State of Louisiana v. Jody D. Hamilton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-204

STATE OF LOUISIANA

VERSUS

JODY D. HAMILTON

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C16173
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

Amy, J., dissents and assigns reasons.

CONVICTIONS VACATED; SENTENCES VACATED; REMANDED.

Van Hardin Kyzar
District Attorney
R. Stuart Wright
Assistant District Attorney
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
Counsel forAppellee:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Jody D. Hamilton

Jody D. Hamilton
In Proper Person
Louisiana State Penitentiary
Camp C Tiger Unit 4-Right
Angola, Louisiana 70712
Defendant

KEATY, Judge.

Defendant appeals his convictions of second degree murder and attempted

second degree murder. The State answers the appeal. For the following reasons,

we vacate and remand.

FACTS AND PROCEDURAL BACKGROUND

Defendant, Jody D. Hamilton, entered into a plan with Demarcus Law and

Edward Paige to steal drugs from someone else. On December 12, 2009,

Defendant and Law went to the residence where the drugs were located, and Law

kicked in the door. Defendant then shot Dakaria Williams, who was in the living

room, in the leg. Law proceeded to the kitchen where Paige and Shamichael

Berryman were and began shooting. Defendant shot Williams several more times

but did not enter the residence. When leaving the residence, Law noticed Williams

was still moving and shot him in the face. Berryman was shot six times and died

as a result of his injuries. Williams, who had been shot at least nine times,

survived.

Defendant was charged in an indictment with one count of second degree

murder, a violation of La.R.S. 14:30.1, and one count of attempted second degree

murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27. Defendant entered a

plea of not guilty, and this matter proceeded to trial by jury on September 19, 2011.

The jury found Defendant guilty as charged, and the trial court later sentenced him

as follows: life imprisonment at hard labor, without benefit of probation, parole, or

suspension of sentence, for second degree murder; fifty years at hard labor for

attempted second degree murder, with eighty percent of that sentence to be served

without benefit of parole. The trial court ordered the sentences to run

consecutively. A motion for appeal was filed on the same date Defendant was

sentenced and was subsequently granted.

Defendant is now before this court asserting four assignments of error.

Therein, he contends that the trial court erred in denying challenges for cause of

potential jurors; he was denied the right to full review on appeal because the record

was incomplete; the jury instructions incorrectly included the phrase “or to inflict

great bodily harm” within the attempted second degree murder charge; and the trial

court erred in admitting two firearms into evidence because the weapons were not

connected to him. For the following reasons, we find that Defendant‟s assignment

of error regarding an incomplete record has merit which warrants his convictions

and sentences be vacated.

DISCUSSION

In his second assignment of error, Defendant contends that he was denied

the right to full review on appeal as the record was incomplete. Defendant asserts

that during jury selection, the judge and attorneys discussed the challenges raised

by both sides in chambers, but those discussions were not recorded. He argues that

the off-the-record discussions with regard to the use of all challenges, both

peremptory and for cause, would add additional support to the arguments raised in

his first assignment of error regarding challenges for cause.1

The State asserts that, despite Defendant‟s argument that there may have

been other prospective jurors the trial court should have excused for cause,

Defendant objected to only four prospective jurors. The State argues that the only

conclusion that can be derived from Defendant‟s failure to object to the trial

court‟s rulings on other prospective jurors is that Defendant had no objections to

the trial court‟s rulings regarding any other prospective jurors. The State further

argues that the failure to record the conferences held in chambers in no way

1
In his first assignment of error, Defendant contends the trial court erred in denying
challenges for cause of potential jurors, depriving him of his constitutional right to a fair and
impartial jury.
2

prejudiced Defendant. In a footnote, the State asserts that jury strike sheets are

normally made a part of the record. However, according to the State, the strike

sheet in the case at bar remains in the judge‟s possession. The State contends that

defense counsel and counsel for the State agreed that any objections to the jury

selection process would be put on the record, out of the presence of the jury, at the

conclusion of jury selection.2

The State relies on La.Code Crim.P. art. 800, which states, in pertinent part:

“A defendant may not assign as error a ruling refusing to sustain a challenge for

cause made by him, unless an objection thereto is made at the time of the ruling.

