State of Louisiana v. Erick Gail Gragg

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-799

STATE OF LOUISIANA

VERSUS

ERICK GAIL GRAGG

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 21827-15
HONORABLE DAVID ALEXANDER RITCHIE, JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Shannon J. Gremillion, Charles G. Fitzgerald, and Gary J. Ortego,
Judges.

REMANDED WITH INSTRUCTIONS.

Paula C. Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, Louisiana 70598-2389
(337) 991-9757
Counsel for Defendant/Appellant:
Erick Gail Gragg

Steven C. Dwight
District Attorney
David S. Pipes
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

FITZGERALD, Judge.

Defendant, Erick G. Gragg, appeals his conviction and sentence for

aggravated crime against nature.

PROCEDURAL HISTORY

On September 3, 2015, Defendant was charged by Bill of Information with

one count of crime against nature, a violation of La.R.S. 14:89, and one count of

aggravated crime against nature, a violation of La.R.S. 14:89.1. While the charge of

crime against nature was nolle prossed by the State, the charge of aggravated crime

against nature proceeded to jury trial in October 2017. However, on October 27,

2017, the trial court declared a mistrial due to the inability of the jury to reach a

verdict.

One year later, in October 2018, Defendant’s second trial on the charge of

aggravated crime against nature commenced with jury selection. This time, on

October 19, 2018, a twelve-person jury unanimously found Defendant guilty of this

offense.

Defendant, in turn, filed a motion for new trial. The trial court denied the

motion in February 2019. Shortly thereafter, the trial court sentenced Defendant to

thirty-five years at hard labor. However, in April 2019, the trial court held a hearing

on its own motion to clarify Defendant’s sentence, noting that the original sentence

was indeterminate as to the time that would be served without benefits. 1 The trial

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The court minutes erroneously indicate that Defendant was sentenced to thirty-five years
at hard labor with “twenty five (25) years to be served without benefit of probation, parole or
suspension of sentence, with credit for time served.” However, the trial transcript is silent as to
the quoted language. It is well settled that when there is a conflict between the transcript and court
minutes, the transcript prevails. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,
writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

court ultimately resentenced Defendant to thirty-five years at hard labor without the

benefit of parole, probation, or suspension of sentence.

Defendant now appeals his conviction and sentence, asserting five

assignments of error:

1. The trial court erred in denying defense counsel’s challenge for
cause of prospective juror Michael Rushing.

2. The trial court erred when it refused to strike juror Michael Rushing
for cause after his responses showed he was biased and unable to
follow the law. To the extent that this was not preserved at trial, this
court should review and grant relief under the rubric of ineffective
assistance of counsel.

3. Defendant has been denied his constitutional right to review on
appeal due to the failure of the court reporter to identify which
prospective juror is speaking during voir dire.

4. The indictment does not allege an offense committed when the
victim was under the age of thirteen. Thus, the sentence imposed by
the trial court violates Defendant’s right to due process, as well as
the Eighth Amendment of the Constitution of the United States and
La.Const. Art. I, § 20, as it is illegally excessive, in that it exceeds
the maximum sentence provided for the crime charged in the
indictment.

5. The trial court erred in admitting State Exhibit S-1, the audio-visual
recording of the victim’s interview.

LAW AND ANALYSIS

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, we review appeals for errors

patent on the face of the record. After reviewing the record, we find no errors patent.

II. Defendant’s Third Assignment of Error

For the reasons given below, our review is limited to Defendant’s third

assignment of error.

In his third assignment of error, Defendant asserts that he was denied his

constitutional right to appellate review because of the court reporter’s failure to

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identify the prospective jurors who were speaking during voir dire. In an effort to

remedy the situation, we requested from the trial court a supplemental transcript of

voir dire. While most of the prospective jurors were identified in the supplemental

transcript, the prospective juror who said, “I can’t give [Defendant] a fair trial,”

remained unidentified.

