State of Louisiana v. Anthony Jack -Aka- Anthony Kwonskiee Jack

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-856

STATE OF LOUISIANA

VERSUS

ANTHONY JACK
AKA ANTHONY KWONSKIEE JACK

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 98288-F
HONORABLE CHUCK R. WEST, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

AFFIRMED.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Anthony Jack

Trent Brignac
District Attorney
Julhelene E. Jackson
Assistant District Attorney
Post Office Drawer 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

After a deputy was dispatched to a residence, the State charged the

defendant with one count of resisting an officer with force or violence and one

count of aggravated battery. Following jury selection, one of the jurors notified the

court that she was related to the defendant’s grandmother, and the trial court

excused the juror and replaced her with an alternate. The defendant moved for a

mistrial, which was denied, and the jury ultimately convicted the defendant as

charged. The defendant now appeals. For the following reasons, we affirm.

Factual and Procedural Background

After being dispatched to a residence in reference to an “Unauthorized Use

complaint,” Deputy Joshua Uhlman of the Evangeline Parish Sheriff’s Office

included, in pertinent part, the following narrative in his complaint report:

Upon arrival I spoke to Mr. Julius Thomas who stated that his
girlfriend’s grandson Anthony Jack took his car without permission
but pulled back up in the car before my arrival. . . .

I then turned to Anthony, who was standing on the side of the
yard and advised him to come see I need to talk to him. He then put
up his hands in a fighting position and kept saying “I will whip your
ass”. I advised him to stand down and to place his hands behind his
back but he took off running. I then gave chase on foot and radioed
into dispatch to send another unit. While running, Anthony picked up
a glass bottle that was lying in a yard and threw it towards me. I was
able to move out the way of the bottle. The foot chase then continued
into a yard . . . and that is when Anthony picked up a long board and
swung it towards me hitting me in my left side of my chest with it
causing me to fall backwards. Anthony then came towards me with
the board while I was on the ground and attempted to hit me in my
head with the board. I then drew my service weapon and aimed it at
Anthony and gave the verbal command to drop the board. Anthony
complied with the order and I was able to get back up and I re
holstered my service weapon and pulled out my impact baton and
gave the verbal command to stop resisting and get on the ground.
Anthony refused and took a swing at me with a closed fist. He missed
then stated “I will shoot you” and picked up his right hand and made a
gun gesture towards me. I then swung my impact baton striking him .
. . and he took off running again. I then gave chase again and was

able to catch up to him. Anthony then stopped and attempted to swing
at me with a closed fist again but missed. I then gave the command to
stop resisting but he refused to comply. I then struck Anthony . . . and
that is when [Deputy] Kent Vidrine arrived to assist. Anthony was
still resisting and [Deputy] Vidrine administered a short 2 second
burst of Pepper Spray. At this point [Deputy] Joshua Estes also
arrived and Anthony was taken into custody.

Anthony Jack was transported to the Evangeline Parish Jail by
[Deputy] Estes. While in transport to the jail, Anthony spit on
[Deputy] Estes in the patrol unit and started to fight with [Deputy]
Estes in the patrol unit.

On March 10, 2014, the State filed a bill of information by which the

defendant, Anthony Jack, was charged with two counts of resisting an officer with

force or violence; two counts of aggravated battery; and one count of aggravated

assault. Subsequently, the bill of information was amended three times.1 The third

bill of information, upon which the State proceeded to trial, charged the defendant

with one count of resisting an officer with force or violence, a violation of La.R.S.

14:108.2(A)(3), and one count of aggravated battery, a violation of La.R.S. 14:34.

The defendant pled not guilty, and a jury trial began on April 3, 2017.

