State of Louisiana v. David Billy Parker, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-217

STATE OF LOUISIANA

VERSUS

DAVID BILLY PARKER, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 4088-16
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Candyce G. Perret, Judges.

CONVICTIONS REVERSED AND CASE
REMANDED FOR A NEW TRIAL.

John F. DeRosier
District Attorney – 14th Judicial District
Elizabeth B. Hollins
Jacob L. Johnson
Ross Murray
Carla Sue Sigler
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mary Constance Hanes
Louisiana Appellant Project
Post Office Box 4015
New Orleans, LA 70178-4015
Telephone: (504) 866-6652
COUNSEL FOR:
Defendant/Appellant - David Billy Parker, Jr.

PERRET, Judge.

David Billy Parker, Jr. (“Defendant”) appeals his jury convictions for two

counts of armed robbery with a firearm and two counts of possession of a firearm

by a convicted felon. Defendant argues three assignments of error: (1) his

constitutional rights were violated when the trial court refused to allow the parties

any peremptory challenges in selecting the two alternate jurors; (2) his

constitutional rights were violated when the trial court removed a juror and

replaced her with an alternate; and (3) his sentences for armed robbery are

excessive under the circumstances. Because we find merit to Defendant’s second

assignment of error arguing that the trial court erred by removing a seated juror

and replacing her with an alternate over his objection, we reverse Defendant’s

convictions and remand for a new trial. We pretermit consideration of the other

assignments of error.

DISCUSSION

We find the facts regarding the underlying offenses irrelevant to the

discussion of whether the trial court committed legal error when it removed a juror

and replaced her with an alternate over Defendant’s objection.

Jury selection in this criminal proceeding occurred on April 3 and 4, 2017.

On April 5, 2017, before any witnesses were sworn, the State informed the court

that Defendant had telephoned his cousin and his aunt to find out whether a

particular juror, Sharon Antoine, was related to him. The State played a recording

of Defendant in open court. While there is no dispute that the contact took place,

defense counsel suggested that Defendant’s motives were benign. Juror Antoine

was questioned in open court; and she advised that she had not been contacted by

anyone about the case. Despite the lack of contact, the State argued for Antoine’s

removal, stating that La.Code Crim.P. art. 796 required her removal before the

swearing of the first witness. At that time, the district court elected to remove

Antoine and replace her with the first alternate.

During the hearing on the motion for a new trial, Defendant argued that

Antoine’s situation had not met the criteria for removal under Article 796.

Specifically, he argued that the court had not made a finding of any improper

contact with Antoine, but instead removed her due to a concern that Defendant or

his family would renew efforts to contact Antoine.

In State v. Tennors, 05-538, pp. 5-16 (La.App. 3 Cir. 2/15/06), 923 So.2d

823, 827-33, this court extensively discussed juror disqualification:

The trial court, over defense objection, replaced a juror with an
alternate juror, finding the juror “unable to perform” his duties due to
a prior commitment to officiate at an athletic event. When the court
first indicated an intent to accommodate Dr. Howell during voir dire,
defense counsel expressed concern that the trial might extend later
than expected, but he did not formally object to the court’s stated
intent.

The impropriety of releasing a juror to allow him to fulfill a
personal obligation appears to be one of first impression by this court
in the context presented. In State v. Brossette, 93-1036 (La.App. 3
Cir.), 634 So.2d 1309, writ denied, 94-0802 (La.6/24/94), 640 So.2d
1344, this court found no error when the trial judge excused a juror,
over defense objection, who brought to his attention an employment
relation with a witness who testified by stipulation. The defendant
contended that it was improper to excuse a juror who was not
incompetent. Even though the juror testified that she would not be
swayed to change her vote as a result of her supervisor’s testimony
being offered by stipulation, this court found that the judge could have
reasonably concluded that the juror could be affected or biased by the
employment relationship. State v. Brossette, 634 So.2d 1309.