Thus, we issued a second order to the trial court, this time requiring that the

court reporter review the voir dire audio recording and provide either an affidavit

attesting that she is unable to identify the prospective juror or produce a second

supplemental transcript. In response, this court received an affidavit from the court

reporter verifying that she listened to the audio recording and could not identify the

prospective juror.

Defendant asserts that the lack of identification of the prospective juror is a

material and prejudicial omission from the transcript which requires reversal. After

all, the prospective juror unequivocally stated his or her inability to be fair and

impartial. 2

Defendant further asserts that the identification could provide additional

support for his first two assignments of error. For example, in his first assignment

of error, Defendant argues that the trial court erred in denying defense counsel’s

challenge for cause of prospective juror Michael Rushing because of his “hostility

to the facts” and inability to follow the law. Defendant speculates that the

unidentified prospective juror could be Michael Rushing, which would strengthen

his claim that the trial court erred in denying the challenge for cause.

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At the time of this statement, Defendant had already used all twelve of his allotted
peremptory challenges under La.Code Crim.P. art. 799.

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In State v. Landry, 97-499, pp. 2-3 (La. 6/29/99), 751 So.2d 214, 215-16

(footnote omitted), the Louisiana Supreme Court addressed a criminal defendant’s

right to a complete transcript, explaining as follows:

We have reversed convictions when material portions of the
transcript were either incomplete or unavailable. In State v. Ford, 338
So.2d 107, 110 (La.1976), a second-degree murder conviction in which
appellate counsel did not serve as trial counsel and the court reporter
failed to record the testimony of four state witnesses, voir dire, and the
State’s opening statement, we held: “Without a complete record from
which a transcript for appeal may be prepared, a defendant’s right of
appellate review is rendered meaningless.” Similarly, in State v. Jones,
351 So.2d 1194 (La.1977), we held that the omission of a portion of the
hearing on a motion for change of venue was not an “inconsequential
omission” and required reversal because it was impossible to assess the
existence of community prejudice or to ascertain whether the evidence
supported the defendant’s contention that the motion was
improvidently denied. Again, in State v. Parker, 361 So.2d 226
(La.1978), reversal was required when the transcript of the closing
argument could not be prepared and defendant assigned as error the
State’s closing argument. Likewise, in State v. Rooney, 187 La. 256,
174 So. 348 (1937), we reversed defendant’s conviction and sentence,
finding that the transcript relative to defendant’s bill of exceptions was
so defective that it made presentation of an appeal impossible.

In the present case, as in Ford, we are faced with an appellate
counsel who did not serve as trial counsel. A criminal defendant has a
right to a complete transcript of the trial proceedings, particularly where
counsel on appeal was not counsel at trial. U.S. v. Atilus, 425 F.2d 816
(5 Cir.1970) citing Hardy v. U.S., 375 U.S. 277, 84 S.Ct. 424, 11
L.Ed.2d 331 (1964). “[W]here a defendant’s attorney is unable,
through no fault of his own, to review a substantial portion of the trial
record for errors so that he may properly perform his duty as appellate
counsel, the interests of justice require that a defendant be afforded a
new, fully recorded trial.” State v. Ford, 338 So.2d at 110.

From the outset, we are faced with assignments of error relative
to voir dire examination that we cannot resolve on the present record.
Although the State asserts there are no defense objections recorded
during jury selection, appellate counsel adroitly points to numerous
defense counsel remarks which were transcribed as, “I [INAUDIBLE].”
Furthermore, the record is replete with “(INAUDIBLE)” responses
during critical portions of voir dire which make it impossible to
ascertain why certain jurors were excluded. To worsen matters, not
only are questions shown as inaudible, but the record indicates that the
inaudible responses were made by unidentified jurors. . . . When we
consider that there were approximately forty jurors excluded for cause,

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there is almost nothing to justify the various exclusions because of the
incomplete record. Clearly, on the deficient record before us, we
cannot assure that no erroneous excuses for cause were made.

