. 2d 291, 306, cert. denied, 547 U. S. 1115, 126 S. Ct.

1940, 164 L. Ed. 2d 669 ( 2006). Therefore, the prospective juror's past experience as,

or relationship to, a victim of a crime similar to that for which the defendant is being

tried must be examined in conjunction with other evidence in the record of the voir dire

proceeding that bears on the prospective juror's ability to be fair and impartial and to

apply the law as instructed by the trial court. See Dorsey, 74 So. 3d at 631; Nix, 327

So. 2d at 326.

We have thoroughly reviewed the examination of each of the prospective jurors

at issue. We find that as to each potential juror, their responses as a whole indicated

their willingness and ability to be fair and unbiased and to render an impartial verdict

N

according to the law and evidence. Thus, we find the trial court did not abuse its

discretion in denying the defendant's challenges for cause at issue.$ These counseled

and pro se assignments of error are meritless.

CONVICTION AND SENTENCE AFFIRMED.

8 In addition to the responses noted above, in finding no abuse of discretion by the trial court, this court
reviewed and considered responses by Mr. Pourciau and Ms. Bonaventure to questions regarding several
hypothetical scenarios presented to the prospective jurors.

G7

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

DOCKET NUMBER

2022 KA 0328

STATE OF LOUISIANA

VERSUS

ODERRA BENITEZ HOLMES

McClendon, J., concurring.

Every person charged with a crime is entitled to an impartial trial, and a corollary

of this right is to have a jury free of bias. See U. S. Const. amend. VI; La. Const. art. I, §

16; Skilling v. United States, 561 U. S. 358, 377, 130 S.Ct. 2896, 2912- 13, 177 L. Ed. 2d

619 ( 2010); State v. Anderson, 2006- 2987 ( La. 9/ 9/ 08), 996 So. 2d 973, 995, cert.

denied, 556 U. S. 1165, 129 S. Ct. 1906, 173 L. Ed. 2d 1057 ( 2009). Thus, fairness and

impartiality are prerequisite qualifications in all jurors who are called upon to try an

accused in a criminal action. State v. Frazier, 209 La. 373, 377; 24 So. 2d 620, 621

1946). Further, it is long settled that the bias of a prospective juror may be actual or

implied; that is, it may be bias in fact or bias conclusively presumed as a matter of law.

United States v. Wood, 299 U. S. 123, 133, 57 S. Ct. 177, 179, 81 L. Ed. 78 ( 1936).

Louisiana Code of Criminal Procedure article 797( 3) expressly allows a prospective

juror to be challenged for cause on the basis that his relationship to the defendant, the

person injured, the district attorney, or defense counsel reasonably implies that the

prospective juror would be influenced in arriving at a verdict. However, as noted by the

Louisiana Supreme Court and recognized in this opinion, LSA- C. Cr. P. art. 797( 3) does not

list a prospective juror's relationship to a witness among those relationships where a

similar influence is reasonably implied. See State v. Baldwin, 388 So. 2d 664, 671 ( La.

1980); State v. Wideman, 218 La. 860, 51 So. 2d 96, 866 ( 1951) ( similarly interpreting

a predecessor article to LSA- C. Cr. P. art. 797( 3)). Rather, the party challenging the

prospective juror must demonstrate that the personal relationship would influence the

juror's verdict. State v. Allen, 95- 1754 ( La. 9/ 5/ 96), 682 So. 2d 713, 725; State v.

McIntyre, 381 So. 2d 408, 410 ( La. 1980), cert. denied, 449 U. S. 871, 101 S. Ct. 209, 66

L. Ed. 2d 90 ( 19$ 0). In this matter, the scant record of the questioning of Mr. Pourciau

with regard to his relationship with his brother failed to establish that said relationship

would influence his verdict. Thus, based on the record before us, I cannot find that the

trial court abused its great discretion in denying the defendant's challenge for cause of

Mr. Pourciau.

Nevertheless, I write further to highlight the need for a per se rule of implied bias

where extremely close familial relationships exist between a witness and a juror, such as

a sibling relationship. Where a prospective juror is related to a state witness by blood or

marriage, special problems exist that render a trial court' s search for actual bias an

inadequate protection of a defendant's right to an impartial jury. One such problem is the

potential for unconscious bias. It is virtually impossible for a prospective juror to

consciously estimate how the family relationship with a witness will affect his or her

judgment. Although no intentional actual bias may exist, the risk of unconscious bias in

these situations is manifest. State v. Gesch, 167 Wis. 2d 660, 667, 482 N. W. 2d 99, 102

1992). In light of the high risk of unconscious bias in such situations, it would be prudent

for the legislature to address this issue.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

DOCKET NUMBER

2022 KA 0328

STATE OF LOUISIANA

VERSUS

ODERRA BENITEZ HOLMES

HOLDRIDGE, J., concurring.

I respectfully concur. Unlike many errors in criminal trials that this court

finds to be harmless, ( see State v. Armentor, 2019- 1267 ( La. App. I Cir. 7131120),

309 So. 3d 762, 769, writ denied, 2020- 01032 ( La. 2117121), 310 So. 3d 1149), an

erroneous ruling of a trial court on a challenge for cause deprives the defendant of

one of his peremptory challenges and constitutes a substantial violation of his

constitutional and statutory rights requiring reversal of the conviction and sentence.

State v. Dotson, 2016- 0473 ( La. 10/ 18117), 234 So. 3d 34, 38. After the United States

Supreme Court case Ramos v. Louisiana, 590 U.S. _, 140 S. Ct. 1390, 1397, 206

L.Ed.2d 583 ( 2020) and the amendment of La. C. Cr.P. art. 782, a unanimous jury is

required in Louisiana to convict a defendant. Therefore, the denial of a peremptory

challenge to a criminal defendant has attained greater importance.