On April 4, 2017, on day two of the trial, Juror #1, Elizabeth Bellard,

approached the bailiff about some concerns she had. Referring to the defendant’s

grandmother, whom she said she had observed in the courtroom, Ms. Bellard

notified the trial court: “I know the lady . . . [my brother, my sister, and I] call her

Aunt Annie.” When asked whether she knew the defendant and whether she knew

if she was related to the defendant, Ms. Bellard answered, “I don’t know him” and

“I don’t [know] but if that’s his grandmother then we[’re] related.” The trial court

followed up by asking Ms. Bellard whether that would affect her ability to be fair
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The amended bill of information charged the defendant with two counts of resisting an
officer with force or violence and one count of battery of a police officer.

The second amended bill of information charged the defendant with two counts of
resisting an officer with force or violence and one count of aggravated battery.

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and impartial to which she responded, “Yes it will.” The trial court instructed Ms.

Bellard not to speak to the other jurors while the court and the attorneys discussed

the matter.

Subsequently, Juror #5, Rebecca Fontenot, was interviewed by the court and

explained that Ms. Bellard is her aunt. Ms. Fontenot indicated that Ms. Bellard

had just told her about Ms. Bellard’s relationship to the defendant’s grandmother.

When asked whether she was related to the defendant’s grandmother or the

defendant, Ms. Fontenot responded: “I’ve never seen her or him before.” The trial

court asked Ms. Fontenot whether this affected her ability to be fair and impartial,

and Ms. Fontenot answered, “no.” Additionally, the trial court asked Ms. Fontenot

if she could judge the case strictly based on the evidence and if she would be fair to

both sides, to which she responded, “Yeah.”

Following Ms. Bellard’s revelation, defense counsel stated:

I would have picked my jury differently if I would have known she
would have been challenged for cause. Okay it changed the way I
used my back strikes . . . changed the makeup of the jury. I tried to
make the makeup as close to the actual community[.]

....

[Mr. Jack] deserves [a] jury of his peers[.]

In particular, defense counsel argued that to remove Ms. Bellard from the jury and

replace her with the alternate would change the racial composition of the jury.

However, citing Ms. Bellard’s testimony that she could not be fair and impartial,

the trial court notified the parties of its decision to excuse Ms. Bellard from the

jury and replace her with the alternate juror. Defense counsel objected, asserting:

“[W]e feel that we have suffered substantial prejudice to our case and the jury

panel is no longer a jury panel we freely choose chose [sic].”

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Thereafter, defense counsel moved for a mistrial, arguing:

[S]he tainted the jury if she lied in Voir Dire and I picked a six man
jury based on her lies then it taints my own jury pool and I should get
to pick a new jury that’s more fair to my client and more
representative to a jury of his peers.

The trial court denied the defendant’s motion, stating:

I don’t believe that Ms. Bellard made an intentionally false statement
on Voir Dire because when she came in here she admitted that she just
found out that she maybe [sic] related. Number two I don’t believe
that it would prevent a fair trial. Everybody picked the jury there was
one removed and had Ms. Bellard stated that last time it may or may
not have affected how you . . . chose your jury but the fact is I don’t
know that it would of [sic] affected anything. So I don’t believe that
it prevents a fair trial . . . the jury is still made up of a cross section of
the community female, male, white, and black and I don’t believe the
mere argument of race at this point shows any actual racial issues that
have come up. . . . so motion denied.

Defense counsel asked the trial court to instruct the remaining jurors to disregard

any conversations and interactions that they might have had with Ms. Bellard, but

the trial court denied this request too. On April 4, 2017, the jury convicted the

defendant as charged. Defense counsel moved for a judgment of acquittal, which

was denied by the trial court.

On April 21, 2017, after the defendant was convicted of resisting an officer

and aggravated battery but before the sentencing hearing on those charges, the

State filed another bill of information under the same docket number. The bill of

information charged the defendant with battery of a police officer, a violation of

La.R.S. 14:34.2, and aggravated assault, a violation of La.R.S. 14:37. According

to the minutes, the defendant ultimately pled guilty to these charges and was

sentenced to serve six months on each charge, with the sentences to run

concurrently. Additionally, a fine, court costs, and other fees were imposed.