Also, in State ex rel. Skipper v. State, 03-842, 03-844, 03-845
(La.App. 3 Cir. 12/10/03), 861 So.2d 796, writ denied, 03-3083 (La.
12/12/03), 860 So.2d 1164, writ denied, 04-03 (La 4/23/04), 870
So.2d 298, this court found no error when the trial court replaced a
juror with an alternate juror after finding out that the juror had an out-
of-state rap sheet and time did not allow the court to ascertain
immediately if the conviction shown was a felony.

The Louisiana Supreme Court in State v. White, 244 La. 585,
153 So.2d 401 (1963), found the facts to be that a juror, on the fifth
day of a six-day trial, advised the trial judge that he thought he was
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disqualified. In the presence of counsel for both the state and defense,
but outside the presence of the defendant, the judge, without asking
the juror specifics of why he felt he had a conflict of interest, inquired
whether the juror could decide the case on the evidence and disregard
the alleged conflict. The juror responded: “It would tax me to do so.”
Thereafter, the judge released the juror and replaced him with an
alternate.

The supreme court, in reversing the trial court, first discussed
the evolution of the law allowing the use of alternate jurors. The court
then held in White, 153 So.2d at 408:

It would appear to us that under the clear language of the
pertinent provisions of R.S. 15:362, reflected by the
underscored portion hereof appearing in Footnote No. 6, the
judge is without authority to excuse a juror and substitute the
alternate unless and until a juror dies, is too ill to serve, or there
is a [l]egal cause that renders him incompetent to serve.

Interpretation of the present law found in La.Code Crim.P. art.
789 remains consistent with State v. Square, 257 La. 743, 244 So.2d
200, 237 (1971), vacated and remanded on other grounds, 408 U.S.
938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), wherein the court held,
“[w]e are of the opinion that under Article 789 the jurors once
selected are expected to serve, save in cases of death, illness or other
cause which renders the juror unfit or disqualified to perform his
duty.”

The issue of the removal of a juror and the substitution of an
alternate juror has almost exclusively been reviewed in the context of
a juror who has become disqualified after being empaneled. In State
v. Rounsavall, 337 So.2d 190 (La.1976) and State v. Buggage, 351
So.2d 95 (La.1977), both of which were later expressly overruled in
State v. Marshall, 410 So.2d 1116 (La.1982), the Louisiana Supreme
Court refused to countenance replacing jurors who became
disqualified or unable to serve after having been sworn with alternate
jurors, holding that once sworn, jurors could be discharged only if
found to be incompetent. In Rounsavall, 337 So.2d at 191, a juror
failed to disclose during voir dire his acquaintance with a member of
the district attorney’s office, and in Buggage, 351 So.2d 95, a juror,
after being sworn in a capital murder case, made known that she had
misunderstood questions in voir dire and was opposed to the death
penalty.

In Marshall, 410 So.2d at 1118, the Louisiana Supreme Court
held that the trial court correctly discharged a juror who, after being
sworn, was determined to be “not impartial,” as “unable to perform or
disqualified from performing” her duty under La.Code Crim.P. art.
789. Both State v. Rounsavall, 337 So.2d 190 and State v. Buggage,
351 So.2d 95, which had held that jurors, once sworn, could not be
discharged unless they became incompetent to serve were overruled.
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In State v. Cass, 356 So.2d 396, 397 (La.1977), the supreme
court reversed a conviction, finding the judge erred in replacing a
juror whom he thought to be sleeping. The court stated:

Defendant contends in these assignments of error that the
trial judge erred in removing a juror during trial and
substituting an alternate juror in his place when the juror
allegedly fell asleep during the victim's testimony on cross-
examination. Defendant argues that the conduct of the juror did
not render him unfit or disqualified to perform his duties and,
hence, he was improperly removed. In explaining his reasons
for removing the juror, the trial judge stated that when he
observed the juror sleeping he became concerned that he was
ill. After the juror was removed and replaced, defendant moved
for a mistrial, which the trial judge denied.