The nature of the objection and grounds therefor shall be stated at the time of

objection.” The State contends that the trial court complied with this article, with

the exception that objections were placed on the record, by agreement of the

parties, after the jury was selected. The State also contends that, unless a

defendant objects to the overall selection process, that process is not required to be

recorded. The State further contends that Defendant has not provided any

authority mandating that the information at issue be recorded.

In his reply brief, Defendant asserts the State has attempted to shift the

burden to the defense to insure a proper recording of the proceedings. However, in

accordance with State v. Pinion, 06-2346 (La. 10/26/07), 968 So.2d 131, it is the

responsibility of the trial court to insure an adequate recording of the proceedings.

Additionally, Defendant argues that the State‟s assertion that because he objected

to only four prospective jurors he cannot raise argument as to any other prospective

jurors ignores Defendant‟s assertion that it is necessary to know the peremptory

and cause challenges raised by each side in order to determine whether the failure

to record the in-chambers conferences was harmless.

2
Despite the State‟s contention, such an agreement does not appear in the record.
3

In Pinion, the supreme court noted that the questioning of all jury panels by

the State, defense, and the trial court appeared to have been completely recorded

and transcribed. However, the State and defense exercised their cause and

peremptory challenges during bench conferences, and the recordings of those

conferences were garbled. As a result, many of the challenges by the parties were

“lost in a haze of „inaudible‟ responses.” Pinion, 968 So.2d at 132. Further, the

minute entries regarding jury selection identified by name all of the prospective

jurors called for examination and recorded which jurors had been selected on the

panel. However, the minutes failed to record which side excused the remaining

jurors.

In Pinion, the first circuit found the defendant claimed he was unable to

show prejudice because of an inadequate transcript. However, because the

defendant did not object to the general composition of the jury, he failed to make

the required showing of prejudice based on the missing portion of the transcript.

The supreme court granted the defendant‟s writ application and reversed the

decision of the first circuit because it was possible to reconstruct portions of what

transpired during the bench conferences and to determine with a reasonable degree

of certainty that defendant‟s appeal was in fact prejudiced by the inadequate record.

In its opinion, the supreme court stated:

This Court has never articulated a per se rule either requiring the
recording of bench conferences or exempting them from the scope of
La.C.Cr.P. art. 843, which requires in felony cases the recording not
only of the evidentiary portions of trial but also of “the examination of
prospective jurors . . . and objections, questions, statements, and
arguments of counsel.” State v. Hoffman, 98-3118, p. 50 (La.4/11/00),
768 So.2d 542, 586. The Court has instead conducted a case-specific
inquiry to determine whether the failure to record the conferences
results in actual prejudice to the defendant‟s appeal. As a general rule,
the failure of the record to reflect the argument of counsel on
objections, even when made in open court, does not affect a
defendant‟s appeal because it does not hinder adequate review of the
trial court‟s ruling. State v. Johnson, 438 So.2d 1091, 1104 (La.1983).
4

Thus, the failure to record bench conferences will ordinarily not affect
the direct review process when the record suggests that the unrecorded
bench conferences had no discernible impact on the proceedings and
did not result in any specific prejudice to the defendant. See, e.g.,
Hoffman, 98-3118 at 50-51, 768 So.2d at 587 (trial court cured any
record problems “by summarizing substantive unrecorded conferences
for the record”); State v. Castleberry, 98-1388, pp. 28-29 (La.4/13/99),
758 So.2d 749, 773 (three unrecorded bench conferences during direct
examination of state witnesses had no discernible impact on the
proceedings and the fourth concerned a mistrial motion by defense
counsel, the basis of which was “easily ascertainable from the record”
without regard to the unrecorded side-bar discussion); State v. Deruise,
98-0541, pp. 9-15 (La.4/3/01), 802 So.2d 1224, 1233-37 (failure to
record bench conferences in which the prosecutor and defense counsel
made their peremptory and cause challenges did not prejudice the
appeal when the jury strike sheet was available for review and
detailed the exercise of peremptory challenges by both sides and when
the transcript of the voir dire revealed a substantial basis for denying a
defense cause to the juror, even assuming that the challenge had been
made but not preserved in the record; remaining unrecorded bench
conferences involved evidentiary matters that were otherwise
addressed in the appeal, or involved matters of no discernible impact
for which the defendant failed to demonstrate prejudice); State v.
Allen, 95-1754, p. 11 (La.9/5/96), 682 So.2d 713, 722 (failure to
record arguments at the bench concerning some of the defense
peremptory challenges harmless when challenges for cause and
arguments on the challenges were fully transcribed in the record and
the minutes clearly reflected which jurors had been excused
peremptorily and whether the state or defense had exercised the
challenge).

