State of Louisiana v. Bill Eric Winters

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-581

STATE OF LOUISIANA

VERSUS

BILL ERIC WINTERS

CONSOLIDATED WITH

KA 12-205

STATE OF LOUISIANA

VERSUS

BILL ERIC WINTERS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 129658 c/w 123989
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

REMANDED WITH INSTRUCTIONS.

Mark O. Foster
Louisiana Appellate Project
222 Adelaide Street
Natchitoches, LA 71457
(337) 572-5693
COUNSEL FOR DEFENDANT/ APPELLANT/ APPELLEE:
Bill Eric Winters

Allan P. Haney
Assistant District Attorney
15th Judicial District Court
P. O. Box 4308
Lafayette, LA 70502
(337) 291-7009
COUNSEL FOR APPELLANT/APPELLEE:
State of Louisiana

PETERS, Judge.

On June 7, 2009, the State of Louisiana (state) charged the defendant, Bill

Eric Winters, by bill of information with simple burglary, a violation of La.R.S.

14:62, and with possession of cocaine, a violation of La.R.S. 40:967. On the

morning of trial, the state severed the possession of cocaine charge and the matter

proceeded to trial on the simple burglary charge. The jury convicted the defendant

of simple burglary on April 6, 2010, and on November 18, 2010, the trial court

sentenced the defendant to serve seven years at hard labor.

Four days later, on November 22, 2010, the state charged the defendant as

an habitual offender pursuant to La.R.S. 15:529.1. The trial court subsequently

adjudicated the defendant as an habitual offender and sentenced him to serve

twelve years at hard labor without the benefit of probation, parole, or suspension of

sentence.

The defendant appealed his simple burglary conviction, asserting four

assignments of error. In a separately filed appeal, the state asserted one assignment

of error directed at the sufficiency of the sentence imposed in the habitual offender

proceedings. We consolidated these appeals by order dated February 22, 2012.

For the following reasons, we remand the matter to the trial court for a hearing to

address the defendant‟s jury challenges pursuant to Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712 (1986) in a manner consistent with this opinion. In doing so,

we pretermit consideration of the remaining issues raised on appeal pending the

outcome of the Batson hearing.

DISCUSSION OF THE RECORD

There is little dispute concerning the facts in this matter. While on patrol on

Sunday morning, June 7, 2009, Officer Forrest Blanton of the Lafayette Police

Department was ordered to proceed to 210 Coolidge Street. He arrived around

7:40 a.m. and observed a brown bicycle laid up against a wooden railing at the

entrance to the Oncologics, Incorporated business office. Officer Nathan Thorton

joined him, and he and Officer Thorton found the front office door unlocked and

the lights inside off. Standing in the foyer of the office, Officer Blanton heard

“rustling in one of the offices.” When he looked down a long hallway in the

direction of the noise, he observed the defendant peering into the hallway from one

of the offices. He and Officer Thorton took the defendant into custody and initially

charged him with unauthorized entry of a place of business. When they physically

searched the defendant, they found that he was in possession of some “snacks and

things.”

The officers then had the dispatcher contact the alarm company providing

security for the office to have someone with a key come to the scene because the

building remained unsecured. John Ferguson responded to the request and, upon

his arrival at the scene, he walked through the building with the officers. They

observed no pry marks around the door and found no tools on the premises to

suggest a physical break-in. However, the did find that the automatic-lock door

had not functioned properly; it left the plunger stuck inside, causing the door to be

unlocked. They freed the plunger and secured the door. At the request of the

officers, Mr. Ferguson performed a cursory examination of the office space to

determine if anything was missing or out of place. He did not notice any

equipment missing, but did notice that “[s]ome cabinets and drawers were opened

and had been rummaged through.”

Mr. Ferguson testified the office is not open on Sunday, no employees are

present on Sunday, and the building houses the company‟s accounts receivable

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department and serves other corporate functions. On Monday after the Sunday

break-in, Mr. Ferguson asked the employees at the Coolidge Street office to check

for anything that might be missing. While he never received a direct report

addressing this request, Kimberly Smith, one of the employees at the Coolidge

Street office, testified that when she arrived for work on Monday, her desk drawer

was open and “some Gobstoppers and some special dark chocolate” were missing

from her desk, and her calendar on her desk had been moved. However, Ms. Smith

did not provide the officers with a statement concerning the candy until July 28,

2009, or some forty-eight days after the incident.

Officer Thorton testified that the snacks found on the defendant at the time

of his arrest included Gobstopper candy. Although both officers recalled the

snacks found on the defendant, neither officer took those items into evidence. In

fact, according to Officer Thorton, they were left at the scene.

