State of Louisiana v. Demarcus W. Law

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1024

STATE OF LOUISIANA

VERSUS

DEMARCUS W. LAW

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 16173
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Van H. Kyzar
District Attorney, Tenth Judicial District Court
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
DeMarcus W. Law

DeMarcus W. Law
Louisiana State Penitentiary
Westyard Hickory 2
Angola, LA 70712
COUNSEL FOR DEFENDANT/APPELLANT:
DeMarcus W. Law

GREMILLION, Judge.

On March 9, 2010, the State charged Defendant, Demarcus W. Law, with

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

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

After pretrial hearings, jury selection began on January 17, 2012. The next

day, the jury began hearing evidence; finally, on January 19, the jury found

Defendant guilty as charged.

The trial court heard and denied Defendant‟s Motion for New Trial on April

18, 2012. On April 25, 2012, the court sentenced Defendant to life imprisonment

without benefit of parole, probation, or suspension of sentence for second degree

murder. For the attempted second degree murder conviction, the court sentenced

him to a consecutive term of fifty years.

Defendant now appeals his convictions, assigning five errors. For the

following reasons, Defendant‟s convictions are affirmed

FACTS:

Dekaria Williams was sitting in the living room of his Natchitoches home.

ShaMichael Berryman and Edward Paige were in the kitchen along with some

quantity of cocaine.

Suddenly, Defendant burst into the house; Williams tried to grab him, but

Defendant shot him in the arm.1 Defendant then went into the kitchen and resumed

shooting. Defendant‟s accomplice, Jody Hamilton, who was at the door, shot

Williams multiple times.2 As Williams was getting up from Hamilton‟s last shot,

1
Any further reference to “the victim” will be a reference to Williams.
2
Hamilton‟s appeal has already been addressed by this court. State v. Hamilton, 12-204
(La.App. 3 Cir. 11/7/12), 103 So.3d 705.

Defendant ran back into the room and shot him in the face. Williams survived his

many wounds; Berryman died.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant attacks the sufficiency of the evidence. A finding of

insufficiency would require reversal of the conviction and obviate the need for

discussion of the other four assignments of error. See State v. Hearold, 603 So.2d

731 (La.1992). Thus, we address it first.

Although Defendant frames his argument as relating to the denial of his

motion for new trial below, during argument at the motion hearing he focused

entirely on a different issue than the one he now raises. At the hearing, he argued

that the evidence was insufficient only as to the murder of Berryman. The basis of

his argument was that the evidence was circumstantial, since Williams heard shots

but did not see the shooting in the kitchen. On appeal, he attacks both convictions,

alleging that Williams was not credible due to inconsistencies between his trial

testimony and his earlier statements to police.

Normally, an attack on sufficiency of evidence would be the subject of a

motion for post-verdict judgment of acquittal, not a motion for new trial.

However, as Defendant‟s brief uses the term “insufficient” and cites the seminal

case in this area of law, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979),

we will proceed with a standard sufficiency analysis.

When the issue of sufficiency of evidence is raised on appeal, the critical

inquiry of the reviewing court is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, rehearing denied, 444 U.S. 890, 100 S.Ct.

2

195; See also State v. Kennerson, 96-1518, (La.App. 3 Cir. 5/7/97), 695 So.2d

1367.

The focus of Defendant‟s credibility attack is that the victim told his father

that there were three or four attackers and he did not know who they were. During

his testimony, the victim acknowledged that at one time he thought there may have

been a third person involved in the offense, possibly a person named Paige, but he

affirmed that he saw Defendant and Hamilton. He had known Defendant since the

latter was a little boy, but they were not close. Regarding the victim‟s failure to

identify the shooters to his father, the victim explained that he did not want his

father to get involved, as he did not “want him [his father] to do nothing to get in

no trouble.”

