State of Louisiana v. Ralph Johnson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-523

STATE OF LOUISIANA

VERSUS

RALPH JOHNSON

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2014-1638
HONORABLE E. DAVID DESHOTELS, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Ralph Johnson

Herbert Todd Nesom
District Attorney
Joe Green
Assistant District Attorney
33rd Judicial District Court
Post Office Box 839
Oberlin, Louisiana 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

Ralph Johnson
116029, Walnut -1
Louisiana State Prison
Angola, Louisiana 70712
DEFENDANT/APPELLANT IN PROPER PERSON:
Ralph Johnson

CONERY, Judge.

On May 28, 2014, Defendant Ralph Johnson was charged by grand jury

indictment with one count of second degree murder in violation of La.R.S. 14:30.1,

and one count of obstruction of justice in violation of La.R.S. 14:30.1(B)(1).

Defendant pled not guilty and not guilty by reason of insanity to both charges.

After the appointment of a sanity commission and consideration of its report, the

trial court found Defendant competent to stand trial. The issue of sanity at the time

of the offense was reserved for trial. Defendant also raised the affirmative defense

of voluntary intoxication under La.R.S. 14:15(2). The jury found Defendant guilty

of second degree murder, and not guilty of obstruction of justice. The trial court

heard and denied Defendant’s motion for new trial and motion for post-verdict

judgment of acquittal. At the sentencing hearing held on March 27, 2018,

Defendant received the mandatory sentence of life imprisonment at hard labor to

be served without the benefit of probation, parole or suspension of sentence.

Defendant now appeals his conviction and sentence. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

On April 7, 2014, police were dispatched to the Bowman Hicks apartments,

in response to a call that a black male was running around with a knife chasing

people and stabbing someone. Upon arrival, Officer Froehlich and Officer Frank

were pointed in the direction of Unit 56, the apartment of Ralph Johnson, who

witnesses identified as the person who committed the stabbing. The officers

arrested Ralph Johnson for aggravated battery for stabbing Michael Kirklin. When

officers were later informed the victim had died, Ralph Johnson was charged with

second degree murder.

Nadia Whiting testified that, the night before the incident, she and Defendant

smoked PCP at her apartment, but noted that Defendant was not acting erratically.

However, according to Ms. Whiting, the next day, Defendant returned to her

apartment and was talking to “Leroy[1] about he wanted to cook some crack, but he

had some cocaine, but he didn’t have enough cocaine. And Leroy wasn’t gonna do

it and he was mad.” When Defendant’s request was denied, he became angry and

left. 2 Ms. Whiting testified that when Defendant returned to her apartment, he was

very angry and threatening to kill everyone who was at her apartment. He then

attempted to cut into the screen on Ms. Whiting’s front door with a knife, at which

point she called the police and he left.

Other residents of Bowman Hicks apartments testified that Defendant then

began threatening a group of teenage boys, who Defendant believed were mocking

him. Eye-witness accounts and video evidence show that when Michael Kirklin,

the victim, told Defendant to “chill out” Defendant then began to chase him,

wielding his knife and threatening him. The victim ran into the home of Laura

Kirklin, his grandmother, and Defendant followed him. Laura Kirklin testified

through perpetuated video testimony obtained prior to trial 3 that Defendant

attacked her and held a knife to her stomach. According to the testimony of

Cletoria Kirklin, the victim’s younger cousin, the victim rushed out of the

apartment and punched Defendant in an attempt to stop Defendant from attacking

his grandmother. Cletoria Kirklin further testified that the victim threw a chair at

1
“Leroy” is identified as “Leroy Hobson” in the Defendant’s post-arrest video interview.
2
There are conflicting reports throughout the record as to what set off Defendant’s anger.
In his post-arrest interview, Defendant claims that that he was looking for Leroy to get his
money back after the latter sold him some bad drugs. Further, the video taken by Terrance “T.J.”
Merritt supports Defendant’s contention that he was trying to get his money back.
3
Laura Kirklin’s deposition was taken for use at trial as she had terminal cancer. She
died just before trial.
2

Defendant, who then began chasing the victim, at which point the victim slipped

and fell. Defendant got on top of the victim and immediately began stabbing him.

According to Cletoria Kirklin’s testimony, Defendant stabbed the victim five or six

times. Lauranna Kirklin, another cousin of the victim, also testified that Defendant

stabbed the victim multiple times, then he stood up and ran to his house, dropping

the knife as he ran.

The State called a total of ten witnesses who presented eye-witness accounts

of the events on April 7, 2014. The State also submitted into evidence a cellphone

video taken by Jahiem Kirklin, a cousin of the victim, which depicted the actions

of Defendant prior to the murder. Another cellphone video was submitted into

evidence by the State from Terrance “T.J.” Merritt, a friend of the victim, which

clearly showed Defendant stabbing the victim.

