State of Louisiana v. Prince Record

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-614

STATE OF LOUISIANA
VERSUS

PRINCE RECORD

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2015-3272
HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Billy H. Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

CONVICTIONS AFFIRMED;
SENTENCES VACATED; AND
REMANDED FOR RESENTENCING.

Paula C. Marx

Louisiana Appellate Project

P.O. Box 82389

Lafayette, LA 70598-2389

(337) 991-9757

COUNSEL FOR DEFENDANT/APPELLANT:
Prince Record

Herbert Todd Nesom

District Attorney

Joe Green

Assistant District Attorney

Thirty-Third District Court

P.O. Box 839

Oberlin, LA 70655

(337) 639-2641

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, Prince Record, appeals his convictions and sentences for simple
escape and transactions involving proceeds from drug offenses. For the reasons
herein assigned, we affirm the convictions but vacate the sentences imposed and
remand to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant, Prince Record, was convicted by a unanimous jury verdict on May
11, 2017, of simple escape, a violation of La.R.S. 14:110, and transactions involving
proceeds of drug offenses, a violation of La.R.S. 40:1041. Defendant was originally
charged by way of a bill of information with seven counts. He proceeded to trial on
only four of the original seven, being one count of distribution of cocaine, one count
of possession with the intent to distribute marijuana, one count of simple escape, and
one count of transactions involving proceeds from drug offenses. The State
voluntarily dismissed the remaining three offenses prior to trial. Defendant was
acquitted of the charges of possession of marijuana with the intent to distribute and
distribution of cocaine.

The facts leading to his convictions were detailed in his jury trial through
multiple witnesses. The Allen Parish Narcotics Team sent an informant to the
residence of Defendant on February 19, 2014, to make an illegal narcotics buy from
Defendant in an undercover sting operation. The informant was given $15.00 in
marked bills, a $10 bill and a $5 bill. The transaction was recorded via audio and
video recording devices. Once completed, agents secured the cocaine purchased by
the informant and secured a search warrant for the residence in which Defendant
was known to stay and an arrest warrant for his arrest. The following day, on
February 20, 2014, the agents executed the warrants. At the residence designated in

the warrant, they apprehended Defendant and searched the residence. There, they

found him in possession of $1,300 in cash, including the marked $10 bill used in the
undercover buy operation. They also found marijuana, drug paraphernalia, and other
indicia of involvement in illegal drug sales. Defendant was arrested and handcuffed
during the search, but at some point, with handcuffs on, Defendant escaped and fled
the scene. Officers could not catch him at the time. He was not apprehended until
a year and a half later.

Following the convictions but prior to sentencing, the State filed a multiple
offender bill of information charging that Defendant was a third felony offender,
having been previously convicted of two separate narcotics offenses. Defendant was
adjudicated a third felony offender on September 13, 2017, and written reasons in
support of the finding were signed on September 26, 2017, as per the provisions of
La.R.S. 15:529.1(D)(3), as follows:

The Court finds that the State proved beyond a reasonable doubt

that Prince Record was convicted in this Court on August 22, 2011 in

the matter of State of Louisiana vs. Prince Record, criminal docket

number 2008-3126, for the offenses of Possession with the Intent to

Distribute Schedule II, to wit: Cocaine, La. R.S. 40:967(A)(1) and

Obstruction of Justice, La. R.S. 14:130.1. Further, defendant was

convicted on September 14, 20112 [sic] on September 14, 2012[sic], in

this Court in the matter entitled State of Louisiana vs. Prince Record,

criminal docket number 2012-1434, for Possession with Intent to

Distribute a Schedule II Controlled Dangerous Substance, to wit:
Cocaine, La. R.S. 40:967(A)(1).

On September 13, 2017, after finding Defendant a third felony offender, the
trial court sentenced Defendant to two and a half years for simple escape and to ten
years for transactions involving proceeds from drug offenses, with the sentences to
run consecutively to each other and consecutively to any other sentences Defendant
was serving at the time. Defendant thereafter filed a pro se notice of appeal in docket
number 18-85. This court issued an order on February 6, 2018, remanding the matter
for an evidentiary hearing to determine whether Defendant was entitled to court-
appointed counsel or whether he had made an intelligent and voluntary waiver of

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counsel after an affirmative showing on the record that the trial court had informed
him of the dangers and disadvantages of self-representation. The trial court found
Defendant indigent and appointed counsel at a hearing on April 5, 2018. Defendant
has now filed the present appeal, seeking to have his convictions vacated, a new trial
ordered, or a remand for the purpose of reconsidering his sentences.