Defendant argues “it is of great moment that Dekaria Williams was engaged

in the commission of a felony at the time of the shootings.” 3 Also, Defendant

suggests that immediately after the incident, Williams displayed some degree of

indifference in regard to Berryman. It is not clear that the second statement is a

correct assessment. However, even if Defendant‟s factual premises are both

correct, he does not explain how either would have affected the victim‟s

credibility.

As noted in Kennerson, a jury‟s credibility assessments are not to be second-

guessed. Defendant‟s arguments provide no basis for a reassessment of matters

that were put to the jury at trial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant notes that the bench conferences were

not recorded. Thus, he suggests the record is so incomplete that on appeal he

3
Presumably, Defendant is referring to the presence of cocaine on the premises.

3

cannot effectively argue regarding jury composition. He notes that the original

record did not include the jury strike sheets and the minutes do not specify whether

the venire members excused were challenged for cause or peremptorily. Also, the

minutes do not reveal which party challenged each venire member. However, the

only venire member he mentions in this context is Delores Bivens, and both the

minutes and the strike sheets show that she served as a juror.

Regarding unrecorded bench conferences, the supreme court has explained:

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). 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

4

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)).

In the present case, the trial court and not defense counsel had
the duty to insure that the bench conferences involving jury selection
were properly recorded because La.C.Cr.P. art. 795(B)(2) required
that counsel for the state and defense exercise their peremptory
challenges in side bar conferences out of the hearing of jurors, and
further required that the court refrain from attributing the strikes to
either side on the record when excusing the jurors. Counsel therefore
could reasonably assume that the court had taken adequate steps to
preserve the record of the side-bar conferences for appeal just as
counsel could reasonably assume that the evidentiary portions of trial
were also adequately recorded and preserved for review. Counsel
could also reasonably assume 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 in the courts of appeal and this Court, and thus include a list of
challenges for cause and peremptory challenges in addition to a list of
jurors selected to try the case. See La.S.Ct. Rule I, § 6(b); Rule 2-
1.5(3) and (4), Uniform Rules Courts of Appeal.

State v. Pinion, 06-2346, pp. 7-10 (La. 10/26/07), 968 So.2d 131, 134-36

(emphasis added).

5

Defendant gives no indication that he attempted to obtain copies of the jury

strike sheets himself. However, as a result of a motion for supplementation of the

record filed by the State, this court obtained them on December 3, 2012, pursuant

to an order. They show the cause-based strikes, but not which party made them.

Nonetheless, those appear to be the successful cause-based challenges, and the

sheets do show which party made each peremptory strike.4 It stands to reason that

such strikes were made in response to Defendant‟s unsuccessful challenges for

cause. Combining the information in the strike sheets, the minutes, the voir dire

examinations, and the short discussion of excused venire members that occurred at

the venue hearing, Defendant could have constructed any viable arguments

regarding various venire members.

Further, as the State points out, the record contains no objections by

Defendant to any denials of challenges for cause. Louisiana Code of Criminal

Procedure Article 800(A) states, “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.” Further, after denying Defendant‟s

Motion for Change of Venue, the court asked Defendant‟s trial counsel whether

there were “any other objections to the jury selection process.” Counsel replied,

“That‟s it, Your Honor.” However, the Pinion court stated:

Although the court of appeal faulted counsel for not making a
general objection on the record to the composition of the jury, an
objection that counsel had been forced to accept an obnoxious juror as
the result of the trial court‟s erroneous ruling on one or more cause
challenges has not been an aspect of the Court‟s jurisprudence for
preserving error in the denial of cause challenges for over 50 years
since State v. Breedlove, 199 La. 965, 7 So.2d 221 (1942) was

4
The strike sheets show Defendant used all his peremptory challenges.

6

legislatively super[s]eded in the 1966 revisions to the Code of
Criminal Procedure. See State v. Robertson, 92-2660 (La.1/14/94),
630 So.2d 1278, 1279-80. In jury selection, counsel satisfies the
requirements of Louisiana’s contemporaneous objection rule by
stating his grounds for a cause 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.”).