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On June 22, 2017, the trial court sentenced the defendant to three years at

hard labor and a fine of $1500.00 for resisting an officer with force or violence and

to seven years at hard labor and a fine of $2500.00 for aggravated battery, with the

sentences to run concurrently. Thereafter, the defendant filed a “Motion of

Amendment of Sentence”; a “Motion and Order to Reconsider Sentence”; and a

“Motion To Correct A[n] Illegal Sentence.” The trial court denied the motions.

The defendant now appeals, asserting the following assignment of error: “The trial

court erred in failing to grant Anthony Jack’s Motion for Mistrial.”

Discussion

Errors Patent

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

errors patent on the face of the record. An error patent is one “that is discoverable

by a mere inspection of the pleadings and proceedings and without inspection of

the evidence.” La.Code Crim.P. art. 920(2). Upon review, we find that there are

no errors patent.

However, we note that there is a procedural issue. As discussed above, after

the defendant was convicted of resisting an officer and aggravated battery, but

before the sentencing hearing on those charges, the State filed another bill of

information under the same docket number. That bill of information charged the

defendant with battery of a police officer and aggravated assault, and the defendant

pled guilty to both charges. The defendant’s convictions for battery of a police

officer and aggravated assault are misdemeanors,2 and the proper appellate review

for these offenses is by writ of review, not an appeal. La.Code Crim.P. art. 912.1.

2
In pertinent part, La.R.S. 14:2(A) provides:

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The defendant has not challenged his misdemeanor convictions. Rather, his

only assignment of error concerns the denial of his motion for mistrial regarding

his convictions for resisting an officer with force or violence and aggravated

battery. Therefore, we hereby sever the misdemeanors from this appeal and

instruct the defendant that if he chooses to seek review of the misdemeanors, he

must file an application seeking supervisory review with this court within thirty

days of the court’s ruling on appeal. See State v. LeBlanc, 08-1533 (La.App. 3 Cir.

6/10/09), 12 So.3d 1125, rev’d on other grounds, 09-1355 (La. 7/6/10), 41 So.3d

1168; State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ

denied, 05-0871 (La. 12/12/05), 917 So.2d 1084.

Motion for Mistrial

As discussed above, in briefing to this court, the defendant argues that the

trial court erred in failing to grant his motion for mistrial, which was “based on

false statements given in voir dire.” In briefing to this court, the defendant

reiterates the arguments that defense counsel made to the trial court. In particular,

the defendant asserts that defense counsel would have picked the jury differently if

A. In this Code the terms enumerated shall have the designated meanings:

....

(4) “Felony” is any crime for which an offender may be sentenced to death
or imprisonment at hard labor.

....

(6) “Misdemeanor” is any crime other than a felony.

The defendant pled guilty to battery of a police officer, a violation of La.R.S. 14:34.2,
which provides, in pertinent part: “Whoever commits the crime of battery of a police officer
shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor
more than six months without benefit of suspension of sentence.” La.R.S. 14:34.2(B)(1). The
defendant also pled guilty to aggravated assault, a violation of La.R.S. 14:37, which provides, in
pertinent part: “Whoever commits an aggravated assault shall be fined not more than one
thousand dollars or imprisoned for not more than six months, or both.” La.R.S. 14:37(B).

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the defense had known that Ms. Bellard could be challenged for cause. The

defendant also re-urges that excusing Ms. Bellard and replacing her with the

alternate juror changed the racial makeup of the jury. Citing State v. Carmouche,

01-0405 (La. 5/14/02), 872 So.2d 1020, the defendant argues that the trial court

erred in not ordering a new trial or dismissing the jury panel when Ms. Bellard was

excused. Further, and citing State v. Marlowe, 10-1116 (La.App. 4 Cir. 12/22/11),

81 So.3d 944, writ denied, 12-0231 (La. 5/18/12), 89 So.3d 1191, the defendant

states that the trial court should have questioned all of the jurors to see if Ms.