Defendant asserts on appeal three assignments of error, the first two of which
are intertwined. Defendant first urges that the trial court erred in denying his
challenge for cause of a prospective juror, and alternatively, if the error was not
preserved for appeal by objection of trial counsel, Defendant asserts that his
convictions should be reversed for ineffective assistance of counsel. He also asserts
that the trial court erred in denying his motion to reconsider his sentences as being
untimely filed.

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 that there
are errors patent, one involving the jury deliberation process that we will address
first and the other involving sentencing.

Replacement of Primary Juror with Alternate

After the jury retired to deliberate, one of the principal jurors, David Briscoe,
became ill and requested to be excused. Because of the nature of the illness, the trial
judge granted the request and designated the first alternate juror, Beverly Thomas,
to replace Mr. Briscoe. The record does not reflect that the entire jury was brought
back to the courtroom during the time of the release of juror Briscoe and the swearing
and appointment of alternate juror Thomas to replace him, such that the jury could
be instructed to begin its deliberations anew, as prescribed by La.Code Crim.P. art.

789, which states the following regarding the selection and use of alternate jurors:

3

A. The court may direct that not more than six jurors in addition
to the regular panel be called and impaneled to sit as alternate jurors.
Alternate jurors, in the order in which they are called, shall replace
jurors who become unable to perform or disqualified from performing
their duties. Alternate jurors shall be drawn in the same manner, shall
have the same qualifications, shall be subject to the same examination
and challenges for cause, shall take the same oath, and shall have the
same functions, powers, facilities, and privileges as the principal jurors.
If the court determines that alternate jurors are desirable in the case, the
court shall determine the number to be chosen. The regular peremptory
challenges allowed by law shall not be used against the alternate jurors.
The court shall determine how many additional peremptory challenges
shall be allowed, and each defendant shall have an equal number of
such challenges. The state shall have as many peremptory challenges
as the defense. The additional peremptory challenges may be used only
against alternate jurors. Except in capital cases, an alternate juror who
does not replace a principal juror may be discharged when the jury
retires to consider its verdict.

C. Ifthe court, as provided in Paragraph A, replaces a principal

juror with an alternate juror after deliberations have begun, the court

shall order the jury to begin deliberations anew.

The record supports the trial court’s finding that juror Briscoe was unable to
serve after the jury retired to deliberate and thus the trial court was authorized by
La.Code Crim.P. art. 789 to replace juror Briscoe with alternate juror Thomas. See
State v. Spencer, 446 So.2d 1197 (La.1984). There is, however, no indication in the
record that the trial court instructed the jury to begin deliberations anew as required
by La.Code Crim.P. art. 789(C). Although it appears the alternate juror was
appointed near the beginning of the deliberation process, the record is unclear as to
whether the jury had already begun deliberating as reflected by the trial courts’
following statements:

Let the record reflect we will go back into criminal session.

We’|] continue with the trial in State of Louisiana versus Prince Record,

CR-2015-3272. The Court has been advised from the bailiff that Mr.

Briscoe, juror number 31, when he was leaving the Courtroom he fell

ill and this is just for the record and he was vomiting and was escorted.

He tried to continue with deliberations or I guess to begin deliberation

and so he was escorted to the restroom by one of the bailiffs. He has
continued to throw up, he has soiled his clothes and he’s feeling very

4

faint and ill and he does not think that he can continue with
deliberations although he tried. So he is requested [sic] from the
COURT that he be excused and the COURT will grant that request and
order that Alternate #1, Beverly Thomas, be seated and so we will go
ahead and bring Ms. Thomas in and swear her in as a juror and then
send her to the jury room for deliberations. Could you bring Ms.
Thomas in? ... Okay, Ms. Thomas, please come over here. And you
were previously sworn in as an alternate juror. Now we have to swear
you in as a juror because you’re going to have to go in and participate
in deliberations because that other gentlemen [sic] is not able to
continue. So please raise your right hand and the clerk will give you
your jurors[’] oath.