The record indicates that shortly before the end of the
first day of trial the judge apparently noticed that one of the
jurors appeared to be asleep. The judge indicated that the
juror’s head was hanging low, often-times bobbing or nodding,
and his eyes were closed. After two to four minutes of such
observation the judge summarily ordered the removal of the
juror. Before leaving the courtroom the juror twice stated aloud
that he had not been asleep.

....

In two recent decisions rendered by this Court we have
had the opportunity to discuss the serious nature of a trial
court’s removal of a juror and the circumstances under which
such a procedure would be deemed proper. In State v.
Buggage, 351 So.2d 95, 96, decision rendered October 10, 1977
this Court, per the Chief Justice, cited the following language
authored by Justice Summers in State v. Rounsavall, 337 So.2d
190 (La.1976) relative to the replacing of a regular juror with an
alternate:

“Alternate jurors are drawn and serve to replace
jurors who become unable to perform or who are
disqualified from performing their duties prior to the time
the jury retires to consider its verdict. La.Code Crim.Pro.
art. 789. And, while the court may disqualify a
prospective juror from service in a particular case when
for any reason doubt exists as to the competency of the
prospective juror to serve in the case, ibid. arts. 783, 787,
once the trial has begun by the swearing of the first juror
selected, ibid. art. 761, and the jurors are accepted and
sworn, they may not be removed unless they are
‘incompetent to serve’, ibid. art. 796.[”]

4

“Once a jury has been selected and sworn the accused
has a right to have his fate decided by the particular
jurors selected to try him. The phrase ‘incompetent to
serve’ embodied in Article 796 refers to death, illness or
any other cause which renders a juror unfit or
disqualified to perform his duty as prescribed. The right
of the accused to have a juror selected by him try the case
is a substantial one, the improper deprivation of which is
prejudicial. The doctrine of harmless error is, therefore,
inapplicable. State v. White, 244 La. 585, 153 So.2d 401
(1963); State v. Willie, 130 La. 454, 58 So. 147 (1912).”

Consistent with State v. Buggage, supra, and State v.
Rounsavall, supra, and applying C.Cr.P. Art. 789, we determine
that even if the juror in question did briefly doze off, such is not
per se proof of inability to perform, or any character of
disqualification. Thus, there would be no legal cause for
removing him. Had the juror been shown to have been sleeping
through a substantial part of the trial or had he been unable to
stay awake despite warnings or efforts to arouse him, and had
Defendant and the State been afforded an opportunity to
explore on the record the Juror’s inability to perform on this
account, we would be presented with a substantially different
question for review.

Under the circumstance present here, the assignment has
merit. We hold that the trial judge erred in summarily
removing the juror under the circumstances and in the manner
which he did, and in refusing Defendant’s motion for a mistrial.
For this reason, we reverse Defendant’s conviction and
sentence and remand the case for a new trial.

Cass, 356 So.2d at 397-98 (footnote omitted) (emphasis and
alterations in original).

Cass, 356 So.2d 396, which predated Marshall, 410 So.2d
1116, and cited with approval language found in Rounsavall, 337
So.2d 190, and Buggage, 351 So.2d 95, both of which were expressly
overruled by Marshall, was not overruled and continues to be cited as
authority. In State v. Clay, 441 So.2d 1227, 1230 (La.App. 1
Cir.1983), writ denied, 446 So.2d 1213 (La.1984) (citing Cass, 356
So.2d 396), the court stated:

La.Code Crim.P. art. 789 provides for the replacement of
a juror with an alternate juror in the event the former becomes
unable to serve or is disqualified. Once a jury has been selected
and sworn the defendant has a right to have his case decided by
the particular jurors selected to serve.

See also State v. Williams, 500 So.2d 811 (La.App. 1 Cir. 1986).

5

....