The State also presented a video of Defendant’s post-arrest interview

statement to Detective West on April 7, 2014. Defendant’s account of events prior

to the stabbing matches most of the eye-witness testimony. According to the video

interview, Defendant stated that he had a knife because he was going after Leroy to

get his money back because Leroy sold him baking soda instead of crack.

Defendant also stated that when he was headed to Leroy’s apartment, a group of

teenage boys started to tease him, then the victim hit him with a chair. Defendant

stated that “Mike got in the way” 4 but claims that he does not remember what

happened. Later in the interview, when questioned about the knife, Defendant was

not able to recall whether he had a knife. According to Defendant’s statements in

the video interview, he did not remember anything about stabbing the victim,

4
The victim’s name was Michael Kirklin and is the “Mike” referenced in Defendant’s
statement.
3

stating that he only remembered getting hit with a chair and then going to jail, but

nothing in between those two events.

Sanity Commission Proceedings

On June 11, 2014, Defendant entered pleas of not guilty and not guilty by

reason of insanity. The trial court appointed a sanity commission composed of Dr.

James Anderson and Dr. Garrett Ryder, who issued reports finding Defendant

competent to stand trial. On May 1, 2015, the trial court issued an amended order

directing Dr. Ryder and Dr. Anderson to supplement their initial evaluations with

their findings as to Defendant’s state of mind at the time of the offense. At the

hearing on the motion to determine mental capacity, the doctors found that

Defendant had the mental capacity and competency to proceed to trial and that he

was sane at the time of the offense, and they so testified at trial.

Trial and Post-Trial Proceedings

At trial, the State presented the testimony of multiple eye-witnesses, the

officers who came into contact with Defendant on the date of his arrest, and the

doctors appointed to the sanity commission. The defense presented testimony of a

detective, a deputy, and Mr. Carlos Robinson. The State recalled Dr. Anderson as

a rebuttal witness.

The jury returned a verdict of guilty of second degree murder and not guilty

on the charge of obstruction of justice. The trial judge ordered a pre-sentence

investigation (PSI) and set sentencing for March 27, 2018. On November 30, 2017,

Defendant filed a motion and order for new trial and/or motion for post-verdict

judgment granting acquittal. At a hearing on January 11, 2018, the trial court

denied Defendant’s motions. At the March 27, 2018 sentencing hearing, the trial

court considered the PSI, which indicated that Defendant was a fourth felony

offender. In accordance with La.R.S. 14:30.1, second degree murder, the trial
4

court sentenced Defendant to the mandatory sentence of life imprisonment at hard

labor to be served without the benefit of probation, parole or suspension of

sentence.

Defendant now timely appeals his conviction and sentence asserting two

assignments of error through counsel and two assignments of error through a pro se

brief filed by Defendant.

ASSIGNMENTS OF ERROR

Defendant submits the following counselled assignments of error:

1. The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a
reasonable doubt the elements of second degree murder. Ralph
Johnson was under extreme mental and emotional disturbance at
the time of this offense, which is of such severe nature that it is not
possible to treat this offense as a second degree murder.

2. The trial court erred in denying defense challenge for cause of
juror no. 23[,] Penny Bergeron[;] juror no. 206, Richard Nichols[;]
and juror no. 112 Alexis Hamilton.

Defendant submits the following pro se assignments of error:

1. Johnson’s trial counsel violated client autonomy when he conceded
guilt to specific intent murder during his closing argument to the
jury.

2. The State exercised a peremptory challenge against an African-
American juror in violation of Article I, § § 1, 2, 13, 16, 17 and 22
of the Louisiana Constitution of 1974 and the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.

LAW AND 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. After reviewing the record, we find there

are no errors patent.

5

Assignment of Error One: Sufficiency of the Evidence

Defendant asserts that the State failed to provide sufficient evidence to

convict him of second degree murder. Specifically, Defendant argues that the

State failed to prove beyond a reasonable doubt that he had the specific intent to

kill due to his defenses that he was either insane at the time of the offense or that

he was so intoxicated that he could not form specific intent. Alternatively,

Defendant argues he was provoked such that a responsive verdict of manslaughter

should be applicable, not second degree murder. Therefore, Defendant’s

conviction and sentence should be reversed.

