State of Louisiana v. Raymond J. Jackson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-428

STATE OF LOUISIANA

VERSUS

RAYMOND J. JACKSON

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03-K-4552-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Sr.*,
Judges.

AFFIRMED.

James Edward Beal
Louisiana Appellate Project
P. O. Box 307
Jonesboro, LA 71251-0307
(318) 259-2391
Counsel for Defendant:
Raymond J. Jackson

*
Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Earl B. Taylor
District Attorney
Jennifer Ardoin
Assistant District Attorney
27th Judicial District Court
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-3041
Counsels for Appellee:
State of Louisiana

SAUNDERS, Judge.

The Defendant, Raymond J. Jackson, was charged by bill of information filed

on January 8, 2004, with possession of more than twenty-eight grams but less than

two hundred grams of cocaine, a violation of La.R.S. 40:967. The Defendant entered

a written plea of not guilty on January 9, 2004. Trial by jury commenced on October

17, 2005, and the trial court subsequently declared a mistrial.

On February 1, 2006, the State filed an amended bill of information charging

the Defendant with possession with intent to distribute cocaine, a violation of La.R.S.

40:967. Trial by jury commenced on February 16, 2006, and the jury returned a

verdict of guilty on the same date. On May 12, 2006, the Defendant was sentenced

to ten years at hard labor, with the first two years to be served without benefit of

probation, parole, or suspension of sentence. The Defendant filed a “Motion to

Amend and/or Reconsider Sentence” on May 18, 2006. On December 15, 2006, a

“Motion for Concurrent Sentences” was filed and denied.

A “Motion for Out of Time Appeal” was filed on February 21, 2007, and

denied on February 26, 2007. The Defendant then filed an “Intention to Seek

Appeal” on March 9, 2007. Therein, the Defendant sought to appeal the trial court’s

denial of his “Motion for Out of Time Appeal.”

On May 31, 2007, an appellate record was lodged with this court. On June 1,

2007, this court issued a rule to show cause why the appeal should not be dismissed,

as the judgment at issue was not appealable. The Defendant failed to submit a

sufficient response. Therefore, on August 1, 2007, this court issued an opinion

dismissing the Defendant’s appeal. However, the Defendant was given thirty days

to file a proper application for supervisory writs. See State v. Jackson, an unpublished

opinion bearing docket numbers 07-677 and 07-634 (La.App. 3 Cir. 8/1/07).

The Defendant filed a writ application with this court on August 28, 2007.

Therein, he alleged the trial court erred in denying his “Motion for Out of Time

Appeal.” On October 31, 2007, this court found the Defendant had alleged facts that,

if proven, would entitle him to an out-of-time appeal and remanded the matter for an

evidentiary hearing. See State v. Jackson, an unpublished writ opinion bearing docket

number 07-1057 (La.App. 3 Cir. 10/31/07).

At a hearing held on February 8, 2008, the trial court denied the “Motion to

Amend and/or Reconsider Sentence” filed on May 18, 2006, and gave the Defendant

thirty days to file a motion for appeal. On March 3, 2008, the Defendant filed a

“Motion and Order For Appeal.”

The Defendant is now before this court asserting two assignments of error.

Therein, the Defendant contends the trial court erred in allowing peremptory

challenges by the State on the basis of race in violation of Batson v. Kentucky, 476

U.S. 79 (1986), and erred in refusing to grant peremptory challenges to the defense

as a result of a reverse Batson challenge by the State. We find that the issues

presented by the Defendant either lack merit or should not be considered.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

that there are no errors patent.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant contends the trial court erred in

allowing peremptory challenges by the State on the basis of race in violation of

Batson v. Kentucky 476 U.S. 79, 106 S.Ct. 1712 (1986). We do not agree.

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The fifth circuit recently discussed the state of the law regarding Batson

challenges in State v. Cheatteam, 07-272, pp. 4-5 (La.App. 5 Cir. 5/27/08), 986 So.2d

738, 743-44, as follows:

The Equal Protection Clause of the United States Constitution
prohibits purposeful discrimination on the basis of race in the exercise
of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme
Court established a three-step analysis to be applied when addressing a
claim that peremptory challenges of a prospective juror were based on
race. First, the trial court must determine whether the defendant has
made a prima facie showing that the prosecutor exercised a peremptory
challenge on the basis of race. Batson, 106 S.Ct. at 1723. Second, if the
showing is made, the burden shifts to the prosecutor to present a race-
neutral explanation for striking the juror in question. Batson, 106 S.Ct.
at 1723-24. This second step “does not demand an explanation that is
persuasive or even plausible,” as long as the reason is not inherently
discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct.
1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam). Third, the court must
then determine whether the defendant has established purposeful
discrimination. Batson, 106 S.Ct. at 1724. It is at this third step that
implausible explanations offered by the prosecution “may (and probably
will) be found to be pretexts for purposeful discrimination.” Purkett v.
Elem, 115 S.Ct. at 1771. “[A] trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly erroneous.”
Snyder v. Louisiana, ---U.S. ----, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175
(2008), citing Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct.
1859, 1871, 114 L.Ed.2d 395 (1991).

The Supreme Court later affirmed and applied the three-part test
in Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324, 162
L.Ed.2d 196 (2005), and, most recently, in Snyder v. Louisiana, supra.
In Miller-El, the Supreme Court emphasized the trial judge’s
responsibility to assess the plausibility of the prosecutor’s proffered
race-neutral reason “in light of all evidence with a bearing on it.”
Miller-El, 125 S.Ct. at 2331. The Supreme Court further stated:

A Batson challenge does not call for a mere exercise in
thinking up any rational basis. If the stated reason does not
hold up, its pretextual significance does not fade because
a trial judge, or an appeals court, can imagine a reason that
might not have been shown up as false.

Miller-El, 125 S.Ct. at 2332.

In its most recent case, Snyder v. Louisiana, supra, the Supreme

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Court again emphasized that the plausibility of the prosecutor’s
explanation for a peremptory strike is to be carefully scrutinized by the
trial judge under the third step of the Batson inquiry and noted that
implausible reasons will fail a Batson challenge. In discussing the third
step of the Batson inquiry in Snyder, the Supreme Court stressed the
trial judge’s pivotal role in determining the plausibility of the state’s
race-neutral explanation. The Supreme Court explained that the third
step requires the trial court to evaluate the prosecutor’s credibility by
assessing “not only whether the prosecutor’s demeanor belies a
discriminatory intent, but also whether the juror’s demeanor can credibly
be said to have exhibited the basis for the strike attributed to the juror by
the prosecutor.” Snyder v. Louisiana, ---U.S. ----, 128 S.Ct. 1203,
1208, 170 L.Ed.2d 175 (2008).

Referencing its earlier decision in Miller-El, the Supreme Court
again stressed that “all of the circumstances that bear upon the issue of
racial animosity must be consulted” in determining whether the
explanation given for the strike is convincingly race-neutral. Snyder v.
Louisiana, supra at 1208. When the record does not support the
prosecutor’s proffered explanation or shows the proffered explanation
to be implausible, there is an inference of discriminatory intent that
sufficiently demonstrates a Batson violation. Id. at 1212.

During jury selection in the case at bar, the State attempted to use peremptory

challenges to strike potential jurors Narcisse, Aaron, Amy, and Marks. Defense

counsel subsequently made a Batson challenge, and the State responded as follows:

Well, while we’re doing Batson, okay, let me just say that we
have, and this is what I have struck is, Ms. Narcisse is a black female,
Ms. Aaron is a black female, Mr. Jean Paul Amy is a white male, and
Mr. Marks is a black male. As to Ms. Narcisse, Ms. Narcisse says she
doesn’t like to judge and doesn’t want to judge. Ms. Aaron said she
didn’t understand the definition of “burden of proof beyond a reasonable
doubt.” Mr. Amy, he is twenty-three, single, and lives at home. My
feeling is that an unmarried male who lives -- who does not live alone,
has not learned the -- doesn’t have the sense of responsibility necessary
to serve on the jury. As to Mr. Marks, Mr. Marks says he could not
judge.

The State then proceeded to point out that potential juror Rubien was a black

female, and Chevis and Gray were black males. The trial court subsequently denied

the Batson challenge and excused the potential jurors at issue.

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“Once a prosecutor has offered a race-neutral explanation for the peremptory

challenges and the trial court has ruled on the ultimate question of intentional

discrimination, the preliminary issue of whether the defendant had made a prima facie

showing becomes moot.” State v. Coleman, 06-518, p. 4 (La. 11/2/07), 970 So.2d

511, 514 (quoting State v. Green, 94-887 (La.5/22/95), 655 So.2d 272). The trial

court asked the State to give reasons for its use of peremptory challenges. Thus, we

find that the issue of whether the Defendant presented a prima facie showing that the

State exercised a peremptory challenge on the basis of race is moot.