The most recent decision of the Louisiana Supreme Court is
State v. Fuller, 454 So.2d 119, (La.1984). The trial judge disqualified
a juror after determining that the juror had violated the sequestration
order by going to the bar in the hotel in which the jury was housed. In
determining the correctness of the trial court action, the supreme court
stated:

The next morning the judge conducted a hearing and
conscientiously examined that juror and the other jurors to
determine the extent of the transgression. The juror claimed
that the only person with whom he conversed was the barmaid.
The other jurors testified that they had not discussed the case
with anyone.

Although the juror denied discussing the case or the fact
that he was a juror with the barmaid, there is no doubt that the
juror willfully disobeyed the sequestration order and was not
“secluded from outside communication.” Confronted with this
situation in a capital case (where sequestration is mandatory),
the judge chose to replace the transgressing juror with an
alternate. Defense counsel objected to this action and moved
for a mistrial based on the juror’s misconduct.

The trial judge was called upon to decide whether the
juror had become disqualified to perform his duties and, if so,
what action to take. La.C.Cr.P. Art. 789. The judge acted
properly in holding an evidentiary hearing, with all parties
present, to determine the existence of a violation of his order,
the nature and extent of the violation, and the appropriate
solution to the problem.

The juror assured the judge that he did not, while in the
bar, compromise his position by discussing the case or his
status as a juror. Although a judge under some circumstances
may have been satisfied that such a showing overcame the
presumption of prejudice flowing from a sequestration
violation, the judge in this instance determined that the essential
fairness of the proceeding could best be preserved by replacing
the juror with the properly qualified and duly selected alternate.
Moreover, the judge’s decision to replace the juror, rather than
to declare a mistrial, was largely justified by the facts that the
violation had occurred during the evening recess and that the
other jurors had denied that they were exposed to any outside
influence possibly resulting from the violation.

The trial court has discretion to utilize the service of an
alternate juror, rather than to grant a mistrial, upon a proper
finding that this is the best course of action. Thus, when it was
shown that a juror was unable to continue to serve because of
6

the physical disability that was involved in State v. Spencer,
446 So.2d 1197 (La.1984), or was “disqualified” from further
service because of the blatant display of prejudices and
partiality that was involved in State v. Marshall, 410 So.2d
1116 (La.1982), the replacement of the juror with the alternate
has been approved by this court.

The trial judge in this case acted in a fair and deliberative
manner when he decided that the juror’s willful violation of the
order by going to the motel bar was a sufficient ground to
disqualify him from further service. The judge also considered
alternative courses of action. Replacing the juror with the
alternate under the overall circumstances was a proper exercise
of the trial judge’s discretion.

Id. at 123.

In State v. Mohamed, 96-845 (La.App. 5 Cir. 9/17/97), 700
So.2d 881, the court recited a history of cases in which employment
problems, although different from the case presented herein, justified
replacement of a juror. In that case, a juror expressed his
dissatisfaction with having to miss work to serve as a juror, but after a
challenge for cause was denied with the trial judge finding that an
economic situation “was not sufficient grounds for cause,” he was
selected to serve. After the juror failed to remain with other jurors
during a lunch recess, and continued to complain that the trial was
costing him too much money, the trial judge ordered he be replaced,
but also ordered that he must remain for the entirety of the trial. In
affirming, the court noted:

Although the Louisiana Code of Criminal Procedure does
not provide a definition of “incompetent,” the Louisiana
Supreme Court interpreted the meaning of “incompetent” in
State v. Cass, 356 So.2d 396, 397-398, (La.1977). In Cass, a
juror allegedly fell asleep during testimony and the trial judge
summarily ordered the removal of the juror. Prior to leaving
the courtroom, the juror twice stated aloud that he had not been
sleeping. Holding that the trial judge erred in summarily
removing the juror, the Louisiana Supreme Court stated that
“incompetent,” as used in LSA-C.Cr.P. art. 796, refers to
“death, illness, or any other cause which renders a juror unfit or
disqualified to perform his duty as prescribed.” Id. Although
this Court has no published opinions discussing this particular
article, other appellate courts have interpreted it.