On the other hand, in State v. Landry, 97-0499 (La.6/29/99),
751 So.2d 214, a combination of loud construction noise at the
courthouse and audio recording problems on the part of the court
reporter rendered the record grossly incomplete in several respects,
including the failure to record peremptory strikes and challenges for
cause made at the bench. Landry, 97-0499 at 1-2, 751 So.2d at 215.
This Court reversed the defendant‟s capital conviction and sentence
and remanded for a new trial because the deficiencies deprived the
defendant of his constitutional right of appeal and judicial review.
Landry, 97-0499 at 4, 751 So.2d at 216. The Court thereby reaffirmed
that “it is not the defendant‟s obligation to insure an adequate
record . . . . it is the duty of the court . . . . to see that the court reporter
makes a true, complete and accurate record of the trial.” Landry, 97-
0499 at 3, 751 So.2d at 216 (citing American Bar Association
Standards Relating to the Function of the Trial Judge, § 2.5 (1972)).

Pinion, 968 So.2d at 134-35.

5

Following this discussion, the supreme court examined the jury selection

process and concluded that in light of the requirement of La.Code Crim.P. art.

795(B)(2), which requires that challenges be made in side bar conferences out of

the hearing of the jurors, the defense could have reasonably “assume[d] that the

court had discharged its correlative duty of insuring that the minutes of the

proceedings would conform to the requirements for the lodging of appeals in

criminal cases.” Id. at 135. The supreme court concluded that:

[B]ench conferences are a material part of the proceedings for
purposes of La.C.Cr.P. art. 843 and their omission from the present
case, given the reasonable likelihood that counsel exhausted his
peremptory challenges, the uncertainty with respect to how many
cause challenges the defense made unsuccessfully, and the absence of
other contemporaneous records accounting for the selection process,
e.g., adequate minutes or jury strike sheets, requires reversal of
defendant‟s conviction and sentence.

Id. at 136. The supreme court then vacated the defendant‟s conviction and

sentence and remanded the matter to the trial court for further proceedings. Id.

In State v. Williams, 06-1327 (La.App. 4 Cir. 1/23/08), 977 So.2d 160, writ

denied, 08-413 (La. 10/24/08), 992 So.2d 1033, the defendant argued that his right

to full appellate review was impinged because the in-chambers portion of voir dire,

where he raised challenges for cause, was not available. The fourth circuit noted

that appellate counsel, who was not counsel at trial, raised no argument as to any

specific juror who should not have been seated. Id.

The fourth circuit ruled as follows:

Here, unlike in Pinion but as in Deruise, the record contains detailed
jury sheets that indicate the peremptory strikes for each party as well
as those jurors who were excused for cause. In addition, as in Deruise,
the transcript of voir dire includes the questioning of each prospective
juror, from which it can be determined if there was a basis for any
challenges for cause that the defense may have brought and may have
been denied by the trial court, thereby causing the defense to exercise
a peremptory challenge for a juror. A reading of the transcript of voir
dire shows that there was no basis to excuse for cause any of the
jurors who ultimately served on the jury or those whom the appellant
6

had to excuse peremptorily. Thus, as in Deruise, the appellant cannot
show prejudice from the loss of the in-chambers portions of the voir
dire where the defense may have challenged any of these jurors for
cause because there was no basis for granting a challenge for cause as
to any of the jurors who sat at trial or whom the defense peremptorily
excused. Because the appellant cannot show prejudice from the lack
of the transcript of these in-chambers conferences, he is not entitled to
a new trial on this basis.