We will now address the State’s explanation for its challenges. “The neutral

explanation must be one which is clear, reasonably specific, legitimate, and related

to the particular case at bar.” State v. Collier, 553 So.2d 815, 820 (La.1989).

The Defendant asserts the State used peremptory challenges against jurors

Narcisse and Aaron primarily because they were black. The Defendant discusses the

State’s challenge to potential juror Marks, but does not argue that he was excluded

on the basis of race. Thus, we will not address the Defendant’s discussion of Marks’

answers to questions during voir dire.

The Defendant argues the reasons offered by the State for its use of peremptory

challenges were not borne out by the testimony of the potential jurors. The Defendant

asserts that when asked if we should be dealing with drugs in the courtroom, Narcisse

stated, “we should be dealing with that in the courtroom because it’s a controlled

substance and they should be prosecuted if they have it in their possession.” Narcisse

further stated that she would be willing to follow the law and give the Defendant a

fair trial. Narcisse subsequently stated she could judge, but she did not like to. The

Defendant asserts that Narcisse said she could find him guilty if the State proved its

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case, even knowing he would go to prison. However, the following pertinent

exchange appears in the record on the pages cited by the Defendant:

MR. DONALD RICHARD: Not at all. There’s a foot between our eyes.
Okay. So can I prove anything to you to an absolute certainty? The law
recognizes it and it says, I must prove the defendant guilty beyond a
reasonable doubt. I cannot prove him guilty to an absolutely [sic]
certainty. I cannot prove him guilty beyond any doubt or a shadow of
a doubt. Do you understand that, Ms. Narcisse?

PROSPECTIVE JUROR NO. 131, BEVERLY NARCISSE: Yes.

MR. DONALD RICHARD: Will you hold me to the burden of proof
which the law says I have to meet but no greater even though you know
that that young man will go to the penitentiary if he’s found guilty?

PROSPECTIVE JUROR NO. 131, BEVERLY NARCISSE: (NO
response.)

MR. DONALD RICHARD: You’ll have to walk into the courtroom and
you don’t have to look at him specifically, but he’s going to be here, you
understand that?

PROSPECTIVE JUROR NO. 131, BEVERLY NARCISSE: Yes.

MR. DONALD RICHARD: That’s harmful to you, isn’t it? I can see
the hurt in your eyes. You don’t like that idea, do you?

PROSPECTIVE JUROR NO. 131, BEVERLY NARCISSE: No.

The Defendant asserts it is clear that the primary reason for the State’s

exclusion of Narcisse was her race. The Defendant alleges that potential juror Debra

Lafleur, who was white, stated it would bother her to find the Defendant guilty, just

as Narcisse had, but she was not excused by the State.

The State notes that Narcisse did indicate she could find the Defendant guilty

even knowing he could go to prison. However, Narcisse answered in the negative

when asked if she liked the idea of sending the Defendant to prison. The State argues

that the exchange quoted above was a sufficient reason for excluding Narcisse as a

prospective juror. The State further points out that Lafleur was rehabilitated and

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Narcisse was not. The State notes that after Lafleur indicated it would bother her to

find the Defendant guilty, she stated she could do it.

The Defendant asserts that Aaron agreed that people should be prosecuted if

they have a controlled dangerous substance in their possession. Aaron later stated

that she would follow the law even if it did violence to her conscience. Aaron

answered yes when asked, “[t]he world doesn’t work unless somebody judges, does

it?” Aaron also indicated she could judge if asked to do so. The Defendant further

points out that Aaron said she would hold the State to its burden of proof and no

more, and she could find the Defendant guilty even though she knew he would go to

prison.

The State admits that Aaron did say she would hold the State to its burden of

proof. However, during subsequent voir dire by defense counsel, Aaron specifically

stated that she did not understand the meaning of the term burden of proof. The State

notes that defense counsel attempted to explain the meaning of burden of proof, but

Aaron was never again questioned regarding her understanding of the term after it

was explained by defense counsel.

Based on the transcript of voir dire, we find that the State’s reasons for the

challenges were plausible. Its reasons for excluding Narcisse were race-neutral, as she

stated she did not like to judge and did not like the idea of sending the Defendant to

prison. Further, the State’s reason for excluding Aaron was also race-neutral, as she

stated she did not understand the term burden of proof.