In his appeal, the defendant asserts (1) that the evidence is insufficient to

support his conviction of simple burglary, (2) that the trial court erred in not

considering his complaint of ineffective assistance of counsel, (3) that the trial

court erred in refusing to consider his Batson challenges, and (4) that the trial

record is incomplete, thereby depriving him of his constitutional right to a

complete record on appeal. In its appeal, the state asserts that the trial court erred

in sentencing the defendant to an illegally lenient sentence in the habitual offender

proceedings.

We find merit in the defendant‟s third and fourth assignments of error.

These findings require that we pretermit the remaining assignments of error and

remand this matter to the trial court for further proceedings consistent with this

opinion.

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OPINION

In his third and fourth assignments of error, the defendant asserts that the

trial court erred in refusing to consider his challenges pursuant to Batson, and that

the lack of a complete record on this issue deprives him of his constitutional right

to a complete record on appeal.

The record initially provided this court did not contain the transcript of the

jury selection process. Pursuant to the defendant‟s request, this court ordered that

the record be supplemented with the voir dire transcript, which was subsequently

provided. The defendant apparently believed that the supplemental transcript

would include a discussion of the peremptory challenges, but it does not. The

record as supplemented contains a portion of the proceedings associated with the

jury selection process, but is itself incomplete.

The supplemental record establishes that the jury selection process began

with the selection of twenty-four potential jurors for interrogation concerning their

qualifications to serve. The defendant‟s third assignment of error arises from the

fact that, during the jury selection process, the defendant‟s trial counsel moved to

Batson challenge four potential jurors peremptorily excused by the state: Tray

Arceneaux, Felton Landry, Kimberly Taylor, and Demetria Batiste. Nothing in the

record establishes the race of these four jurors or, for that matter, the race of any of

the other twenty.

The record does establish that Mr. Arceneaux is a twenty-three-old

unmarried construction worker and a high school graduate. Mr. Landry did not

state his age, but he is married and works offshore as a roustabout. He has a tenth-

grade education and he and his wife have no children. Ms. Taylor is twenty-seven

years old, has three children (the oldest is eight) and is separated from her husband.

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At the time of trial, she was unemployed. Ms. Batiste is thirty-four years old and

the mother of two children, ages eighteen and eleven. At the time of trial, she was

unemployed and enrolled in cosmetology school.

During the voir dire process, all of the jurors were questioned by the trial

court, the state‟s attorney, and the defendant‟s trial counsel concerning their ability

to serve. The responses provided were generally appropriate to the inquiries.

However, when the state‟s attorney propounded a hypothetical question whether

stealing should be excused if the intent was to feed the perpetrator‟s children, Mr.

Arceneaux did not respond. Ultimately, however, he stated that he could return a

verdict based on the evidence presented and could follow the instructions as to the

applicable law. Ms. Taylor had some concerns about her ability to render

judgment if the defendant did not take the stand in his own defense. Still, she

indicated that she return a verdict based on the evidence presented without regard

to whether the defendant took the stand. Although she too stated that she could

return a verdict based on the evidence presented, Ms. Batiste stated that she

believed stealing food to feed one‟s children was an excuse for theft.

After the round of questioning was complete, the trial court summoned the

parties to the jury deliberation room for a discussion outside the presence of the

prospective jurors. The transcript of the exchanges in the jury deliberation room

relating to individual jurors is incomplete. It begins with the exercise of challenges

for cause by each side, is silent concerning the peremptory challenge phase, and

ends with a short discussion concerning the defendant‟s Batson challenge.

Specifically, the transcript reads follows:

[RECESS]

[IN JURY DELIBERATION ROOM OUTSIDE THE PRESENCE
OF PROSPECTIVE JURORS]
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THE COURT: All right, gentlemen, let‟s proceed. Any challenges
for cause, Mr. Haney [counsel for the state]?

MR. HANEY: Yes, Your Honor. Ms. Babin, Loretta Babin. She
seemed unsure and the incident she and her daughter had with the
police officers - - I don‟t think - -

THE COURT: Granted. Mr. McCann [counsel for the defendant]?

MR. MCCANN: Ms. Katie Christensen. She indicated she could be a
better judge if the defendant testified - -

THE COURT: Granted.

MR. HANEY: Will we be able to back strike - -

THE COURT: - - yes, we‟ll see - - yes.

[AFTER ALL CHALLENGES WERE MADE BY THE STATE
AND DEFENSE, THE DEFENSE MOVED FOR BATSON
CHALLENGES]

MR. MCCANN: I have to challenge – make the Batson challenge on
Tray Arceneaux, Felton Landry, Kimberly Taylor, and Demetria
Batiste.

MR. HANEY: Judge, there is no racial intent –

MR. MCCANN: I believe they should be questioned individually.