In this case, an African- American male was on trial for aggravated rape of a

six- year old. The trial judge read to the prospective jurors a list of the state' s

witnesses. One of the white -male jurors informed the trial court that one of the

witnesses on the state' s list was his brother. The defendant challenged the

prospective juror for cause. The trial court denied the cause challenge. The

defendant then used a peremptory challenge to remove the juror and also used all of

his peremptory challenges in the selection process. After the defendant' s conviction,

the defendant appealed the denial of his cause challenge by the trial court.

Louisiana Code of Criminal Procedure article 797 states that "[ t] he 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." Every person charged with a crime

is entitled to an impartial trial. La. Const. art. I, § 16. A corollary of this right is to

have a jury free from bias. Fairness and impartiality are prerequisite qualifications

in all jurors who are called upon to try an accused in a criminal action. State v.

Frazier, 209 La. 373, 377; 24 So. 2d 620, 621 ( 1946). The Sixth Amendment

prescribes no specific tests in requiring that in all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury. The bias of a

prospective juror may be actual or implied; that is, it may be bias in fact or bias

conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123,

133; 57 S. Ct. 177, 179; 81 L.Ed. 78 ( 1936). A prospective juror' s statement that he

will be fair and impartial is not binding on the trial court. If the examination

discloses facts from which bias or prejudice may be reasonably inferred, the juror

may be excused for cause. State v. Lewis, 391 So. 2d 1156, 1158 ( La. 1980); State

v. Monroe, 366 So. 2d 1345, 1346- 47 ( La. 1978), cert. denied 463 U.S. 1229, 103

S. Ct. 3571, 77 L.Ed.2d 1411 ( 1983).

When the defendant uses all twelve of his peremptory challenges, an

erroneous ruling by the trial court that results in depriving the defendant of a

peremptory challenge constitutes a substantial violation of a defendant' s

constitutional and statutory rights requiring the reversal of the conviction and

sentence. Dotson, 234 So. 3d at 34. In this case, this court is called upon to decide

whether a juror who is the brother of a witness for the state is bias so as to require

the trial court to grant a cause challenge.' To decide this issue, some states have

adopted a per se rule on the basis of implied bias in regard to jurors who are closely

related to witnesses. See Ex parte Tucker, 454 So. 2d 552, 553 ( Ala. 1984) ( the trial

court committed reversible error by denying defendant' s challenge for cause where

it was discovered that the potential juror was the brother of a state witness) see also

State v. Gesch, 167 Wis.2d 660, 662, 482 N.W.2d 99, 101- 103 ( 1992) ( the

Wisconsin Supreme Court agreed that a prospective juror whose brother was the

State of Wisconsin' s only police witness should have been removed for cause).

I agree. In an era where the judicial system must ensure that all trials are

conducted fairly and that all of the constitutional rights of all defendants are

protected, the right to a fair and unbiased jury is paramount in all criminal

proceedings. To this end, I would hold that there are situations in the jury selection

process in which the relationship between a prospective juror and a trial witness is

so close that a finding of implied bias or partiality is mandated. The relationship

between brothers is one of those relationships. In such cases, the defendant is denied

due process of law where circumstances affecting the impartiality of a juror exists,

that would offer a possible temptation to the average man to forget the burden of

proof required to convict the defendant, or that might lead him not to hold the

balance nice, clean, and true between the state and the accused. See Gesch, 167

Wis.2d 662; Ex parte Tucker, 454 So. 2d 553. The " average person" standard does

not require proof that the particular potential juror was biased. It is a unique

individual that could remain unaffected by the testimony of a relative by blood to

the third degree, one way or the other. In some circumstances, such as here, when a

sibling of a person listed on the state or the defendant' s witness list is called as a

prospective juror, the mere probability of bias is so high that in order to assure a

1 Even though the prospective juror was stricken by a peremptory challenge, a deprivation of one
of the defendant' s peremptory challenges is a substantial violation of his constitutional rights. See
Dotson, 234 So. 3d at 38.

defendant the fundamental fairness to which the defendant is entitled, we must imply

bias and exclude the juror as a matter of law. To do otherwise would bring into

doubt the findings of the jury system in this state.

To leave the decision as to whether a brother of a witness should sit on the

jury up to the vast discretion of the trial judge is to invite the criticism of the judiciary

that fairness and equality is not evenly extended to all parties in our criminal system.

Our court should strive to maintain fairness in the criminal jury system of Louisiana.

Under the facts of this case, where the trial court denied an African- American

defendant' s cause challenge of a white juror who is the sibling of a potential state

witness and where the defendant was forced to use all of his peremptory challenges,

I would find that the trial court committed reversible error. However, I am

constrained to follow the Louisiana Supreme Court case State v. Wideman, 218 La.

860, 8671 51 So. 2d 96, 98 ( 1951), wherein a prospective juror' s brother, who was a

deputy sheriff, was a witness for the state. The Supreme Court held that " we must

accept as true the statement of the trial judge in his per curiam to this bill that [ the

prospective juror] was not only known to him personally and was a man of high

reputation in the community, but that he examined th[ e] juror at length and was

satisfied he was unbiased and able to render a fair and impartial trial." The Supreme

Court' s ruling does not consider the implied bias and partiality between the brothers,

but instead the decision is partially based upon the trial judge' s personal opinion of

the prospective juror. Because the criminal justice system is now more aware of past

practices and more concerned that trials are to be conducted fairly and impartiality

as to all, I find that the Wideman holding may lead to inequalities in the

administration ofjustice, and it is questionable as to whether it must be followed by

this court. See Ramos, 140 S. Ct. at 1397. Accordingly, I respectfully concur.