The analysis for a sufficiency of the evidence claim is well-settled:

The standard of review in a sufficiency of the evidence claim is
“whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found proof beyond a
reasonable doubt of each of the essential elements of the crime
charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108,
170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100
(2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), and State v. Captville, 448 So.2d 676 (La.1984)).
The Jackson standard of review is now legislatively embodied in
La.Code Crim.P. art. 821. It does not allow the appellate court “to
substitute its own appreciation of the evidence for that of the fact-
finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517,
521 (citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165,
and State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s
function is not to assess the credibility of witnesses or to reweigh the
evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v.
Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other
than insuring the sufficiency evaluation standard of Jackson, “the
appellate court should not second-guess the credibility determination
of the trier of fact,” but rather, it should defer to the rational
credibility and evidentiary determinations of the jury. Id. at 1270
(quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98),
720 So.2d 724, 726–27). Our supreme court has stated:

However, an appellate court may impinge on the fact
finder’s discretion and its role in determining the
credibility of witnesses “only to the extent necessary to
guarantee the fundamental due process of law.” State v.
Mussall, 523 So.2d 1305, 1310 (La.1988). In determining
6

the sufficiency of the evidence supporting a conviction,
an appellate court must preserve “‘the factfinder’s role as
weigher of the evidence’ by reviewing ‘all of the
evidence ... in the light most favorable to the
prosecution.’” McDaniel v. Brown, 558 U.S. 120, 134,
130 S.Ct. 665, 674, 175 L.Ed.2d 582 [(2010)] (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the
evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99
S.Ct. at 2789.

State v. Cofer, 16-871 pp. 3-4 (La.App. 3 Cir. 4/5/17), 216 So.3d 313, 316–17, writ

denied, 17-1150 (La. 5/11/18), 241 So.3d 1014.

Louisiana Revised Statutes 14:30.1(A)(1) provides that, “Second degree

murder is the killing of a human being[,] [w]hen the offender has a specific intent

to kill or to inflict great bodily harm[.]” Specific intent is that state of mind that

“exists when the circumstances indicate that the offender actively desired the

prescribed criminal consequences to follow his act or failure to act.” La.R.S.

14:10(1).

Defendant pled not guilty and not guilty by reason of insanity. Defendant

also argued the affirmative defense of intoxication to the jury, just as he does to

this court. Because neither of these defenses involved a claim that Defendant was

not the one who stabbed the victim, defense counsel also argues an alternative

defense that Defendant was provoked and, further, was not in full possession of his

faculties due to ingesting “bad drugs.” He claims that the responsive verdict of

manslaughter should have been entered instead.

There is no question that Defendant inflicted the stab wounds which resulted

in the death of Michael Kirklin on April 7, 2014. In fact, a cellphone video

introduced into evidence by the State and taken from Terrance “T.J.” Merritt’s

phone shows Defendant stabbing the victim. Therefore, on review, we must
7

determine whether there was sufficient evidence to show that any of Defendant’s

asserted defenses negate the specific intent required to prove beyond a reasonable

doubt a conviction for second degree murder.

Affirmative Defense 1: Insanity

The supreme court set out the standard for reviewing insanity on a

sufficiency claim in State v. Silman, 95-154, p. 7 (La. 11/27/95), 663 So.2d 27, 32

(citations omitted):

In Louisiana, a legal presumption exists that a defendant is sane
at the time of the offenses. To rebut the presumption of sanity and
avoid criminal responsibility, defendant has the burden of proving the
affirmative defense of insanity by a preponderance of the
evidence. Criminal responsibility is not negated by the mere existence
of a mental disease or defect. To be exempted of criminal
responsibility, defendant must show he suffered a mental disease or
mental defect which prevented him from distinguishing between right
and wrong with reference to the conduct in question. The
determination of sanity is a factual matter. All the evidence, including
expert and lay testimony, along with the defendant’s conduct and
action, should be reserved for the fact finder to establish whether the
defendant has proven by a preponderance of the evidence that he was
insane at the time of the offense. Lay testimony pertaining to
defendant’s actions, both before and after the crime, may provide the
fact finder with a rational basis for rejecting unanimous medical
opinion that the defendant was legally insane at the time of the
offense.

In reviewing a claim for insufficiency of evidence in an action
where an affirmative defense of insanity is raised, this court, applying
the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts
and circumstances of the case, any rational fact finder, viewing the
evidence most favorable to the prosecution, could conclude, beyond a
reasonable doubt, that the defendant failed to prove by a
preponderance of the evidence that he was insane at the time of the
offense.

Following Defendant’s plea of not guilty and not guilty by reason of

insanity, the trial court appointed a sanity commission to determine if Defendant

was competent to stand trial and whether Defendant was insane at the time of the

offense. The jury heard from Dr. Ryder and Dr. Anderson, both of whom were

8

accepted as experts in the field of forensic psychiatry. Both testified that

Defendant was competent to stand trial. Both testified that they did not find

Defendant to have any mental disease that would affect his ability to distinguish

right from wrong at the time of the offense. Specifically, Dr. Ryder testified that

Defendant’s behavior at the time of the offense showed linear, goal-oriented

thinking, consistent with a person who knew right from wrong and who was able to

control his actions.