Accordingly, we find that the trial court did not err in denying the Defendant’s

Batson challenges. As such, the trial court’s ruling regarding the peremptory

challenges at issue are sustained by this court.

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ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, the Defendant contends the trial court erred

by refusing to grant peremptory challenges to the defense as a result of a reverse

Batson challenge by the State.

After defense counsel’s Batson challenge was denied, she moved to

peremptorily strike potential jurors Thomassie, Meche, Lafleur, and Ortego. At that

time, the State made a reverse Batson challenge. The State then noted that

Thomassie, Meche, and Ortego were the only three white males on the jury.

When asked to give reasons for the challenges, defense counsel stated the

following:

“They said they don’t believe in innocence as soon as you hit the door. They

don’t believe in innocence is what they said.” Defense counsel additionally stated

that the potential jurors at issue said that “when you’re in court, you’re guilty.”

The trial court and defense counsel discussed potential juror Thomassie as

follows:

MS. DUNN-MALBROUGH: Okay. He said he doesn’t believe in
innocence and he heard him say he doesn’t believe in innocence.

THE DEFENDANT: The Court heard him say it.

THE COURT: The Court heard him say that the presumption of
innocence prior to getting into court is a lot less --

MS. DUNN-MALBROUGH: Less, yes.

THE COURT: -- than when he gets into Court, that when he gets into
the Court, the presumption of innocence takes a lot more strength due
to the fact that they have to listen to everything before it’s determined
whether he’s guilty or innocent. That’s what Mr. Thomassie stated as
I recall.

MR. DONALD RICHARD: That’s what I recall, too.

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THE COURT: Is that what you recall?

MS. DUNN-MALBROUGH: Uh-huh (YES), but if he -- if he’s
uncomfortable with it thinking that he’s saying that but he’s meaning
that he’s going to be not really looking at innocence, I mean, that’s --

THE COURT: It still needs to --

MS. DUNN-MALBROUGH: But he articulated --

THE COURT: -- verbalize -- correct, his --

MS. DUNN-MALBROUGH: He articulated that he -- that from what
he said, he gathered that he does not -- he’s not going to put that
presumption of innocence too high on his agenda, and that’s the --

THE COURT: That’s not an acceptable response or excuse for excusing
Mr. Thomassie.

MS. DUNN-MALBROUGH: So we’re going to leave Mr. Thomassie.

THE COURT: Mr. Thomassie is going to be on the jury.

Defense counsel then stated that Meche said the same thing as Thomassie. The

trial court indicated it did not recall that. Defense counsel then stated that Meche had

previously been on a jury, and she did not want him to polarize the jury. The trial

court found that the reason given by defense counsel was not the same as the excuse

the Defendant had articulated to the court. The Defendant then stated Meche did not

believe a person could prove his innocence. The subsequent remarks resulted:

THE COURT: That’s correct.

MR. DONALD RICHARD: That’s right. He absolutely said that.

THE COURT: And I totally agree with him and I think your attorney
will totally agree with it. He cannot prove his innocence. It’s not him
to prove his innocence. You, as the defendant, are not required to prove
your innocence, that’s what he said. It’s the State to disprove or the State
to prove that you are guilty, not you to prove that you are innocent. Mr.
Meche will remain on the jury.

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Defense counsel again asserted that Meche indicated he had been on a jury that

resulted in a hung jury, and she did not want Meche to polarize the jury. The trial

court subsequently denied the reverse Batson challenge.

Although the trial court stated that it denied the reverse Batson challenge,

Meche did in fact serve on the jury. Thus, the trial court must have granted the

reverse Batson challenge and denied the Defendant’s peremptory challenge.

Defense counsel and the trial court then discussed Ortego as follows:

MS. DUNN-MALBROUGH: Mr. Ortego is a Veteran and that was my
hoping for him, he’s a Veteran. He -- he said that he could follow the
lead -- he would go, but he would follow the law which was not much
to that, but personally, I just --

THE COURT: How is that systematic with the other two?

MS. DUNN-MALBROUGH: They are not.

THE COURT: They’re not, but you had the -- the State has a Batson
challenge as to --

MS. DUNN-MALBROUGH: My reasoning --

THE COURT: -- that being systematic.