Bellard had spoken with them in order to determine “whether the jury was tainted.”

Louisiana Code of Criminal Procedure Article 775 is titled “Mistrial;

grounds for” and provides, in pertinent part:

A mistrial may be ordered, and in a jury case the jury
dismissed, when:

....

(6) False statements of a juror on voir dire prevent a fair trial.

Upon motion of a defendant, a mistrial shall be ordered, and in
a jury case the jury dismissed, when prejudicial conduct in or outside
the courtroom makes it impossible for the defendant to obtain a fair
trial, or when authorized by Article 770 or 771.

The trial court has discretion in deciding whether to grant a mistrial when a juror

has made a false statement during voir dire, and the trial court’s ruling should not

be disturbed on appeal absent a clear showing of abuse of discretion. State v.

Short, 94-0233 (La.App. 4 Cir. 5/16/95), 655 So.2d 790, writ denied, 95-1520 (La.

11/17/95), 663 So.2d 719. In discussing La.Code Crim.P. art. 775, the fifth circuit

has explained:

A mistrial is a drastic remedy and, except in instances in which
a mistrial is mandatory, is warranted only when trial error results in
substantial prejudice to defendant, depriving him of a reasonable

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expectation of a fair trial. State v. Davis, 08-165, p. 17 (La.App. 5
Cir. 7/29/08), 993 So.2d 295, 305, writs denied, 08-2188
[(]La.5/1/09), 6 So.3d 810, and 08-2200 (La.5/1/09), 6 So.3d 811.
Whether a mistrial should be granted is within the sound discretion of
the trial court and the denial of a motion for mistrial will not be
disturbed absent an abuse of discretion. Id.

....

The trial court has discretion to use the services of an alternate juror,
rather than to grant a mistrial, upon a proper finding that this is the
best course of action. State v. Tatum, 09-1004, p. 17 (La.App. 5 Cir.
5/25/10), 40 So.3d 1082, 1092.

State v. Dorsey, 11-745, 11-955, pp. 9-10 (La.App. 5 Cir. 4/24/12), 94 So.3d 49, 56

(affirming the trial court’s decision to deny the defendant’s motion for mistrial,

dismiss a juror, and replace that juror with an alternate after the juror notified the

trial court that he had told other jurors that he knew one of the victims), writ

denied, 12-0998 (La. 10/12/12), 99 So.3d 39. With this standard in mind, we turn

to the facts of the case.

Regarding the defendant’s assertion that false statements were made during

voir dire, Ms. Bellard explained to the trial court that she did not realize that she

was related to the defendant’s grandmother until the second day of trial after seeing

the defendant’s grandmother in the courtroom. Upon this realization, Ms. Bellard

notified the trial court about the relationship and told the trial court that this would

affect her fairness and impartiality. As discussed above, in denying the

defendant’s motion for mistrial, the trial court stated: “I don’t believe that Ms.

Bellard made an intentionally false statement on Voir Dire because when she came

in here she admitted that she just found out that she maybe [sic] related.”

Accordingly, we find no abuse of the trial court’s discretion in its denial of the

motion for mistrial based on allegedly false statements made during voir dire.

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Next, we consider whether the trial court abused its discretion in concluding

that the defendant had not suffered substantial prejudice such that he could not

receive a fair trial. We first address the defendant’s assertions that defense counsel

would have picked the jury differently if the defense had known that Ms. Bellard

could be challenged for cause and that excusing Ms. Bellard and replacing her with

the alternate juror changed the racial makeup of the jury. As discussed above, the

trial court denied the defendant’s motion for mistrial and stated: “Everybody

picked the jury . . . the jury is still made up of a cross section of the community

female, male, white, and black and I don’t believe the mere argument of race at

this point shows any actual racial issues that have come up.” We find no abuse of

the trial court’s discretion in its rejection of the motion for mistrial in this regard.