Defendant argued that he was suffering from a concussion at the time of the

offense, claiming that the victim hit him in the head with a chair before Defendant

began stabbing him. According to the testimony of the State’s witnesses, there are

varying reports as to whether Defendant was hit with a chair, who may have hit

Defendant with a chair and where, and at what point during these events Defendant

was hit with a chair, if at all.

More to the point, the testimony of the interviewing detective, Detective

West, stated that Defendant did not complain of any head injuries during booking,

nor did he see any physical signs of injury on Defendant. Furthermore, Dr.

Anderson, expert forensic psychiatrist, testified that nothing in Defendant’s

behavior in his interview video would indicate to him that Defendant suffered a

concussion. Given the expert testimony that Defendant was not insane at the time

of the stabbing and the inability of Defendant to prove he was concussed from

being hit with a chair before he started stabbing the victim, there is sufficient

evidence for the jury to have found that Defendant had the requisite specific intent

at the time of the offense. Accordingly, Defendant’s insanity argument lacks merit.

9

Affirmative Defense 2: Intoxication

Defendant contends in brief that his actions on April 7, 2014, were the result

of an involuntary bad reaction to voluntarily ingested substances. Louisiana

Revised Statutes 14:15(2) lays out the voluntary intoxication defense:

The fact of an intoxicated or drugged condition of the offender
at the time of the commission of the crime is immaterial, except as
follows:

....

(2) Where the circumstances indicate that an intoxicated or
drugged condition has precluded the presence of a specific criminal
intent or of special knowledge required in a particular crime, this fact
constitutes a defense to a prosecution for that crime.

The supreme court in State v. Mickelson, 12-2539, pp. 6-7 (La. 9/3/14), 149 So.3d

178, 183 (footnote omitted) (citations omitted), sets out the standard for proving an

intoxication defense:

Voluntary intoxication will not excuse a crime, but it is a
defense to a specific intent offense if the circumstances demonstrate
that intoxication precluded formation of the requisite intent. The
defendant has the burden of proving his intoxication defense;
thereafter, it falls to the state to negate that defense by showing
beyond a reasonable doubt that specific intent was present despite the
defendant’s alleged intoxication. Whether voluntary intoxication in a
particular case is sufficient to preclude specific intent is a question to
be resolved by the trier of fact.

“Because it is a state of mind, specific intent need not be proven as a fact,

but may be inferred from the circumstances and the defendant’s actions. Specific

intent may be formed in an instant.” Id. at 182. “[W]here the jury has heard all the

evidence and received the proper instructions from the trial judge regarding an

intoxication defense, its verdict should not be impinged upon absent an abuse of

the jury’s discretion.” State v. Smith, 95-1171, p. 4 (La.App. 3 Cir. 4/24/96), 677

So.2d 458, 461 (citations omitted).

10

While Nadia Whiting testified Defendant did PCP with her the previous

night, there is no witness testimony corroborating Defendant’s claim in his post-

arrest video interview that he had done drugs on the day of the incident. Some of

the State’s witnesses did testify that Defendant was a known drug user, and they

believed Defendant to be high on the day of the incident. His demeanor on that

day was abnormal, and he was acting differently than he usually does when high

on drugs. Detective West testified that he believed Defendant was intoxicated, but

he did not find his behavior indicated any sort of mental disturbance. Furthermore,

Dr. Anderson noted that when Defendant’s blood was tested on April 13, 2014, six

days after his arrest, it was positive for cocaine metabolites and PCP.

However, the fact that Defendant was high is not sufficient to negate specific

intent. Defendant’s intoxication must be so severe that it precluded an ability to

form specific intent in order for his intoxication to be an affirmative defense.

La.R.S. 14:15(2); See Mickelson, 149 So.3d 178. Both Dr. Anderson and Dr.

Ryder testified that the cellphone videos of the events of April 7, 2014, depicted

Defendant’s actions to be the result of logical, calculated thinking. In particular,

both experts testified that Defendant’s decision to leave Ms. Whiting’s home and

get a knife from his own apartment to cut through her screen door and force his

way inside showed intentional thought. Defendant then began chasing the victim

with the knife, screaming, “come get it,” clearly evidencing an intent to kill the

victim. When the victim went inside his grandmother’s house, Defendant began

attacking the victim’s grandmother, who was on the porch. The victim then came

out of the house and intervened in an effort to protect his grandmother. When the

victim accidentally fell, the defendant then immediately pounced on the victim,

stabbing him several times, resulting in the victim’s death.