The fourth circuit addressed a similar error in State v. Clark, 97-1757 (La.App.
4 Cir. 4/7/99), 732 So.2d 138. Unlike the present case, the issue in Clark was
assigned as error on appeal. At some point after the jury retired for deliberations in
Clark, it was discovered that a person chosen for the jury (Ms. Reed) had mistakenly
been excused, and a person who had been excused (Ms. Brown) had been seated as
a juror. Clark, 732 So.2d at 142. Upon discovering the mistake, the State moved to
excuse Ms. Brown and replace her with the alternate, Mr. Camp. /d. The court
agreed with the State’s motion and ordered the jury to stop deliberating, if it had
already begun to do so. /d. When the trial court replaced Ms. Brown with the
alternate, Mr. Camp, the trial court ordered the jury “to begin deliberations.” Jd.
Clark moved for a mistrial, which the trial court denied. /d. On appeal, Clark argued
the trial court erred in denying her motion for mistrial “because the excused juror
had participated in deliberations up to the point the mistake was realized, and this
participation tainted the jury.” /d. The fourth circuit addressed the error as follows:

Substitution of the alternate for a properly-seated juror who

became unable to sit, even after deliberations had begun, would be a

valid course of action if the trial court ordered the jurors to begin

deliberations anew with the alternate juror. La.C.Cr.P. art. 789,

provides in part that alternate jurors “shall replace jurors who become

unable to perform or disqualified from performing their duties”, and

that if a court replaces a seated juror with an alternate juror after

deliberations have begun, the court “shall order the jury to begin
deliberations anew.” [Emphasis added. ]

The presumption of prejudice as a result of an unauthorized
communication, contact, or tampering directly or indirectly by a
nonjuror with a juror during trial is not conclusive, but the burden rests
heavily upon the State to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to the
defendant. State v. Bibb, 626 So.2d 913 (La.App. 5 Cir.1993), writ
denied, 93-3127 (La.9/16/94), 642 So.2d 188, citing Remmer v. United
States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); State
v. Marchand, 362 So.2d 1090, 1092 (La.1978). The State must show
that the outside influence was not prejudicial. /d.

In State v. Howard, 573 So.2d 481 (La.1991), the alternate juror
participated in the jury’s deliberation, although he did not participate in
the vote. The defendant was convicted by a margin of 10-2. In a per
curiam opinion, the Supreme Court stated: “The alternate juror’s
participation in the jury deliberations (as opposed to the alternate
juror’s mere presence in the jury room) constituted an extraneous
influence on the jury. Evidence of this participation established a prima
facie case of prejudice to the defendant.” The Supreme Court reversed
the defendant’s conviction and remanded the case for further
proceedings.

In State v. Duplissey, 550 So.2d 590 (La.1989), the Louisiana
Court held that an unauthorized communication to the jury by the bailiff
was presumed to be prejudicial when it was about a matter pending
before the trial court. The bailiff communicated with the jurors
concerning the proper manner for the jurors to conduct deliberations
where one juror could not read or write. The Supreme Court found that
the State did not show that the unauthorized communication was not
prejudicial. The conviction and sentence were reversed, and the case
was remanded for a new trial.

In the present case, the incorrect juror who was seated was a juror
who was excused by the State. When the defendant moved for a
mistrial, the State argued that there was no prejudice to the defendant
because the juror had been excused by the State and was acceptable to
the defense. Defense counsel, however, pointed out that he did not have
an opportunity to object to that prospective juror because the State had
already excused her.

The record does not indicate how long after the jury retired that
it discovered the discrepancy in the verdict slips. The minute entry
indicates only that the jury retired at 4:30 p.m. and returned with a
verdict at 5:20 p.m. It does not reflect that a juror was replaced. The
record does not show that the incorrectly seated juror did not participate
in the deliberations until the error was found. The outside influence of
the incorrectly seated juror on the jury is presumed to establish a prima
facie case of prejudice to the defendant. However, the State may rebut
the presumption by showing the defendant was not harmed. Under the
circumstances, the State failed to meet its burden of proving that there
was no outside influence of the incorrect juror on the jury during

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deliberations, and that any outside influence was not prejudicial to the
defendant.