MS. DUNN-MALBROUGH: My reasoning for him was that he is a
Veteran and he’s probably really going to go along with whatever
anybody else says and he’s going to be probably more lenient to the
State than to the defense, and he’s -- goes to war for the State, I mean,
I just -- that was my reason for it. It didn’t have anything to do with him
being a white male, it had to do with him being a Veteran.

THE COURT: Okay. Mr. Richard, you had something?

The State then indicated that it was clear the Defendant did not want any white

males on the jury. The State further indicated that Ortego stated he was a veteran,

and, even if he disagreed with the law, he would follow it. Defense counsel then

stated the following: “Also, he said, and my client just reminded me, that he would

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probably go to war, you know, even if it was wrong, and in this case, no matter what

Don Richard or the State puts forwards, he’s probably going to go along with it.”

The trial court and the State then pointed out that several other potential jurors,

including Meche, Thomassie, and White, indicated they were veterans. The trial

court subsequently ruled that Ortego would remain on the jury.

In brief to this court, the Defendant argues that he offered the race-neutral

reason that Thomassie, Meche, and Ortego all had military backgrounds and were

willing to go to war, even if that was the wrong thing to do as the basis for their

exclusion from the jury venire. The Defendant asserts that he realized potential juror

White was a black male who had a military record and moved to strike him as well.

The Defendant asserts the trial court denied the challenges as to three white males

with military backgrounds, but allowed the challenge as to the black male, White,

with a military background.

As noted by the Defendant, during voir dire, Ortego was asked if he would go

“to this particular war” and stated the following:

The simple fact is that we have leaders that are giving us information of
why we should be there at a particular time and place. We have to rely
on our leaders. We might have our own judgment about it, but we still
have people that’s in charge of this country that we have to rely on,
that’s guidance. If called upon, I would go back again.

The Defendant asserts this statement showed a tendency to be easily swayed

and should have been a valid reason for a peremptory challenge.

The State asserts that Thomassie’s involvement in the military was not the

motivation for defense counsel’s attempt to exclude him from the jury. The State

further asserts that the trial court first noted the fact that Thomassie had served in the

military, and defense counsel never directly addressed Thomassie’s military status.

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Thus, the State argues it was clearly evident that defense counsel did not seek to

strike Thomassie on the basis of his military status. The State also asserts that it is

not evident in the record that defense counsel sought to challenge Meche based on his

involvement in the military.

The State agrees with the Defendant’s claim that Ortego was challenged due

to his military involvement. However, the State asserts that involvement in the

military does not indicate that one will go along with whatever someone else says.

The State then notes that after Ortego said he would go to war to fight even if he

thought it was the wrong thing to do, he stated he would follow the law in the

Defendant’s case even if he thought the law was horrible.

After reviewing the record, it is clear that the Defendant’s counsel did not

argue that Thomassie and Meche should have been excluded from the jury because

of their military service at the time she gave reasons for the exercise of the

peremptory challenges in the trial court. Thus, because the argument was not made

in the trial court, this court will not consider the Defendant’s claim that the trial

court’s ruling denying the use of peremptory challenges to exclude Thomassie and

Meche on the basis of military service was erroneous. However, the court will

address the Defendant’s claim that the trial court improperly denied the peremptory

challenge of Ortego.

First, this court must determine whether the State presented a prima facie

showing that the Defendant exercised a peremptory challenge on the basis of race.

We must then decide if the reasons given by the Defendant were race-neutral and, if

so, whether the State established purposeful discrimination.

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The trial court asked the Defendant to give reasons for its use of peremptory

challenges and he did so. Thus, like in Assignment of Error No.1, the issue of

whether the State presented a prima facie showing that the Defendant exercised a

peremptory challenge on the basis of race is moot. Coleman, 970 So.2d 511.

Accordingly, we will address the Defendant’s explanation for the challenge

against Ortego. The Defendant claims that Ortego’s military service was the basis for

the use of the peremptory challenge. While the Defendant’s attempt to excuse Ortego

based on his military service may have been a race-neutral reason, given that other

members of the jury venire, Thomassie and Meche, were not challenged on this basis,

it is not plausible. See Snyder, 128 S.Ct. 1203.

Accordingly, the trial court’s ruling regarding the peremptory challenge at issue

is sustained by this court, as it is not clearly erroneous. The trial court did not err in

granting the State’s reverse Batson challenge and finding the Defendant could not use

a peremptory challenge to exclude Ortego.

CONCLUSION:

The Defendant’s conviction is affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,

Courts of Appeal.

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