11

Based on our independent review of all of the evidence, we find that it was

reasonable for the jury to have concluded that Defendant did not prove by a

preponderance of the evidence that intoxication precluded him from forming the

specific intent to kill the victim. We find no abuse of the jury’s discretion in its

verdict of guilty of second degree murder.

Alternative Defense: Responsive Verdict of Manslaughter

Lastly, in his counselled brief, Defendant argues that if neither affirmative

defense is applicable, then Defendant should be found guilty of no more than the

responsive verdict of manslaughter. In this regard, La.R.S. 14:31(A)(1) provides

that manslaughter is “[a] homicide which would be murder under either Article 30

(first degree murder) or Article 30.1 (second degree murder), but the offense is

committed in sudden passion or heat of blood immediately caused by provocation

sufficient to deprive an average person of his self-control and cool reflection.”

Defendant asserts that he was provoked when he was being mocked by a

group of boys, including the victim. Defendant also asserts that he was provoked

when he was hit in the head with a chair by the victim. At closing arguments,

defense counsel argued that before being “hit with a chair,” Defendant and the

victim were only using their fists, and that it was being hit with the chair that sent

Defendant into a rage that was sufficient to deprive an average person of cool

reflection. Arguments of counsel are not evidence, and the jury was able to see the

video and hear all the evidence.

“In reviewing defendant’s claim, this court must determine whether a

rational trier of fact, viewing the evidence in the light most favorable to the

prosecution, could have found that the mitigatory factors were not established by a

preponderance of the evidence.” State v. Lombard, 486 So.2d 106, 111 (La.1986)

(citations omitted).
12

Defendant has provided no support for his contention that “being ridiculed”

would be a sufficient provocation “to deprive an average person of his self-control

and cool reflection” such that a second degree murder should be considered

manslaughter. Furthermore, Defendant’s alternative claim that he was provoked

when the victim hit him in the head with a chair is likewise without support based

on our review of all the evidence. Although someone randomly coming up to

Defendant and hitting him in the head with a chair might be sufficient provocation

to attack that person in self-defense, that is not what the witness testimony was in

this case. Nearly every eye-witness, regardless of whether they saw the victim hit

Defendant with a chair, agreed that Defendant had been chasing teenagers around

with a knife, threatening to kill someone prior to his confrontation with the victim.

He specifically threatened to kill the victim and chased the victim to his

grandmother’s home. Furthermore, the videos from Jahiem Kirklin and “T.J.”

Merritt clearly show Defendant waving a knife around in a threatening manner,

with Jahiem’s video showing Defendant chasing after the victim at his

grandmother Laura Kirklin’s apartment telling him to “come get it.”

Finally, Defendant can be seen on video shoving Laura Kirklin directly in

front of her own door with his left hand while holding the knife in his right hand

roughly fifteen seconds before he stabbed the victim to death. Defendant’s

argument essentially asks this court to ignore the fact that he was chasing the

victim with a deadly weapon threatening to kill him, then physically battering the

victim’s grandmother immediately before the victim confronted him, and then

jumping on top of the victim when the victim fell and was helpless, stabbing him

multiple times.

Our independent review of the record does not support that Defendant

proved the requisite mitigating factors by a preponderance of the evidence such
13

that the jury was clearly wrong in returning a verdict of second degree murder

instead of manslaughter. To the contrary, the evidence clearly indicates that

Defendant threatened the victim and stabbed the victim multiple times after

chasing and threatening to kill him. We find that there was sufficient evidence to

convict Defendant of second degree murder, and the jury was not clearly wrong in

rejecting the responsive verdict of manslaughter. Accordingly, this assignment of

error lacks merit.

Assignment of Error Two: Challenge for Cause

Defendant asserts that the trial court erred in denying defense counsel’s

challenge for cause of three jurors. Defendant argues that the trial court’s denials

amount to an abuse of discretion, therefore entitling him to a reversal of his

conviction and sentence.

Defendant contends that the challenges for cause were valid because each

juror showed some form of partiality. Louisiana Code of Criminal Procedure

Article 797 governs the grounds on which either party may challenge a potential

juror for cause, and provides in pertinent part:

(2) The juror is not impartial, whatever the cause of his partiality. An
opinion or impression as to the guilt or innocence of the defendant
shall not of itself be sufficient ground of challenge to a juror, if he
declares, and the court is satisfied, that he can render an impartial
verdict according to the law and the evidence;

(3) The relationship, whether by blood, marriage, employment,
friendship, or enmity between the juror and the defendant, the
person injured by the offense, the district attorney, or defense
counsel, is such that it is reasonable to conclude that it would
influence the juror in arriving at a verdict;

(4) The juror will not accept the law as given to him by the court[.]