Further, when the incorrect juror was replaced by the alternate
juror, the record does not establish that the trial court ordered the jury
to begin the deliberations anew as mandated by La.C.Cr.P. art. 789.
The only reference in the trial transcript is the statement by the court to
the sheriff that he was to replace Ms. Brown with the alternate juror,
and once the alternate juror was in place, “then you can tell the jurors
to commence deliberations.”

Accordingly, the defendant’s conviction and sentence are
reversed. The case is remanded for a new trial.

Id. at 143-44.

Unlike Clark, the instant case does not involve any unauthorized
communication with the jury as Mr. Briscoe was properly chosen as a juror and
became unable to continue to serve only as a result of an illness. According to the
record, Ms. Thomas did not participate in deliberations until she was swom in as a
juror. Thus, this case is distinguishable from Clark in that the only error that
occurred in the present case was the trial court’s failure to instruct the jurors to begin
deliberations anew. Further, the error in the present case has not been directly raised
on appeal, and no motion for mistrial was made in the trial court.

While we can find no case where this error has been recognized as an error
patent, this court has, however, addressed a comparable error patent in the trial
court’s failure to sequester the jury. In State v. Breaux, 08-1061, pp. 8-9 (La.App. 3
Cir. 4/1/09), 6 So.3d 982, 988-89, this court stated:

Louisiana Code of Criminal Procedure Article 791(B) provides,

“Tiln capital cases, after each juror is sworn he shali be sequestered,

unless the state and the defense have jointly moved that the jury not be

sequestered.” A review of the record does not indicate whether the trial

court sequestered the jury or whether the parties moved to not have the

jury sequestered. However, Defendant did not object at trial for failure

to sequester, and he did not assign this issue on appeal. Nevertheless,
this court has recognized this error as an error patent and applied the
harmless error analysis. [State v. Schrader, 518 So.2d 1024 (La.1988)];
[State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366];
State v. D.T., 08-814 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258.

7

As noted above, the:

[Pjresumption of prejudice for “capital cases” does not
apply to a “capital case” where the defendant never faced
the prospect of the death penalty and where counsel failed
to press the point in the trial court, or object to the lack of

sequestration. In the absence of actual prejudice, this right
to sequestration is waived.

Schrader, 518 So.2d at 1037. See also, Marcantel, 756 So.2d 366.
In this case, the death penalty could not be imposed, and the State

did not seek it. Additionally, Defendant fails to assign this error in his

appeal, and he fails to allege or prove any prejudice suffered by this

possible error. Accordingly, we conclude that this error is harmless.

Likewise, Defendant in the present case did not assert any objection as to the
alternate juror in the trial court, does not assign any such issue on appeal, and does
not allege any prejudice resulting from the issue. Further, we find no prejudice to
Defendant here. The minutes of court from May 11, 2018, reflect that the jury retired
to deliberate at 6:02 p.m. and that at 6:10 p.m. the court was advised that primary
juror Briscoe “fell ill, began to vomit, could not continue with deliberations, and has
requested to be excused” which request was granted. The trial court thereafter swore
alternate juror Thomas in and sent her to deliberate with the remaining jurors, also
at 6:10 p.m. Thus, the original jury had only been in the jury room to begin
deliberations for a total of eight minutes during which time juror Briscoe was ill,
vomiting, and could not continue. Alternate juror Thomas was not in the jury room
participating during those eight minutes. At 7:26 p.m. the jury returned its verdict
of not guilty of counts one and two, and guilty of count three, simple escape, and
count four, transactions involving proceeds from drug offenses.