Id. at 136 (emphasis added).

Although Pinion did not discuss La.Code Crim.P. art 800, this passage

negates the application of that article. We note that a recent majority opinion

analyzing the conviction of Defendant‟s accomplice Hamilton was based on a

Pinion issue. After discussing Pinion itself, our colleagues explained:

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 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

7

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, 129 S.Ct. 607, 172 L.Ed.2d 471 (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.

....

8

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.

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

9

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 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.

10

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 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.

State v. Hamilton, 103 So.3d at 710-713 (footnotes omitted).5

In the present case, the record contains detailed voir dire examinations;

unlike Hamilton, the jury strike sheets were also available. Further, Defendant

does not make any specific argument regarding challenges to any particular venire

members. The present case is more akin to Williams, 977 So.2d 160, and Deruise

802 So.2d 1224.

Defendant suggests that his argument regarding change of venue and racial

composition may have been strengthened if the record contained the unrecorded

bench conferences. However, he does not explain how information from the bench

5
In a single-paragraph argument in his Supplemental Reply Brief, Defendant argues that
the present case should be remanded “for the reasons stated in Hamilton.”

11

conference would have enhanced that argument. Further, as will be seen in the

analysis of the next assignment, Pinion does not apply to the deficiencies that may

have occurred in relation to the Motion for Change of Venue. Thus, Defendant has

failed to demonstrate that his case was prejudiced by the failure to record bench

conferences.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

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

in failing to grant his Motion for Change of Venue. The basis of the motion was

an alleged racial imbalance in the composition of the jury. Defendant alleges, as

he did in the trial court, that most of the African-American venire members

examined knew parties to the case or had previously heard about the shooting.

Further, he alleges, “most or all of the Caucasian jury candidates were unaware of

the facts of the case. As a result it was impossible to get a jury consisting of a

cross[-]section of the community in this case.”

Defendant cites no cases on point with his current argument, and our own

research has found none. This particular argument appears to be res nova in the

context of a motion for change of venue; normally, a defendant‟s allegations of

improper racial composition of a jury are raised via Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712 (1986). Batson prohibits using race a basis to exclude

individual jurors. There is no indication that any Batson challenges were raised in

the present case.

Nevertheless, our supreme court and this court have heard cases in which the

racial-composition issue has been raised in the context of motions to quash. For

12

example, the supreme court has reviewed the jurisprudence of a claim of under-

representation of a minority in the venire:

A general jury venire “shall not be set aside for any reason
unless fraud has been practiced, some great wrong committed that
would work irreparable injury to the defendant, or unless persons
were systematically excluded from the venires solely upon the basis of
race.” La.C.Cr.P. art. 419(A). The defendant bears the burden of
proving the grounds for setting aside the venire. State v. Liner, 397
So.2d 506 (La.1981); State v. Manning, 380 So.2d 54 (La.1980). That
burden of proof requires that the defendant show more than the
underrepresentation of blacks on the petit jury venire in order to prove
a systematic exclusion of blacks. Manning, supra; State v. Anderson,
315 So.2d 266 (La.1975). The law requires that there must not be a
systematic exclusion of blacks in the source or sources from which
jury venires are chosen. However, that does not mean that a
defendant is entitled to a petit jury which reflects the population of the
community in every respect. “Defendants are not entitled to a jury of
any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 95
S.Ct. 692, 42 L.Ed.2d 690 (1975); State v. George, 371 So.2d 762
(La.1979). In fact, a jury comprising a complete representation of the
various groups within the community would be virtually impossible to
seat. State v. Cage, 337 So.2d 1123 (La.1976).

State v. Lee, 559 So.2d 1310, 1313-14 (La.1990), cert. denied, 499 U.S. 954, 111

S.Ct. 1431 (1991).