The supreme court recently addressed challenges for cause in State v. Turner,

16-1841, p. 37 (La. 12/05/18) 2018 WL 6423990, ___ So.3d ___, ___ and

explained that “[i]n ruling on a challenge for cause, the trial court is vested with
14

broad discretion and its ruling will be reversed only when the voir dire record as a

whole reveals an abuse of discretion.”

The trial judge’s refusal to excuse a prospective juror on the ground
he is not impartial is not an abuse of discretion where, after further
inquiry or instruction (frequently called “rehabilitation”), the
prospective juror has demonstrated a willingness and ability to decide
the case impartially according to the law and the evidence.

State v. Dotson, 16-473, p. 5 (La. 10/18/17), 234 So.3d 34, 39.

State v. Dorsey, 10-216, p. 24 (La. 9/7/11), 74 So.3d 603, 623, cert. denied,

566 U.S. 930, 132 S.Ct. 1859 (2012) (citations omitted) further provides:

Prejudice is presumed when a district court erroneously denies
a challenge for cause and the defendant ultimately exhausts his
peremptory challenges. Thus, to prove there has been an error
warranting reversal of a conviction and sentence, a defendant need
only show: 1) the trial court’s erroneous denial of the challenge for
cause; and 2) the use of all peremptory challenges. In Louisiana, a
defendant must also use one of his peremptory challenges curatively
to remove the juror or waive any complaint on appeal.

At trial, the trial court denied defense counsel’s challenges for cause of three

jurors: Penny Bergeron, Richard Nichols, and Alexis Hamilton. Defense counsel

subsequently used a peremptory challenge to remove each juror.

PENNY BERGERON

Defendant challenged Mrs. Bergeron for cause claiming that she could not

be impartial because during voir dire she stated that her sister was raped and

murdered by someone who was intoxicated. Defense counsel argues that this case

is too close to her past experiences. When questioned by the trial court, Mrs.

Bergeron assured the trial court judge that she could put her past experiences aside

and be impartial. The trial court denied the challenge for cause and defense

counsel subsequently used a peremptory challenge to remove her.

The fact that a prospective juror may have painful memories associated with

the subject of a criminal trial is not in and of itself a basis for a challenge for cause.

15

Turner, 2018 WL 6423990, ___ So.3d ___; See also Dotson, 234 So.3d 34. Upon

review, we find that Mrs. Bergeron was rehabilitated when she assured the court

that she could put aside her past experiences and judge the case fairly and

impartially. The trial judge was in the best position to judge the credibility of the

juror in question and we find no abuse of discretion. See Turner, 2018 WL

6423990, ___ So.3d ___.

RICHARD NICHOLS

Defendant also seeks review of the trial court’s denial of a challenge for

cause regarding Mr. Richard Nichols. Defense counsel challenged Mr. Nichols for

cause because he indicated that he would give more credibility to law enforcement

officers’ statements, and because of his background and many years of experience

in law enforcement, which included an association with the District Attorney, Todd

Nesom. Mr. Nichols also expressed reservations regarding intoxication as a

defense, but ultimately stated that he would follow the law as given to him by the

court even if he disagreed with the defense. When questioned by the trial court,

Mr. Nichols firmly stated that he would decide based on evidence and that his law

enforcement background would not affect his decision. The trial court further

inquired about Mr. Nichol’s reservations as to the intoxication defense, to which he

replied that he would follow the law as given to him by the court regarding

intoxication as a defense, insanity as a defense, and regarding the credibility of law

enforcement witnesses. The trial court denied the challenge for cause, finding Mr.

Nichols’ responses to be indicative of a rehabilitated juror that could be fair and

impartial.

Defendant cites to State v. Madison, 345 So.2d 485 (La.1977), for the

premise that service of a member of law enforcement on a criminal jury must be

scrutinized and may warrant granting a challenge for cause. We find the present
16

case distinguishable from Madison, 345 So.2d 485, as Mr. Nichols indicated that

he could be fair and impartial despite his former law enforcement duties. The trial

court’s denial of a challenge for cause of a potential juror for past employment in

the field of law enforcement is not an abuse of discretion when the potential juror

can articulate to the court that he or she can distinguish those past duties from their

duty to be fair and impartial as a juror. See State v. Bolden, 95-749 (La.App. 3 Cir.

4/17/96), 680 So.2d 6, writ denied, 96-1272 (La. 11/22/96), 683 So.2d 286; State v.

Allen, 93-838 (La.App. 5 Cir. 5/31/94), 638 So.2d 394. We find that the trial court

did not abuse its discretion in denying the challenge for cause of Mr. Nichols.