We find that any error that occurred by the failure to instruct the jury to begin
deliberations anew to be harmless error. This court has previously determined that

the improper replacement of a primary juror with an alternate juror, for reasons

unrelated to illness, disability, or death, was structural in nature and not subject to a

8

harmless error analysis. In the present case, the trial court properly allowed the
replacement of the primary juror for severe illness, which prohibited him from
deliberating. The record further shows only a lapse of eight minutes between the
original jury’s withdrawal to deliberate and the replacement of the juror. It is equally
clear that the alternate juror had not previously participated in deliberations, and
there was no objection by either the State or Defendant.!
Sentencing

In addition, we find that the trial court applied the wrong version of La.R.S.
15:529.1 when sentencing Defendant. The crimes for which Defendant was

convicted occurred in 2014.* The trial court, in sentencing here, applied the habitual

See State v. Tennors, 05-538 (La.App. 3 Cir. 2/15/06), 923 So.2d 823.

*The habitual offender statute in effect at the time Defendant committed the offenses for
which he was adjudicated a third habitual offender provided, in pertinent part:

(3) If the third felony is such that upon a first conviction, the offender would
be punishable by imprisonment for any term less than his natural life then:

(a) The person shall be sentenced to imprisonment for a determinate term
not less than two-thirds of the longest possible sentence for the conviction and not
more than twice the longest possible sentence prescribed for a first conviction; or

(b) If the third felony and the two prior felonies are felonies defined as a
crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et
seq. when the victim is under the age of eighteen at the time of commission of the
offense, or as a violation of the Uniform Controlled Dangerous Substances Law
punishable by imprisonment for ten years or more, or any other crimes punishable
by imprisonment for twelve years or more, or any combination of such crimes, the
person shall be imprisoned for the remainder of his natural life, without benefit of
parole, probation, or suspension of sentence.

Under this penalty provision, Defendant’s sentencing range for simple escape, third
habitual offender, was a minimum of 3.3 years imprisonment and a maximum of ten years
imprisonment. La.R.S. 14:110(B)(4). Thus, Defendant’s sentence of 2.5 years for simple escape,
third habitual offender, would be illegally lenient. Applying this penalty provision to the offense
of a transaction involving drug proceeds, third habitual offender, Defendant would have faced a
mandatory life sentence - both the sentence being enhanced (transaction involving drug proceeds)
and the two prior felonies (possession with the intent to distribute cocaine committed on January
30, 2007 and possession with the intent to distribute cocaine committed on May 11, 2010) were
violations of the Uniform Controlled Dangerous Substances Law punishable by ten years or more.
Thus, under the habitual offender penalty provision in effect at the time Defendant committed a
transaction involving drug proceeds, Defendant’s sentence of 10 years would be illegally lenient.

9

offender statute as amended by 2017 La. Acts No. 257.' The amendment provided
that the change “shall have prospective application only to offenders whose
convictions became final on or after November 1, 2017.” /d. § 2. In State v. Purvis,
17-1013 (La.App. 3 Cir. 4/18/18), 244 So.3d 496 and State v. Williams, 17-1753 (La.
6/15/18), 245 So.3d 1042 (per curiam), the new version of the statute as amended in
2017 was applied to sentences enhanced for crimes occurring before 2017 as
convictions not yet final after the effective date of the new law. However, effective
August 1, 2018, the legislature amended the habitual offender statute to specifically
state that the habitual offender penalty provision in effect on the commission date of
the offense being enhanced is the penalty provision that must be applied. La.R.S.
15:529.1(K). In a recent case, the second circuit found the 2018 amendment was a
curative provision. State v. Edden, 52,288 (La.App. 2 Cir. 11/14/18), 259 So.3d
1196. Additionally, the second circuit stated:

Because the 2018 amendments are procedural and this decision is being

decided after August 1, 2018, we find that Edden was sentenced under

the proper habitual offender law in effect in 2014, the date of the
underlying offense.

Id.

Both the second and first circuits have found the 2018 amendment effectively

abrogated State v. Purvis, 244 So.3d 496 and State v. Williams, 245 So.3d 1042. In

State v. Floyd, 52,183, p. 7 (La.App. 2 Cir. 8/15/18), 254 So.3d 38, 43, the court

* Under the amended version, Defendant’s sentence for simple escape, third habitual
offender, is subject to a minimum term of imprisonment of 2.5 years and a maximum term of
imprisonment of 5 years. Thus, Defendant’s sentence of 2.5 years is legal. As for Defendant’s
sentence for a transaction involving drug proceeds, third habitual offender, the November 1, 2017
amendment drastically reduced Defendant’s sentencing exposure by removing persons with a
current and prior felony conviction under the Uniform Controlled Dangerous Substance law from
the group of persons subject to a life sentence. Under the amended version, Defendant’s sentence
for a transaction involving drug proceeds, third habitual offender, is subject to a minimum term of
imprisonment of five years and a maximum term of imprisonment of 20 years. Thus, Defendant’s
sentence of 10 years for a transaction involving drug proceeds, third habitual offender, is a legal
sentence under the November 2017 amendment.