We next address the defendant’s argument that the trial court erred in failing

to order a new trial, dismiss the jury panel, or question the jurors based on

comments that Ms. Bellard might have made to the other jurors. As discussed

above, “[a] mistrial is a drastic remedy and, except in instances in which a mistrial

is mandatory, is warranted only when trial error results in substantial prejudice to

defendant, depriving him of a reasonable expectation of a fair trial.” Dorsey, 94

So.3d at 56. For example, in Carmouche, 872 So.2d 1020, which was cited by the

defendant in briefing to this court, a prospective juror commented about a sanity

report pertaining to the defendant and of which she had knowledge, and other

prospective jurors overheard her comment. The trial court denied the defendant’s

motion for mistrial. Id. On appeal, the supreme court concluded that the trial court

had not abused its discretion in finding that there was no prejudice. Id. In the

other case cited by the defendant, Marlowe, 81 So.3d 944, a deputy sheriff

overheard one of the jurors state: “I don’t care if they keep me here for three days,

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I’m going to vote guilty.” Subsequently, defense counsel requested individual voir

dire regarding the juror’s comment, and each juror was questioned by the State and

defense counsel to determine if the jury panel had been tainted. Id.

Here, we find no abuse of the trial court’s discretion in denying the

defendant’s motion for mistrial. Initially, we note that no grounds for mistrial

under La.Code Crim.P. arts. 770 and 771 are presented here. As discussed above,

after Ms. Fontenot, Ms. Bellard’s niece, notified the trial court that she had spoken

with Ms. Bellard about Ms. Bellard’s relationship to the defendant’s grandmother,

the trial court interviewed Ms. Fontenot. Ms. Fontenot stated that she had never

seen the defendant or his grandmother before; that her ability to be fair and

impartial was not affected; that she could judge the case strictly based on the

evidence; and that she would be fair to both sides. Aside from Ms. Fontenot, the

record does not indicate that the other remaining jurors were related to the

defendant or spoke to Ms. Bellard about her relationship to the defendant’s

grandmother. Even if the other jurors had spoken to Ms. Bellard and had

knowledge of her relationship to the defendant, such knowledge is unlikely to have

affected the jurors’ ability to be fair and impartial or to have otherwise tainted the

jury or prejudiced the defendant. See Dorsey, 94 So.3d 49. See also State v.

Cushenberry, 407 So.2d 700, 702 (La.1981) (wherein the supreme court concluded

that the prospective “juror’s comment was less than overwhelming and would not

have influenced any other juror even if it was heard” after the prospective juror

stated during voir dire that she had been a robbery victim and that the defendant

resembled the person that had robbed her).

Moreover, the trial court corrected any perceived prejudice by dismissing

Ms. Bellard and replacing her with the alternate. See Dorsey, 94 So.3d 49.

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Regarding the defendant’s assertion that the trial court should have questioned the

remaining jurors to determine if Ms. Bellard had spoken with any of them, we note

that in this case, unlike in Marlowe, 81 So.3d 944, the record does not indicate that

the defendant requested individual voir dire to ascertain whether the jurors spoke

to Ms. Bellard.

Based on the foregoing, we find no abuse of the trial court’s discretion in its

conclusion that any comments Ms. Bellard might have made to the other jurors

about being related to the defendant’s grandmother did not cause the defendant to

suffer substantial prejudice such that he could not receive a fair trial. See Dorsey,

94 So.3d 49. We also find no merit in the defendant’s argument that the trial court

should have interviewed each of the remaining jurors. See Marlowe, 81 So.3d 944.

DECREE

For the foregoing reasons, we affirm the convictions and sentences of the

defendant, Anthony Jack, for resisting an officer with force or violence and

aggravated battery. The defendant’s misdemeanor convictions for battery of a

police officer and aggravated assault are severed from the appeal. The defendant is

instructed that he has thirty days from this court’s ruling on appeal to file an

application seeking supervisory review of the misdemeanors, if he so desires.

AFFIRMED.

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