This court addressed a claim similar to that asserted here as follows:

In the case sub judice, it is undisputed that the 200 persons in
the petit jury venire were selected at random by a computer. After
several persons were excused from jury service, the clerk pulled
twelve names at random from the jury box, and continued accordingly
until a twelve-person jury was selected. During voir dire, the State
successfully challenged two jurors for cause but did not peremptorily
challenge any jurors. The defendant successfully challenged two
jurors for cause and peremptorily challenged five jurors. Although
the petit jury venire was approximately 5% to 10% black, no blacks
were selected for voir dire. After an all[-]white jury was selected,
accepted and sworn in, the defendant filed a motion to quash the petit
jury venire on the basis that it did not contain a representative cross-
section of the community. According to the defendant, this forced
him “to go to trial with an all[-]white jury.”

In State v. Kirts, 447 So.2d 1 (La.App. 3rd Cir.1983), writ not
considered, 464 So.2d 306 (La.1985), this court addressed and
rejected the same argument defendant asserts in the case sub judice.

13

In Kirts, defense counsel filed a motion to quash the petit jury venire
on the morning of trial, contending that the petit jury venire was
racially imbalanced. Although no allegation of discrimination was
offered for the racial imbalance, counsel for defendant asserted that a
newly drawn venire, representative of a cross[-]section of the
community, was necessary to assure that defendant would be judged
by a fair and impartial jury. On appeal from the trial court‟s refusal to
grant the motion to quash, we rejected Kirts‟ argument. We held that
the defendant failed to make a prima facie showing of discrimination
where there are no allegations of fraud, and the record is devoid of
any indications of such, or that some great wrong was committed that
would work irreparable injury to him. Id., 447 So.2d at 3.

In the case sub judice, defendant asserts that he was prejudiced
by the petit jury venire. We disagree. At the argument of the motion
to quash, defense counsel stated that he was not alleging fraud, and
offered no evidence of discrimination or irreparable injury attributable
to the petit jury venire. Therefore, based on a careful examination of
the record, we find that the trial court properly denied defendant‟s
motion to quash the petit jury venire, finding that defendant failed to
make a prima facie showing of discrimination. State v. Kirts, supra.
Defendant‟s assignment of error is without merit.

State v. Melancon, 563 So.2d 913, 914 (La.App. 3 Cir. 1990), writ denied, 586

So.2d 527 (La.1991). Thus, jurisprudence establishes that Defendant is not entitled

to the relief he seeks. He does not allege fraud or systematic racial discrimination.

Further, the cases cited show that even if racial imbalance occurred that, without

more, would not entitle him to relief.

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues the “jury instructions

incorrectly included the phrase „or to inflict great bodily harm‟ within the

attempted second degree murder charge.”

Defendant observes that when the trial court advised the jury regarding the

elements of attempted second degree murder, it did not include the fact that

14

specific intent to kill is required to support a conviction for attempted second

degree murder. He cites jurisprudence:

To sustain a conviction for attempted second degree murder, the
state must prove that the defendant: (1) intended to kill the victim; and
(2) committed an overt act tending toward the accomplishment of the
victim's death. La. R.S. 14:27; 14:30.1. Although the statute for the
completed crime of second degree murder allows for a conviction
based on “specific intent to kill or to inflict great bodily harm,” La.
R.S. 14:30.1, attempted second degree murder requires specific intent
to kill. State v. Huizar, 414 So.2d 741 (La.1982).

State v. Bishop, 01-2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437.

The State argues that this court should not review the assignment because

Defendant failed to object to the instruction. As La.Code Crim.P. art. 801(C)

explains, in pertinent part,

A party may not assign as error the giving or failure to give a
jury charge or any portion thereof unless an objection thereto is made
before the jury retires or within such time as the court may reasonably
cure the alleged error. The nature of the objection and grounds
therefor shall be stated at the time of objection.