Like State v. Landry, appellate counsel here did not serve as Defendant’s trial

counsel; the missing portions of the record are not inconsequential; and we are

presented with assignments of error pertaining to voir dire examination that cannot

be resolved by reviewing the present record. Indeed, on the record before us, it is

impossible to determine whether the unidentified prospective juror was Michael

Rushing, as Defendant suggests, or someone else. Thus, it is impossible for this

court to determine whether Defendant was prejudiced by the prospective juror’s

statement that he was unable to give Defendant a fair trial. So, is reversal warranted?

If we follow the below jurisprudence, the answer is no.

For instance, in State v. Nanlal, 97-786 (La. 9/26/97), 701 So.2d 963, the

record was silent as to whether the defendant waived his right to a jury trial. Instead

of reversing the defendant’s felony conviction and sentence, the Louisiana Supreme

Court remanded the case to the trial court for an evidentiary hearing. As the supreme

court explained, “If the evidence shows that relator did not make a valid waiver of

his right to a jury trial, the district court must set aside his conviction and sentence

and grant him a new trial. Relator may appeal from any adverse ruling on the waiver

issue.” Id. at 964.

Under similar circumstances, this court in State v. Clark, 97-1064 (La.App. 3

Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental

filing, 98-1180 (La. 9/25/98), 726 So.2d 2, remanded the case to the trial court for

an evidentiary hearing, as opposed to reversing the defendant’s conviction and

sentence for first degree vehicular negligent injuring. The remand instructions given

by this court were as follows:

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(1) conduct an evidentiary hearing within thirty days of this date to
determine whether defendant knowingly and intelligently waived his
right to trial by jury and (2) re-lodge the appellate record, supplemented
with a transcript of the hearing, within fifteen days of the hearing. The
State and defendant will be given the opportunity to file supplemental
briefs, should either party wish to raise any issues arising from the
hearing.

Id. at 742.3

Here, too, we choose to remand with instructions instead of reversing

Defendant’s felony conviction and sentence. As noted above, Defendant has raised

several assignments of error related to voir dire, and the identification of the

prospective juror is consequential to each assignment. Under the present

circumstances, remand is a prudent safeguard of Defendant’s right to a meaningful

appellate review. In our view, allowing the parties to establish a record at an

evidentiary hearing and submit new briefs to this court with the developed facts will

best serve the interests of justice.

In sum, we remand the case to the trial court with instructions that the trial

court conduct an evidentiary hearing within thirty days to determine the identity of

the prospective juror who stated, “I can’t give [Defendant] a fair trial[.]” A new

appellate record containing the transcript of the hearing shall be lodged within fifteen

days of the hearing. The State and Defendant will then be given the opportunity to

file new briefs should either party wish to raise any issues arising from the hearing.

Thereafter, this court will issue another opinion addressing Defendant’s appeal of

his felony conviction and sentence, along with all issues pertinent thereto.

3
In State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, this court reached the
same conclusion: remand instead of reversal. See also State v. Arnold, 30,282 (La.App. 2 Cir.
1/21/98), 706 So.2d 578; and State v. James, 94-720 (La.App. 5 Cir. 5/30/95), 656 So.2d 746.

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DISPOSITION

This case is remanded to the trial court with instructions that the trial court

conduct an evidentiary hearing within thirty days to determine the identity of the

prospective juror who stated, “I can’t give [Defendant] a fair trial[.]” A new

appellate record containing the transcript of the hearing shall be lodged within fifteen

days of the hearing. The State and Defendant will then be given the opportunity to

file new briefs should either party wish to raise any issues arising from the hearing.

Thereafter, this court will issue another opinion addressing Defendant’s appeal of

his felony conviction and sentence, along with all issues pertinent thereto.

REMANDED WITH INSTRUCTIONS.

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