In State v. Robertson, 518 So.2d 579, 582-583 (La.App. 1
Cir. 1987), writ denied, 523 So.2d 227 (La.1988), a juror failed
to return to the courthouse the day after she was selected to
serve on the jury because she had learned her employer would
not pay her for the days she would spend on jury duty.
Following the issuance of a summons, the juror reported back
7

to court. When asked by the prosecutor whether she could be a
fair and impartial juror in light of this situation, the juror
explained that she could not because her mind would not be on
the trial. The First Circuit held that because the juror’s answers
indicated that she did not wish to serve on the jury and that she
would not be paying attention to the trial, the trial judge had no
choice but to excuse the juror pursuant to LSA-C.Cr.P. art. 796.

In State v. Taylor, 545 So.2d 1237 (La.App. 2 Cir. 1989),
judgm’t amended on other grounds, 551 So.2d 1332 (La.1989),
a juror notified the court that he was losing business due to his
inability to work and that this situation was causing him to be
distracted from the case. The Second Circuit held that due to
the juror’s testimony that he was unable to concentrate on the
case, the trial judge’s ruling was not an abuse of discretion. See
also State v. Wiley, 513 So.2d 849 (La.App. 2 Cir. 1987), writ
denied, 522 So.2d 1092 (La.1988)(trial judge properly
dismissed juror whose decision-making ability was probably
impaired and who could not concentrate on the trial because no
one was home to take care of her children).

Id. at 883.

In State v. Burns, 35,267, p. 7 (La.App. 2 Cir. 10/31/01), 800
So.2d 106, 108 (alteration in original), the court, in reversing a
conviction obtained after the trial judge, on his on motion, replaced a
juror he had observed to be sleeping, stated, “[a]s noted by the
supreme court in State v. Cass, supra at 397, ‘[t]he right of the
accused to have a juror selected by him try the case is a substantial
one, the improper deprivation of which is prejudicial. The doctrine of
harmless error is, therefore, inapplicable. (Citations omitted).’”

This historical retrospective makes definitive that La.Code
Crim.P. art. 789 permits replacement of a juror with an alternate juror
when the juror is physically unable to serve, or when the juror is
found to have become disqualified, or to have either the real or
potential for bias in the deliberations. What is not gleaned is whether
a juror’s personal business or social obligations, of which the trial
court is aware prior to his being sworn, renders that juror, after he has
heard all of the testimony, and is to be excused just as deliberations
are to begin, “unable to perform or disqualified from performing his
duties.”

Dismissal of a juror under these facts is not a recognized or
permissible course of action under La.Code Crim.P. art. 789. Dr.
Howell’s prior commitment to officiate at a football game rendered
him neither “unable to perform,” nor “disqualified from performing”
his duties. While the trial court’s desire to accommodate jurors is
commendable, such accommodation should not preempt a defendant’s
right to be tried by a properly empaneled jury selected by him.

8

Pursuant to the discussion in Tennors, we find that Antoine was neither

“unable to perform” nor “disqualified from performing” her duties as a juror. The

protected principle is that a defendant has a right to be tried by the jury he helped

select. The State notes that Defendant took actions that could have tainted the jury

through improper contact with Antoine. However, Tennors and the jurisprudence

cited therein interpreting La.Code Crim. P. art. 789 do not allow the removal of a

qualified juror. Antoine testified that she was not contacted by any member of

Defendant’s family, and the district court indicated it believed her. The court and

the State were concerned that Defendant might make continued efforts to contact

Antoine, but Article 789 and the jurisprudence do not allow the removal of a juror

due to such an inchoate issue.

For the reasons discussed above, we find merit to Defendant’s assignment of

error that the trial court erred by removing a seated juror and replacing her with an

alternate over his objection. Accordingly, Mr. Parker’s convictions are reversed,

and the case is remanded for a new trial. We pretermit consideration of the other

assignments of error.

CONVICTIONS REVERSED AND CASE REMANDED FOR A NEW

TRIAL.

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