10

stated “the legislature clearly stated its intent to diminish the penalties for certain
habitual offenders, but equally clearly stated its intent not to reopen or relitigate
cases that arose before the effective date” and that “jurisprudence also holds that the
version of the habitual offender law in effect at the time of the crime is the version
that applies; amended provisions apply only to offenses committed after their
effective dates.” Consequently, despite the 2017 ameliorative changes to the
habitual offender statute, the first and second circuits have applied the habitual
offender penalty provision in effect when the offense was committed, as directed by
the 2018 amendment and the Legislative mandate to do so. We agree that the version
of La.R.S. 15:529.1 at the time of the commission of the offenses, February 19 and
20, 2014, applies to Defendant’s convictions and sentences.

For the reasons specified herein, we vacate the sentences imposed and remand
to the trial court with instructions to resentence Defendant, applying the version of
the law at the time of the offense being subject to sentence enhancement herein.
Assignment of Error No. 1: Challenge for Cause

In his first assignment of error, Defendant alleges the trial court erred when it
denied his challenge for cause of juror Amber Monk. He contends the trial court
abused its discretion by denying the challenge because of Ms. Monk’s “past and
present connections to law enforcement and trial witnesses.”

[Louisiana Code of Criminal Procedure Article] 800(A) requires an

objection at the time of the ruling, which denies a challenge for cause,

in order to preserve the claim for appellate review. Article 800(A) also

mandates that the nature of the objection and the grounds therefor be

stated at the time of the objection. With respect to that provision, this

court has made clear:

Our law is also settled that an objection need not be
raised by incantation. “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, or of his objections to the action of the court,
and the grounds therefor.” C.Cr.P. 841; State v. Boutte,

11

384 So.2d 773 (La. 1980). The requirement that objection
be raised contemporaneously is not meant to be inflexible,
but is designed “to promote judicial efficiency and to
insure fair play.” State v. Lee, 346 So.2d 682, 684 (La.
1977). Article 800 should not be read to differ in this
respect from Article 841.

State v. Vanderpool, 493 So.2d 574, 575 (La. 1986).

State v. Clark, 12-508, p. 99 (La. 12/19/16), 220 So.3d 583, 663, cert. granted,
judgment vacated on other grounds, _U.S. __, 138 S.Ct. 2671 (2018).

The Clark court found the defendant could not assign error to the denial of a
challenge for cause as he failed to lodge a contemporaneous objection to the trial
court’s denial. Likewise, in State v. Anderson, 06-2987, p. 28 (La. 9/9/08), 996
So.2d 973, 996, cert. denied, 556 U.S. 1165, 129 S.Ct. 1906 (2009), our supreme
court cited La.Code Crim.P. art. 800 and stated, “A defendant must object at the time
of the ruling on the refusal to sustain a challenge for cause of a prospective juror.”

However, this court has not always followed that rule. In State v. Queen, 17-
599 (La.App. 3 Cir. 1/4/18), 237 So.3d 547, writ denied, 18-211 (La. 11/20/18), 257
So.3d 186, this court determined that a defendant’s failure to object to the denial of
challenges for cause did not prohibit review of the issue on appeal. This court quoted
State v. Pinion, 06-2346, p. 10 (La. 10/26/07), 968 So.2d 131, 136, noting, “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.” Queen, 237 So.3d at 563.