ALEXIS HAMILTON

Defendant asserts that the trial court erred in denying his challenge for cause

of Ms. Alexis Hamilton. Ms. Hamilton stated that she could not accept a voluntary

intoxication defense because she believes that a person knows what he is doing

when he ingests the substance, basing this reasoning on her father’s conviction for

killing someone in a head-on collision while drunk driving. Defense counsel

argued that the opinions expressed by Ms. Hamilton illustrate her inability to be

impartial. Upon further inquiry by the trial court, Ms. Hamilton expressed her

ability to be open minded, and the trial court denied the challenge for cause.

Because the record as a whole supports the trial court’s finding that Ms.

Hamilton could be open minded to the intoxication defense, the trial court acted

within its great discretion in denying Defendant’s challenge for cause.

Accordingly, Defendant’s second assignment of error lacks merit.

Pro se Assignment of Error: Defense Counsel’s Violation of Client Autonomy

In his first pro se assignment of error, Defendant asserts that his trial counsel

violated Defendant’s right to autonomy when he conceded Defendant’s guilt

during closing arguments, contrary to the United States Supreme Court’s holding
17

in McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500 (2018). Specifically,

Defendant alleges that his trial counsel “switched tactics” when he told the jury

that Defendant had the specific intent to kill the victim, but under the facts

presented, they should return a verdict of manslaughter, but only if they did not

accept the affirmative defenses first presented to them.

Defendant argues that because he pled not guilty by reason of insanity

coupled with an intoxication defense, his defense counsel violated McCoy, ___ U.S.

___, 138 S.Ct. 1500, by making an admission of specific intent when he presented

an alternative defense of manslaughter. In McCoy, ___ U.S. at ___, 138 S.Ct. at

1505, the Supreme Court found that an attorney cannot concede guilt for a client

who claims he is innocent of the crime:

We hold that a defendant has the right to insist that counsel refrain
from admitting guilt, even when counsel’s experienced-based view is
that confessing guilt offers the defendant the best chance to avoid the
death penalty. Guaranteeing a defendant the right “to have the
Assistance of Counsel for his defence,” the Sixth Amendment so
demands. With individual liberty—and, in capital cases, life—at stake,
it is the defendant’s prerogative, not counsel’s, to decide on the
objective of his defense: to admit guilt in the hope of gaining mercy at
the sentencing stage, or to maintain his innocence, leaving it to the
State to prove his guilt beyond a reasonable doubt.

Following the holding and reasoning in McCoy, ___ U.S. ___, 138 S.Ct.

1500, the Louisiana Supreme Court in State v. Horn, 16-559 (La. 9/7/18), 251

So.3d 1069, held that the trial court’s allowance of counsel to concede the

defendant’s guilt over the objections of the defendant was considered a structural

error, which accorded the defendant a new trial without any need to show prejudice.

We find Defendant’s case is clearly distinguishable from McCoy and Horn.

In addition to slight factual differences in both McCoy and Horn, 5 both courts

5
The Horn and McCoy defendants pled “not guilty.” Furthermore, the defendants in the
cases cited argued they had no involvement in the crimes, murder in McCoy and burglary in
Horn. In this case, Defendant’s killing of the victim was captured on video and witnessed by
several people.
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noted that the defense counsel’s decision to admit guilt was actively made over the

explicit objection of the defendant. In the present case, Defendant offered no

objection to defense counsel’s alternative defense of manslaughter. Defendant’s

trial counsel stated in his closing argument:

[S]econd degree murder has responsive verdicts. And if you don’t
want to go along with the justification defense, or the intoxication
defense, or the insanity defense, you still have to look at all the
elements for each one of those responsive verdicts . . . . But, the fact
of the matter is Ralph Johnson was provoked. And that provocation
led to, like I said, if you don’t want to go with the insanity plea or the
intoxication plea, it led to him having the specific intent to kill. So, if
our affirmative defenses are not to your satisfaction, at [worst] Ralph
is guilty of manslaughter, not second degree murder.

Defendant asserts that these arguments by trial counsel amount to an

admission of Defendant’s guilt to the charge of second degree murder. We

disagree. We find that counsel’s arguments are not a specific admission of

Defendant’s specific intent, but are clearly presented as an alternative argument for

the jury to consider a responsive verdict of manslaughter. Defense counsel’s

argument thus properly addresses a statutorily provided responsive verdict to

second degree murder. See La.Code Crim.P. art. 814. Furthermore, nothing in the

record indicates Defendant ever objected to defense counsel’s alternative argument

asserting the responsive verdict of manslaughter. Defendant’s first pro se

assignment of error lacks merit.

Pro Se Assignment of Error 2: State’s Peremptory Challenge Based on Race
Violates the Constitutions of the United States and Louisiana

In his second pro se assignment of error, Defendant argues that the trial

court erred in denying defense counsel’s challenge of racial discrimination in jury

selection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

“On appeal, a trial court’s ruling on the issue of discriminatory intent must

be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472,

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477, 128 S.Ct. 1203, 1207 (2008) (citations omitted). During voir dire, the State

used its second peremptory challenge on Mr. Byron Jones and defense counsel

asked the record to reflect that Mr. Jones was African-American. After the State

used its fourth peremptory challenge to excuse Mr. Charles Allen, another African

American, defense counsel asked for race-neutral reasons for both men’s removal.

