State of Louisiana v. Darian Spears

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-831

STATE OF LOUISIANA

VERSUS

DARIAN SPEARS

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 141,125
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Elizabeth A. Pickett,
Judges.

CONVICTION AND SENTENCE VACATED; CASE
REMANDED FOR FURTHER PROCEEDINGS.

Norris J. Greenhouse
Assistant District Attorney
Twelfth Judicial District Court
P. O. Box 1200
Marksville, LA 71351
(318) 253-6394
Counsel for Appellee:
State of Louisiana

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Darian Spears

DECUIR, Judge.

Defendant, Darian Spears, was charged with armed robbery, a violation of

La.R.S. 14:64. Defendant’s motion to suppress a statement he had given to police

was denied. A jury heard evidence and found Defendant guilty as charged. The court

denied Defendant’s motion for new trial and sentenced Defendant to ten years at hard

labor. The Defendant appeals his conviction and sentence arguing seven assignments

of error.

FACTS

It is alleged that on July 8, 2007, the Defendant pointed a handgun at Keith

Roy and took one-hundred and seventy dollars in cash from him during a dice game.

Local police quickly picked up Defendant and a friend of his and put each of them in

a separate unit. Police then had Roy approach each unit. An officer pointed out

Defendant’s friend first, but Roy informed the officer that person was not the robber.

The officer then pointed out Defendant, and the victim identified him as the

perpetrator.

DEFICIENT RECORD

In this assignment, Defendant argues the record is so deficient in some areas

that it deprives him of his right to appeal. He observes that many portions of the voir

dire transcript refer to individual venire members as “prospective juror” rather than

by name. Also, a number of the comments and statements made throughout the voir

dire are listed as “inaudible.” Further, the contents of various bench conferences are

not recorded. Defendant also complains that portions of the victim’s testimony and

portions of the transcription of his confession are listed as “inaudible.”

Further, he notes the record is unclear whether he used all of his peremptory

challenges during voir dire. The minutes indicate Defendant used only eleven of his

peremptory challenges. However, at the hearing on his motion for new trial, he stated

that he had used all of his peremptories, and neither the State nor the trial court

contradicted him. The voir dire transcripts (original and supplemental/amended) do

not provide any information regarding the parties’ peremptory challenges, but the jury

strike sheets show Defendant used all of his peremptory challenges.

Defendant also alleges inadequacies in various bench conferences, both during

voir dire and during trial. Defendant cites State v. Pinion, 06-2346 (La. 10/26/07),

968 So.2d 131, in which the supreme court reversed the defendant’s conviction. In

Pinion, bench conferences during the voir dire were unrecorded, the record was

unclear when peremptory strikes and challenge for cause were made, or which party

made them. The supreme court held that the unclear record of the jury selection

process required reversal due to the uncertainty regarding the cause-based challenges.

Id.

The supreme court also stated that the contents of the bench conferences should

have been recorded in accordance with La.Code Crim.P. art. 843. Further, the Pinion

court stated the trial court, rather than defense counsel, bore the ultimate

responsibility for ensuring the bench conferences were recorded, since La.Code

Crim.P. art. 795(B)(2) requires that peremptory challenges be made in side bar

conferences. Id.

The State cites State v. Campbell, 06-286 (La. 5/21/08), 983 So.2d 810, cert.

denied, __ U.S. __, 129 S.Ct. 607 (2008), in which the supreme court denied relief

to a defendant who claimed he was prejudiced by omissions from the transcript of the

voir dire. Campbell is easily distinguishable from Pinion. The Campbell opinion

clearly contains more detail than was available in Pinion, as the former includes

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detailed discussions of the voir dire examinations of various named jurors or potential

jurors. Id.

In the present case, in many record entries, the individual venire member

speaking is named only as “Potential Juror.” On July 28, Defendant filed a Motion

for Supplementation of Record and for Suspension of Briefing Delays, noting the

many entries of “inaudible” in the record, and the unrecorded bench conferences.

This court granted the motion, and ordered the court reporter to transcribe all bench

conferences, attempt to clarify the inaudible responses in the record, and attempt to

identify the venire member or members identified as “potential juror” in the original

record. On August 22, this court received a supplemental record containing new

transcripts of the voir dire and the trial. In an affidavit, the court reporter affirmed her

attempts to clarify the “inaudible” responses, but noted there was no way to identify

potential jurors who were not named in open court.

Jury strike sheets received from the district court show that Defendant used all

of his peremptory strikes. Therefore, he may seek review of the denial of his

challenges for cause on appeal. The strike sheets also list which venire members

were challenged for cause. However, they do not show which party made each

individual challenge, and do not list the reasons for any challenge.

Although trial counsel sought and obtained a copy of the voir dire transcript,

and argued possible bias by the jury foreman in his motion for new trial, he did not

raise any issue regarding the challenges made during voir dire. However, this does

not preclude Defendant from raising such issues on appeal, either through counsel or

pro se. The Pinion court explained:

In jury selection, counsel satisfies the requirements of Louisiana’s
contemporaneous objection rule by stating his grounds for a cause

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challenge and then by removing the juror with one of his remaining
peremptory challenges when the court declines to excuse the juror for
cause. La.C.Cr.P. art. 841 (‘It is sufficient that a party, at the time the
ruling or order of the court is made or sought, makes known to the court
the action which he desires the court to take ... and the grounds
therefor.’).

Pinion, 968 So.2d at 136.

The difficulty in this case, as in Pinion, is the fact that the discussions of the

jury challenges do not appear in the record. We find the record does not contain

enough information for Defendant to effectively challenge the denials of his

challenges for cause. As a practical matter, a careful reading of the revised transcript

of voir dire enables a reader to identify at least some of the unnamed prospective

jurors. However, any attempt at argument or review would require identification of

Defendant’s unrecorded causal challenges, and reconstruction of both the reasons

supporting them and the reasons for the trial court’s denial of them. Any such attempt

would venture into the realm of mere speculation. As the current record is

insufficient for practical review of the denials of Defendant’s challenges for cause,

Defendant’s conviction and sentence are vacated and the case remanded for new trial,

pursuant to Pinion.

Because our resolution of this assignment is dispositive, we pretermit the

discussion of all other matters.

DECREE

Defendant’s conviction and sentence are vacated due to the incomplete record

of the voir dire process. The case is remanded for further proceedings.

CONVICTION AND SENTENCE VACATED; CASE REMANDED FOR

FURTHER PROCEEDINGS.

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