As the State observes, this court has stated:

In his first assignment of error, Defendant argues the trial court
erroneously charged the jury in its initial charge of law when it
included the element of specific intent to kill or inflict great bodily
harm. Defendant concedes that an objection to the jury charge was
not made. As such, pursuant to La.Code Crim.P. art. 801, the issue
was not preserved for review on appeal. State v. Campbell, 06-286
(La.5/21/08), 983 So.2d 810, cert. denied, ___U.S.___, 129 S.Ct. 607,
172 L.Ed.2d 471 (2008). Accordingly, this assignment of error cannot
be considered.

State v. Jones, 09-1453, p. 7 (La.App. 3 Cir. 8/11/10), 45 So.3d 1136, 1141, writ

denied, 10-504 (La. 2/18/11), 57 So.3d 328, writ denied, 10-2132 (La. 2/18/11), 57

So.3d 330.

In another case, a defendant argued that the trial court had “misstated an

element of the crime.” State v. Brown, 07-388, p. 15 (La.App. 3 Cir. 10/3/07), 966

15

So.2d 1138, 1148, writs denied, 07-2159, 08-326 (La. 3/28/08), 978 So.2d 304,

312. This court stated, “Due to the lack of contemporaneous objection, we are

required to find that the assignment lacks merit. See State v. Howard, 98-64 (La.

4/23/99), 751 So.2d 783, cert. denied, 528 U.S. 974, 120 S.Ct. 420 (1999). See

also State v. Belgard, 410 So.2d 720 (La.1982).” Brown, 966 So.2d 1138 at 1149.

In his reply brief, Defendant argues for an exception to the contemporaneous

objection rule. He relies mainly upon a single supreme court case:

The state points out that defendant did not object to the
erroneous jury instruction concerning definitions of the crimes of first
degree and second degree murder. And they call our attention to a
long line of cases to the effect that erroneous jury instructions are not
errors patent on the face of the record. Absent objections and because
the trial court is denied an opportunity to correct them, such errors are
generally not reviewable. State v. Progue, 350 So.2d 1181 (La.1977);
State v. Roche, 341 So.2d 348 (La.1976); State v. Smith, 339 So.2d
829 (La.1976).

The state‟s argument is of course correct, so far as it goes.
Nonetheless it is within the province of this reviewing court to
entertain complaint of Constitutional violations on appellate review
notwithstanding that consideration of such complaint more often than
not is deferred until filing of a writ of habeas corpus. This Court‟s
usual pretermission of such issues stems from the need of an
evidentiary hearing which can only be had incident to the writ of
habeas corpus. The record before us, however, bears full and
sufficient proof of the error which no posterior hearing could
augment.

State v. Williamson, 389 So.2d 1328, 1331 (La.1980) (footnote omitted).

In Brown, this court discussed Williamson:

In Howard, the supreme court explained:

As an initial matter, defendant‟s trial counsel did
not object to the instruction at trial, and thereby waived
any claim based on it. La.C.Cr.P. art. 841; [State v.]
Taylor, [93-2201 (La.2/28/96) ], 669 So.2d [364] at 367-
69; [State v.] Harris, 383 So.2d [1 (La.1980)] at 10-11.
Although Louisiana courts have sometimes waived the
contemporaneous objection rule, see State v. Williamson,
389 So.2d 1328, 1331 (La.1980) (an error involving “the

16

very definition of the crime of which defendant was in
fact convicted . . . is of such importance and significance
as to violate fundamental requirements of due process”),
this Court has also on two occasions explicitly cautioned
that Williamson did not establish jurisprudentially the
equivalent of a “plain error” rule created by F.R.Crim.P.
52(b). State v. Arvie, 505 So.2d 44, 48 (La.1987); State
v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing)
(Williamson “should not be construed as authorizing
appellate review of every alleged constitutional violation
and erroneous jury instruction urged on appeal without
timely objection at occurrence.”); see also Belgard, 410
So.2d 720, 727 (La.1982) (to preserve issue of erroneous
instruction on elements of attempted second degree
murder, defendant must have objected to the charge at
trial). At any rate, defendant's claim fails on the merits.