The trial court found, and Defendant does not challenge on appeal, that the

State gave a valid medical reason for removing Mr. Allen, as his glaucoma could

make viewing exhibits difficult. However, with regard to Mr. Byron Jones, the

State’s reason for challenging Mr. Jones was a belief that Mr. Jones was

disinterested and not paying attention. The trial court ruled that a race-neutral

reason was given. Defendant asserts the trial court’s decision to deny his Batson

challenge as to Mr. Jones was erroneous. In State v. Nelson, 10-1724, p. 9 (La.

3/13/12), 85 So.3d 21, 28-29, the supreme court noted:

The Court in Batson outlined a three-step test for determining
whether a peremptory challenge was based on race. Under Batson and
its progeny, the opponent of a peremptory strike must first establish a
prima facie case of purposeful discrimination. Second, if a prima facie
showing is made, the burden shifts to the proponent of the strike to
articulate a race-neutral explanation for the challenge. Third, the trial
court then must determine if the opponent of the strike has carried the
ultimate burden of proving purposeful discrimination.

Defendant contends that the trial court erred in failing to carry out the third

step of the Batson analysis by not determining whether the State was being

intentionally discriminatory when exercising its peremptory challenge of Mr. Jones.

Further, Defendant contends that the trial court erred in failing to personally

evaluate the juror’s demeanor to determine if the juror exhibited the behavior that

is the claimed basis for the State’s strike.

Step three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, and “the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who exercises the
challenge[.]” In addition, race-neutral reasons for peremptory
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challenges often invoke a juror’s demeanor (e.g., nervousness,
inattention), making the trial court’s firsthand observations of even
greater importance. In this situation, the trial court must evaluate not
only whether the prosecutor’s demeanor belies a discriminatory intent,
but also whether the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the
prosecutor. We have recognized that these determinations of
credibility and demeanor lie “‘peculiarly within a trial judge’s
province,’” and we have stated that “in the absence of exceptional
circumstances, we would defer to [the trial court][.]”

Snyder, 552 U.S. at 477 (citations omitted).

The remaining step of the Batson analysis was for the trial court to

“determine if the opponent of the strike has carried the ultimate burden of proving

purposeful discrimination.” Nelson, 85 So.3d at 29.

The State offered that its reason for removing Mr. Jones was that he was

inattentive. See Snyder, 552 U.S. 472. Although the trial court stated it had not

noticed Mr. Jones being inattentive, it nonetheless found the State had offered a

valid race-neutral reason for removing Mr. Jones from the jury. Because the State

gave a jurisprudentially-recognized, race-neutral reason for its peremptory

challenge of Mr. Jones, no further evaluation or explanation is needed from the

trial court unless the trial judge makes a finding that the prosecutor’s reasons were

not credible.

In State v. Sparks, 88-17, p. 48 (La. 5/11/11), 68 So.3d 435, 474, cert.

denied, 566 U.S. 908, 132 S.Ct. 1794 (2012), the supreme court stated the

following:

After the prosecutor articulated his reasons for the strike, the trial
court simply noted and overruled the defendant’s objection.

At the second step of the Batson inquiry, the issue is the facial
validity of the prosecutor’s explanation. Hernandez [v. New York, 500
U.S. 352, 360, 111 S.Ct. 1859, 1866]; Purkett v. Elem, 514 U.S. 765,
768, 115 S.Ct. 1769[,] 1771, 131 L.Ed.2d 834 (1995) (per curiam).
Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race-neutral. Id.

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The defendant contends that because the trial judge did not
assess on the record the weight and credibility of the prosecutor’s
explanation and articulate a reason for accepting the prosecution’s
reason as race-neutral, the trial judge did not complete the third step
of the Batson framework, resulting in an inability for there to be
meaningful review. To the contrary, although the better practice is for
the trial court to establish for the record its evaluation of the
justification offered to rebut the inference of purposeful
discrimination, the trial court here did not err in failing to rule
expressly, when the reason given by the State was facially race-
neutral, self-explanatory and related to the case. There was no
discriminatory intent inherent in this explanation.

The State’s proffered explanation, that Mr. Jones was inattentive during voir

dire, is “facially race-neutral, self-explanatory and related to the case.” Id. In light

of Sparks, the trial court’s finding the State gave a race-neutral reason for striking

Mr. Jones was sufficient to satisfy the Batson analysis in this instance.

Accordingly, this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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