Id. at 176.

In State v. Campbell, 06-286 (La. 5/21/08), 983 So.2d 810, cert. denied, 555

U.S. 1040 (2008), the defendant claimed that the transcript of numerous court

appearances, hearings, and bench conferences were omitted from the appellate

record. He also suggested that record omissions during voir dire rendered it

difficult to establish the viability of cause challenges.

The supreme court addressed the issue stating:

In Landry, this Court reversed a conviction and death sentence
because the appellate record was so deficient that the Court could not
properly review the case for error. Landry, 1997-0499, pp. 1-4, 751
So.2d at 214-16. Even though this Court has found reversible error
when material portions of the trial record were unavailable or
incomplete, a “slight inaccuracy in a record or an inconsequential
omission from it which is immaterial to a proper determination of the
appeal” does not require reversal of a conviction. [State v.] Draughn,
2005-1825 p. 63 [(La. 1/17/07)], 950 So.2d [583] at 625; State v.
Castleberry, 1998-1388 p. 29 (La.4/13/99), 758 So.2d 749, 773, cert.
denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999), quoting
State v. Allen, 1995-1754 (La.9/5/96), 682 So.2d 713 (internal citation
omitted). An incomplete record may be adequate for appellate review.
Castleberry, 1998-1388 p. 29, 758 So.2d at 773; State v. Hawkins,
1996-0766 p. 8 (La.1/14/97), 688 So.2d 473, 480. A defendant will
not be entitled to relief on the basis of an incomplete record absent a
showing that he was prejudiced by the missing portions of the record.
Id.

Defense counsel contends that the fact that the defendant
represented himself at trial, coupled with the issues raised regarding
the defendant‟s competency, necessitate a complete and accurate
record since the defendant lacks the ability to provide important
information to his appellate counsel. However, the defense offers no
suggestion or argument that the defendant was prejudiced by the
record omissions.

....
7

With regard to the transcription of the voir dire proceedings, we
found no difficulty in determining the appropriateness of the cause
challenges, which were the issues raised by the defendant on appeal.

Id. at 872-74.

In State v. Spears, 08-831 (La.App. 3 Cir. 3/4/09), 8 So.3d 119, the

defendant argued the record was so deficient in some areas that it deprived him of

his right to appeal. Many portions of the voir dire transcript referred to individual

venire members as “potential juror” rather than by name. Id. at 121. Additionally,

a number of the comments and statements made throughout voir dire were listed as

“inaudible.” Id.

Jury strike sheets received by this court in Spears indicated the defendant

used all of his peremptory strikes. The sheets listed which venire members were

challenged for cause but did not show the party making the individual challenges

and the reasons for any challenge. This court noted that the defendant did not raise

any issue regarding the challenges made during voir dire. This court further stated:

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.

Id. at 122.3

3
In Spears, 8 So.3d 119, this court stated that Campbell, 983 So.2d 810, was easily
distinguishable from Pinion, 968 So.2d 131, as the Campbell opinion, “clearly contains more
detail than was available in Pinion, as the former includes detailed discussions of the voir dire
examinations of various named jurors or potential jurors.” Id. at 121. The assertion that
Campbell contained more detail is incorrect, as the court in Pinion stated that questioning of all
8

In State v. L.W., 11-904 (La.App. 3 Cir. 6/6/12), __So.3d__, the defendant

alleged that the record was deficient because neither the transcript nor the minutes

of voir dire contained either party‟s challenges for cause or peremptory challenges

as to any of the prospective jurors. The record contained the entire colloquy

between the trial court, the attorneys, and prospective jurors, and the identity of the

prospective jurors was readily apparent. Several bench conferences during voir

dire, however, were not recorded. This court noted that the voir dire transcript

indicated that forty-one prospective jurors were called, eight of which were

excused by the trial court for cause with reasons stated. Nineteen of the

prospective jurors were excused following bench conferences. Neither the

transcript nor minutes of voir dire indicated which party made the challenges, the

grounds for the challenges, or the trial court‟s reasons for its rulings. Additionally,

the minutes did not detail any peremptory challenges, only that certain jurors were

challenged for cause, excused for cause, or excused.