Id. at 804.

We note that the First Circuit Court of Appeal has also
discussed the viability of Williamson in detail. The first circuit
observed:

[T]he defendant‟s trial counsel did not object to the
erroneous instructions given by the trial court. Thus, the
defendant ordinarily is precluded from raising such an
alleged error for appellate review. LSA-C.Cr.P. arts. 801
and 841. Nevertheless, exceptions to this rule have been
made in individual cases where there have been
fundamentally erroneous misstatements of the essential
elements of the charged offense. In such cases, the
Louisiana Supreme Court has adopted the view that such
fundamentally incorrect jury instructions so affect the
fairness of the proceedings and the accuracy of the fact-
finding process that due process of law requires reversal,
even in the absence of compliance with legislative
procedural mandates. See State v. Williamson, 389 So.2d
1328, 1331 (La.1980); State v. Johnson, 98-1407, p. 10
(La.App. 1st Cir.4/1/99), 734 So.2d 800, 807, writ
denied, 99-1386 (La.10/1/99), 748 So.2d 439.

Whether an appellate court can continue to make a
State v. Williamson analysis and review such a matter on
direct appeal is now in doubt, in light of the supreme
court‟s statement in State v. Hongo:

[T]he instant error is not structural, it
necessarily is not of such significance as to
violate fundamental requirements of due

17

process, See State v. Williamson, 389 So.2d
1328 (La.1980), and thus a defendant must
make a contemporaneous objection in order
to preserve the error for direct review. State
v. Thomas, 427 So.2d 428, 435 (La.1982)
(on rehearing) (limiting Williamson as it
“should not be construed as authorizing
appellate review of every alleged
constitutional violation and erroneous jury
instruction urged first on appeal without
timely objection.”)

State v. Hongo, 706 So.2d at 422, n. 3. Nevertheless, we
find it unnecessary to resolve the issue in the case now
before the court, having found reversible error on another
basis. Consequently, we pretermit this assignment of
error.

State v. Woods, 00-2147, pp. 18-19 (La.App. 1 Cir. 5/11/01), 787
So.2d 1083, 1096-97, writ denied, 01-2389 (La.6/14/02), 817 So.2d
1153.

In State v. Falcon, 06-798 (La.App. 5 Cir. 3/13/07), 956 So.2d
650, the fifth circuit cited both Hongo and Williamson, and then
addressed a faulty jury instruction despite the absence of a
contemporaneous objection. However, the instruction in Falcon was
easily disposed of as harmless error. While the possible error here is
potentially more complex, we find that the failure to timely object did
not allow the trial court to correct the obvious error and that this
assignment of error lacks merit.

Brown, 966 So.2d at 1149-50. Also, we note that neither Jones nor Campbell, a

supreme court case cited in Jones, discussed Williamson. Both elected to enforce

La.Code Crim.P. art. 801(C).

Likewise, we elect to enforce La.Code Crim.P. art. 801(C). We find that the

very reason for the mandate of a contemporaneous objection is to allow the trial

court to correct what the Falcon court properly labeled an “obvious error”. The

lack of such an objection in this record renders this assignment meritless.

18

ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth and final assignment of error, Defendant argues that the trial

court erred by allowing two pistols to be introduced into evidence. He contends

that the State failed to show that there was any connection between him and the

pistols.

We agree with the State‟s position that Defendant failed to object to the

introduction of these firearms at trial. Thus, he has failed to preserve the issue for

appellate review pursuant to the “contemporaneous objection rule” codified by

La.Code Crim.P. art. 841. See State v. Knight, 09-359, p. 26 (La.App. 5 Cir.

2/9/10), 34 So.3d 307, writ denied, 10-2444 (La. 10/21/11), 73 So.3d 376. Thus,

the assignment was not preserved for review.

DECREE

Defendant‟s convictions and sentences are affirmed.

AFFIRMED.

19