Our supreme court has not consistently determined whether a party must lodge
an objection to the denial of a challenge for cause in order to preserve the issue for
appeal. Thus, while we could follow Clark, 220 So.3d 583, and Anderson, 996 So.2d
973, and hold that Defendant here may not complain of Ms. Monk’s presence on the

jury because he did not specifically object to the trial court’s denial of his challenge

12

for cause, we choose instead to follow the directive in Pinion, 968 So.2d 131, and
review the denial of the challenge for cause. Although counsel did not lodge an
objection, counsel did note his reasons for his challenge for cause of juror Monk and,
thereafter, exercised a peremptory challenge when the challenge for cause was
denied.

A party may challenge a juror for cause on grounds that he “is not impartial”
or that a “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[.]” La.Code Crim.P. art. 797(2)
and (3).

A challenge for cause should be granted even when a prospective

juror declares his ability to remain impartial if the juror’s responses, as

a whole, reveal facts from which bias, prejudice, or inability to render

judgment according to law may be reasonably inferred. State v. Hallal,

557 So.2d 1388, 1389-90 (La. 1990). Prejudice is presumed when a

challenge for cause is denied erroneously by a trial court and the

defendant ultimately exhausts his peremptory challenges. State v.

Robertson, 92-2660, pp. 3-4 (La. 1/14/94), 630 So.2d 1278, 1280

(citing State v. Ross, 623 So.2d 643, 644 (La. 1993)).

Clark, 220 So.3d at 663 (footnote omitted).

A trial judge is vested with broad discretion in ruling on challenges for

cause, and such a ruling is subject to reversal only when a review of the

entire voir dire reveals the judge abused his discretion. Robertson, 630

So.2d at 1281. 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. /d.

State v. Dotson, 16-473, p. 5 (La. 10/18/17), 234 So.3d 34, 39.
“In summary, where all peremptory challenges have been used .. . a defendant need

only demonstrate the erroneous denia! of a challenge for cause to establish reversible

error warranting reversal of a conviction and sentence.” /d. at 38.

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Clearly, La. C.Cr.P. art. 797(2) does not require that a
prospective juror state with absolute certainty that he/she cannot be
impartial in order to be removed for cause. However, in the absence of
such a statement, the trial court’s denial of a challenge for cause will
not be reversed if, on review of the entire voir dire examination, the
prospective juror demonstrates a willingness and ability to decide the
case impartially according to the law and evidence. Passman, 345
So.2d at 880. Reversal is appropriate only where it appears, upon
review of the voir dire examination as a whole, that the trial judge’s
exercise of that discretion has been arbitrary or unreasonable, resulting
in prejudice to the accused. /d.; see Dorsey, 10-0216 at 28, 74 So.3d at
625; State v. Lee, 93-2810 (La. 5/23/94), 637 So.2d 102, 108. This
standard of review is utilized “because the trial judge has the benefit of
seeing the facial expressions and hearing the vocal intonations of the
members of the jury venire as they respond to questions by the parties’
attorneys.” Lee, 93-2810 at 9, 637 So.2d at 108. “Such expressions
and intonations are not readily apparent at the appellate level where
review is based on a cold record.” Jd. As noted in State v. Miller, 99-
0192 (La. 9/6/00), 776 So.2d 396, because of the “complicated and
oftentimes daunting” task faced by a trial court in deciding “challenges
for cause of prospective jurors who give equivocal . . . responses during
voir dire,” “an appellate court should accord great deference to the
[trial] court’s ruling on a challenge for cause, which is necessarily

based, in part, on the court’s personal observations during questioning.”
Id., 99-0192 at 14, 776 So.2d at 405-06.

Dotson, 234 So.3d at 45.

The Dotson court found that the trial court’s determination of the juror’s competency
was not arbitrary or unreasonable and did not result in the “prejudicial injury of the
defendant in obtaining a fair and impartial trial.” /d. Thus, the appellate court erred
by reversing the trial court’s denial of the challenge for cause.

According to Clark, 220 So.3d 583, a party is limited on appeal to arguing the
grounds he stated in his challenge for cause. At trial, the Clark defendant failed to
argue a potential juror’s “unspecified familial relationship to law enforcement
officers was a basis for challenging her[.]” /d. at 667. Thus, he did not properly
preserve that argument for appeal and was limited on appeal to the concerns he had
expressed at trial.