THE COURT: Denied. Denied. I note your objection for the record.

Thus, the entire on-the-record discussion concerning peremptory challenges is

nonexistent. That being the case, we have no way of knowing what, if anything,

was said relative to racial makeup of the jury pool, reasons for exercising

individual preemptory challenges, or the trial court‟s response to any such

discussions.

The court minutes also shed little additional light on the events in the jury

deliberation room. Those minutes provide the following with relation to the jury

selection process:

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AT THE REQUEST OF THE COURT, 24 PORSPECTIVE JURORS
WERE SEATED IN THE JURY BOX AND QUESTIONED BY
THE VOIR DIRE AND THEIR DISPOSITIONS ARE BELOW:

JOHNNY SHANKLIN ACCEPTED
TRAY ARCENEAUX EXCUSED BY STATE
FELTON LANDRY EXCUSED BY STATE
KATIE CHRISTENSEN EXCUSED FOR CAUSE
BERNARD HARRIS EXCUSED BY DEFENSE
REBECCA NAQUIN ACCEPTED
TAMMY ATWOOD EXCUSED BY DEFENSE
LENA HILL EXCUSED BY STATE
KIMBERLY TAYLOR ACCEPTED (BACKSTRIKE)
DEMETRIA BATISTE EXCUSED BY STATE
TODD VENABLE ACCEPTED
MARTHA SIMON ACCEPTED
HARRY BROWN JR EXCUSED BY STATE
LORETTA BABIN EXCUSED FOR CAUSE
VALARIE STANDEFER ACCEPTED
THOMAS EASTERDAY EXCUSED BY DEFENSE
MELINDA SANDERS EXCUSED BY DEFENSE
ALLEN DEVILLIER ACCEPTED
SHONNA BORUSSARD EXCUSED BY DEFENSE
ALFREDO MENDOZA ACCEPTED–ALTERNATE #1
SANDY DUHON EXCUSED–NOT NEEDED
JUDE BOUDREAUX EXCUSED–NOT NEEDED
DAWN LOUVIERE EXCUSED–NOT NEEDED
TAMMY BUTLER EXCUSED–NOT NEEDED

OUTSIDE THE PRESENCE OF THE POTENTIAL JURORS,
BEFORE CHALLENGES WERE MADE BY STATE AND
DEFENSE, THE STATE CHALLENGED FOR CAUSE, LORETTA
BABIN AND GAVE ARGUMENTS, TO WHICH THE COURT
GRANTED. THE DEFENSE THEN CHALLENGED FOR CAUSE,
KATIE CHRISTENSEN AND GAVE ARGUMENTS, TO WHICH
THE COURT GRANTED.

AFTER CHALLENGES WERE MADE BY STATE AND
DEFENSE, THE DEFENSE MOVED FOR A BATSON
CHALLENGE, ON POTENTIAL JURORS, TRAY ARCENEAUX,
FELTON LANDRY, KIMBERLY TAYLOR, AND DEMETRIA
BATISTE AND GAVE ARGUMENTS.

THE STATE THEN PRESENTED ARGUMENTS REGARDING
THE DEFENSE‟S BATON[SIC] CHALLENGES.

THE DEFENSE THEN REQUESTED THAT THOSE POTENTIAL
JURORS BE INDIVIDUALLY QUESTIONED AND PRESENTED
ARGUMENTS, TO WHICH THE COURT DENIED BUT NOTED
THE DEFENSE‟S OBJECTION.
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From the minutes, we do know that, in addition to the two jurors that were excused

for cause, the state exercised peremptory challenges against three men and two

women (including the four at issue in the Batson challenge), and the defendant‟s

trial counsel exercised peremptory challenges against two men and three women.

The minutes also assert that the state presented arguments regarding the

defendant‟s Batson challenges. However, the record does not support this

assertion.

When a Batson challenge is asserted, the proponent bears the burden of

presenting a prima facie showing of purposeful discrimination in the selection of

the jury. The burden then shifts to the opponent to show a non-discriminatory

basis for its peremptory challenge. The trial court then determines whether the

proponent has carried his burden of proving purposeful discrimination. State v.

Nelson, 10-1724 (La. 3/13/12), __ So.3d __. However, as stated in State v. Sparks,

88-17, p. 40 (La. 5/11/11), 68 So.3d 435, 470, “[t]he [Supreme] Court did not

formulate any particular requirements for determining whether a defendant

established a prima facie case. Rather, the Court expressed confidence in the trial

judges‟ ability to determine the establishment of a prima facie case.” In State v.