This court found:

Unlike the facts before this court in Spears, 8 So.3d 119, the
voir dire transcript contains detailed discussion of the voir dire
examinations, including all of the questions posed by the trial court
and parties and the responses of the each prospective juror.
Additionally, the defendant does not identify a specific juror or jurors
who should not have been seated based on the information available
in the voir dire transcript. Accordingly, we find the defendant has not
established he was prejudiced by the missing transcriptions of bench
conferences during voir dire.

Id. at 14.

The case at bar is like Pinion, 968 So.2d 131, in that there is a transcript of

voir dire, but that transcript does not include the in-chambers discussions regarding

the exercise of cause and peremptory challenges, and the minute entries do not

three panels by the State, defense, and trial court appeared to have been completely recorded and
transcribed. Pinion, 968 So.2d at 132.
9

indicate which side excused the prospective jurors and why. Additionally, the

record indicates that Defendant used all twelve of his peremptory challenges.

Despite the fact that there was an objection to the denial of four challenges for

cause asserted by Defendant, the record is uncertain as to exactly how many cause

challenges Defendant made unsuccessfully. Based on Pinion, we find that the

Defendant‟s convictions and sentences should be vacated and the matter remanded

for further proceedings.

This case is distinguishable from Campbell, 983 So.2d 810, because

Defendant in the case at bar has alleged that the record omissions would add

additional support to the arguments raised in the assignment of error regarding the

challenges for cause and show a possible pattern of disparate treatment. In contrast,

the defendant in Campbell offered no suggestion or argument that he was

prejudiced by the record omissions.

The case at bar is also distinguishable from Williams, 977 So.2d 160, as the

record at issue does not indicate which jurors were challenged for cause, other than

the four jurors defense counsel addressed at the completion of jury selection, or

peremptorily struck. Further, a reading of the transcript of voir dire cannot show

there was no basis to excuse for cause any of the jurors who ultimately served on

the jury or those whom Defendant had to excuse peremptorily, as one cannot

ascertain who was peremptory excluded. Such a determination would call for

speculation, which this court disapproved of in Spears, 8 So.3d 119.

This case is also similar to L.W., __So.3d__, in that the instant record

contains a complete transcript of voir dire, and Defendant fails to identify a

specific juror or jurors who should not have been seated based on the information

available in the transcript of voir dire. However, this case is distinguishable from

L.W. in that Defendant in the case at bar makes some argument regarding the
10

unrecorded bench conferences and the defendant in L.W. merely claimed his right

to appeal based on a complete record of all evidence upon which the judgment was

based was violated.

Based on the supreme court‟s decision in Pinion, 968 So.2d 131,

Defendant‟s claim has merit; thus, his convictions and sentences will be vacated

and the matter remanded to the trial court for further proceedings. In light of the

foregoing ruling, this court need not address any of Defendant‟s other assignments

of error.

DECREE

For the foregoing reasons, we vacate Defendant‟s convictions of second

degree murder and attempted second degree murder. We further vacate the

sentences imposed upon Defendant arising out of those convictions. This matter is

remanded to the trial court for further proceedings.

CONVICTIONS VACATED; SENTENCES VACATED; REMANDED.

11

NUMBER 12-204

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

JODY D. HAMILTON

AMY, J., dissenting.

I respectfully dissent from the majority’s determination to vacate the

defendant’s convictions and sentences. Certainly, it is the trial court’s duty to see

that the court reporter makes a true, complete and accurate record of the trial. State

v. Pinion, 06-2346 (La. 10/26/07), 968 So.2d 131. However, in this case, the voir

dire transcript contained within the record permits a review of the appropriateness

of the trial court’s denials of the defendant’s challenges for cause. State v.

Campbell, 06-0286 (La. 5/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129

S.Ct. 607 (2008). In this light, and given that the defendant’s contention that the

cited omissions from the record would reveal a possible pattern of disparate

treatment is only speculative in nature, I find that a reversal is not required.

For this reason, I respectfully dissent.