Here, Defendant’s counsel expressed concern about Ms. Monk. There and in

further colloquy with the trial judge and the State’s counsel, that concern addressed

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Ms. Monk’s friendship with Brandon Johnson, of the Oakdale Police Department,
who testified at trial, with Johnson’s wife, and with their family. However, on
appeal, Defendant further complains of Ms. Monk’s association to law enforcement
in addition to her friendship with the Johnsons. As per the rational set forth in Clark,
220 So.3d 583, Defendant did not preserve any argument about Ms. Monk’s
association with law enforcement at trial. Thus, this court will consider only
Defendant’s argument about Ms. Monk’s friendship with the Johnsons in
determining whether the trial court erred in denying his challenge for cause
concerning her.

During voir dire, Ms. Monk said she and Detective Johnson were good
friends, and she and Detective Johnson’s wife were best friends. Ms. Monk stated
that she was able to separate that friendship, listen to the evidence, apply the facts to
the evidence, and give Defendant a fair and impartial trial. She stated she would not
give his testimony any more credit than anyone else’s or “take [his] side just because
of what he says.” She considered herself “a fair person.”

Ms. Monk had known Detective Johnson’s wife about six years at the time of
trial; they were best friends. She considered Mrs. Johnson more like a sister, more
like family than best friends. Ms. Monk did not think her feelings about Mrs.
Johnson, her family, or Detective Johnson would affect her decision making.

The trial court found Ms. Monk could be fair and impartial and denied
Defendant’s challenge for cause. Defense counsel stated no objection to that
decision. Defense counsel did not initially use a peremptory challenge on Ms. Monk
and thereafter exercised two more peremptory challenges, before he used one on Ms.
Monk, and he used one more from that venire group before additional potential
jurors were questioned. Both of his remaining peremptory challenges were

exercised against potential jurors called from the last venire group. Defendant has

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not identified any other juror for which he would have used a peremptory challenge
had he not used the challenge to exclude Ms. Monk.
Prospective jurors’ associations with law enforcement agencies

or personnel require careful scrutiny by the trial judge. State v. Ford,

489 So.2d 1250, 1259 (La.1986), vacated on other grounds, 479 U.S.

1077, 107 S.Ct. 1272, 94 L.Ed.2d 133 (1987), on remand, 503 So.2d

1009 (La.1987). If bias or prejudice may be reasonably attributed to

the relationship, a juror should be excused for cause. State v. Lewis,

391 So.2d 1156 (La.1980).

State v. Alexander, 620 So.2d 1166, 1167 (La.1993) (per curiam).

Ms. Monk never expressed any doubt and never wavered about her ability to
be a fair and impartial juror. She never expressed any bias or prejudice. Defense
counsel never brought out any way that Ms. Monk’s relationship with the Johnson
family would impact her jury service. Ms. Monk maintained she could be fair and
impartial, and Defendant failed to show she could not. Accordingly, we find that
the trial court did not err by denying Defendant’s cause challenge concerning Ms.
Monk.

Assignment of Error No. 2: Ineffective Assistance of Counsel

Defendant next contends, should this court find review of the denial of the
challenge for cause of Amber Monk is precluded by counsel’s failure to object on
all grounds and for failure to object to the denial of the challenge for cause, counsel’s
failure constitutes ineffective assistance of counsel. This assignment is rendered
moot by our finding that the trial court did not err in its denial of the challenge for
cause as to juror Amber Monk. To the extent that our determination may raise any
additional claim of ineffective assistance of counsel, such is more appropriately
addressed in an application for post-conviction relief, where an evidentiary hearing

can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3

Cir. 12/9/09), 25 So.3d 1012.

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Assignment of Error No. 3: Reconsideration of Sentence

Defendant contends the trial court erred when it denied Defendant’s request
for reconsideration of his sentence as untimely because it was filed thirty days after
sentencing. Having previously vacated the sentences imposed on Defendant and
remanding for resentencing, with instructions, this assignment of error is rendered
moot.

DECREE

For the reasons set forth herein, we affirm the convictions of Defendant,
Prince Record, but vacate the sentences imposed, and remand to the trial court for
resentencing to apply the provisions of La.R.S. 15:529.1 in effect at the time of the
commission of the offense.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED FOR RESENTENCING

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