Draughn, 05-1825, pp. 24-26 (La. 1/17/07), 950 So.2d 583, 602-03, cert. denied,

522 U.S. 1012, 128 S.Ct. 537 (2007), the supreme court stated:

[T]he Supreme Court further clarified its Batson analysis with regard
to Batson’s first step in Johnson v. California, 545 U.S. 162, 125 S.Ct.
2410, 162 L.Ed.2d 129 (2005), and its analysis of Batson’s third and
final step in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162
L.Ed.2d 196 (2005). Our review of the defendant‟s claim is informed
by the Supreme Court‟s pronouncements in Johnson and Miller-El.

Johnson reiterated that “a prima facie case of discrimination
can be made out by offering a wide variety of evidence, so long as the
sum of the proffered facts gives „rise to an inference of discriminatory
purpose.‟” Johnson, 545 U.S. at 169, 125 S.Ct. 2410, citing Batson,
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476 U.S. at 94, 106 S.Ct. at 1712. In Johnson, the Supreme Court
quoted Batson’s explanation of what constitutes a prima facie case:

[A] defendant may establish a prima facie case of
purposeful discrimination in selection of the petit jury
solely on evidence concerning the prosecutor‟s exercise
of peremptory challenges at the defendant‟s trial. To
establish such a case, the defendant first must show that
he is a member of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant‟s race.
Second, the defendant is entitled to rely on the fact, as to
which there can be no dispute, that peremptory
challenges constitute a jury selection practice that permits
“those to discriminate who are of a mind to
discriminate.” Finally, the defendant must show that
these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude
the veniremen from the petit jury on account of their race.
Id., at 96, 106 S.Ct. 1712 (citations omitted) (quoting
Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97
L.Ed. 1244 (1953)). (Emphasis supplied).

Johnson, 545 U.S. at 169, 125 S.Ct. 2410.
....
Johnson makes clear that the burden of production in the first
Batson step is squarely on the defendant.

Given the record before us, it is clear that, with the exception of Ms. Batiste,

the responses from these potential jurors do not indicate any race-neutral basis for

excluding them from the jury. Thus, the record suggests the possibility that a

Batson violation exists.

A similar situation occurred in State v. Givens, 99-3518 (La. 1/17/01), 776

So.2d 443, where the equal protection challenge was gender-related. After the

state struck several male potential jurors, the defendant objected, and the trial court

denied the objection without comment. The Louisiana Supreme Court held:

Because it is impossible to meaningfully review whether the
defendant proved his claim that the prosecutor impermissibly struck
male jurors solely because of their gender, we find it necessary to
remand the matter to the trial court for an evidentiary hearing at which
the court is to require the prosecutor to present gender-neutral reasons
for the strikes. The trial court is then to make a final determination of
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whether the defendant has met his burden of proving purposeful
discrimination. If the trial court finds that the defendant cannot meet
his burden under the applicable law, the defendant‟s conviction and
sentence are affirmed. In the event that the trial court determines that
the prosecutor did exercise the peremptory challenges in a
discriminatory manner in violation of the Equal Protection Clause, the
trial court is to grant the defendant a new trial. Both parties‟ right to
appeal from any adverse decision regarding the J.E.B. claims is
reserved.

Id. at 451.

Here, the transcript does not indicate any off-the-record discussion that may

have concerned the peremptory or Batson challenges. The minutes indicate which

jurors were accepted and excused by the parties, but the transcript jumps from the

point of causal challenges to the Batson reference after peremptory challenges

were made and decided. Obviously, a discussion took place concerning the

peremptory challenges because the minutes indicate which potential jurors were

excused by which party. However, neither the minutes nor the transcript contain

that discussion or indicate whether any basis for each challenge was stated.

Neither the minutes nor the transcript indicates the race of any of the potential

jurors. What does appear in the record indicates the potential for a Batson

violation. Further, the trial court erred when it failed to make the three-step Batson

analysis when the defendant made his challenge and was denied the opportunity to

present a prima facie showing of purposeful discrimination by the state. Unless

the missing portion of the transcript can be furnished and shows the defendant in

fact had that opportunity, this court, like the Givens court, must remand the matter

for an evidentiary hearing to conduct the Batson analysis.

DISPOSITION

Pursuant to the procedure set forth in State v. Clark, 97-1064 (La.App. 3 Cir.

4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental

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filing, 98-1180 (La. 9/25/98), 726 So.2d 2 and State v. Fuslier, 06-1438 (La.App. 3

Cir. 4/4/07), 954 So.2d 866, we pretermit consideration of the remaining

assignments of error and remand this matter to the trial court with instructions to

(1) conduct an evidentiary hearing on the Batson issue within thirty days and (2)

lodge an appellate record, containing the transcript of the hearing, within fifteen

days of the hearing.

REMANDED WITH INSTRUCTIONS.

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