State v. Deville

349 So.3d 1158

STATE of Louisiana

v.Joey Ray DEVILLE

22-317

Court of Appeal of Louisiana, Third Circuit.

October 19, 2022

Bruce Gerard Whittaker, Capitol Defense Project, 829 Baronne Street, New Orleans, LA 70113, (504) 595-8965, COUNSEL FOR DEFENDANT/APPELLANT: Joey Ray Deville

Honorable J. Reed Walters, District Attorney, Twenty-Eighth Judicial District Attorney, P. O. Box 1940, Jena, LA 71342, (318) 992-8282, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Steven P. Kendrick, Assistant District Attorney, P. O. Box 1889, Jena, LA 71342, (318) 992-4107, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Court composed of Shannon J. Gremillion, D. Kent Savoie, and Sharon Darville Wilson, Judges.

WILSON, Judge.

A jury found Defendant, Joey Ray Deville, guilty of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. During voir dire, Mr. Deville raised a Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge of the State's back strike of a black potential juror which the trial court denied. Mr. Deville now appeals. For the reasons expressed below, we affirm the judgment of the trial court.

I.ISSUES

In this appeal we must decide whether the trial court erred in not finding the defense made a prima facie showing in the first step of the Batson challenge to the State's peremptory strike of Potential Juror Lucrettia Wallace.

II.FACTS AND PROCEDURAL HISTORY

In 2019, Mr. Deville was caught on camera trespassing at a hunting club in Lasalle Parish. The photo from the camera depicted Mr. Deville holding what appeared to be a rifle. A search warrant was obtained for Mr. Deville's residence on December 5, 2019. A .22 caliber rifle was found in a gun cabinet in a bedroom, and additional firearms were found in a refrigerator used as a gun cabinet in a nearby shed. On June 14, 2021, Mr. Deville was charged by bill of information with possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. Mr. Deville entered a plea of not guilty and proceeded to trial on November 16, 2021. At trial, Mr. Deville was found guilty as charged by a unanimous jury. Mr. Deville filed a motion for post-verdict judgment of acquittal. The motion was heard on January 25, 2022, and denied by the trial court. The same day, Mr. Deville was sentenced to twelve years at hard labor with the Department of Corrections. On January 18, 2022, Mr. Deville filed a motion to reconsider sentence which was denied by the trial court on May 3, 2022. Mr. Deville now appeals asserting a single assignment of error.

III.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 is one error patent. The record indicates that Mr. Deville was sentenced on the same day that his motion for post-verdict judgment of acquittal was denied. Louisiana Code of Criminal Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Article 873 does not specifically mention a motion for post-verdict judgment of acquittal, and there is some discrepancy among the courts as to whether the delay is required after denial of such a motion. This court has previously held that the lack of the delay is an error patent. See State v. Boyance , 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied , 06-1285 (La. 11/22/06), 942 So.2d 553. However, the court also found that the error was harmless since the defendant had not alleged any prejudice by the trial court's failure to delay sentencing and had not challenged the sentence on appeal. Id . In the instant case, Mr. Deville neither challenges the sentence imposed or claims he was prejudiced by the lack of delay. Thus, the error was harmless.

BATSON CHALLENGE

On appeal, Mr. Deville asserts that the trial court erred in not finding that he made a prima facie showing in the first step of the Batson challenge to the state's peremptory strike of Potential Juror Lucrettia Wallace. Mr. Deville argues that the trial court permitted the state to use a peremptory challenge to back-strike the only black juror from the panel without requiring the state to provide a race-neutral reason, and in so doing applied an incorrect legal standard. He submits the case only involves the first step of the Batson process because the court did not direct the State to give a race-neutral reason nor did the State provide such a reason. As such, he further argues that the record is insufficient to weigh the strength of the challenge, and the case should be reversed, and a new trial ordered.

The United States Supreme Court has held that the use of peremptory challenges to exclude potential jurors based upon their race violates the Equal Protection Clause. Batson , 476 U.S. 79, 106 S.Ct. 1712. The holding in Batson was adopted by the Louisiana Supreme Court in State v. Collier , 553 So.2d 815 (La.1989) and has been codified by the legislature in La.Code Crim.P. art. 795. When asserting a Batson challenge, the defendant must make a prima facie showing of discrimination in the use of the strike. If a prima facie case is established, the burden shifts to the opposite party to articulate a race-neutral explanation for the strike. The trial court must then determine whether the party challenging the strike has carried the ultimate burden of proving purposeful discrimination. See Batson , 476 U.S. 79, 106 S.Ct. 1712.

To establish a prima facie case, the defendant must show: (1) the prosecutor's challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venireperson on account of his being a member of that group. Id . For a Batson challenge to succeed, a racially discriminatory result alone is insufficient. Rather, the result must be traced to a racially discriminatory purpose. The sole focus of the Batson inquiry is the intent of the prosecutor at the time he exercised his peremptory strikes. Id.

In the instant case, the only issue before the court is whether defendant met his burden of proof under the first Batson factor and established a prima facie case of purposeful discrimination in the State's use of peremptory strikes. "If the trial court determines that the challenging party... failed to establish the threshold requirement of a prima facie case (step one), the analysis is at an end; and the burden of production is never shifted to the challenged attorney... to articulate neutral reasons (step two)." State v. Duncan , 99-2615, p. 12 (La. 10/16/01), 802 So.2d 533, 544 (footnote omitted).

The first two elements of a prima facie case are undisputed. The prosecutor's peremptory challenge was directed at a member of a cognizable racial group, African Americans, and the challenge was not for cause. Thus, the sole issue is whether Mr. Deville established sufficient circumstances to warrant an inference of a discriminatory purpose for the State's strike.

In discussing the factors considered for determining whether a defendant has made a prima facie case, the Louisiana Supreme Court has explained:

In Batson, the Court provided two illustrative examples of factors the trial court should consider in deciding whether a defendant has made the requisite showing. A "pattern" of strikes against a cognizable group of jurors in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising challenges may support or refute an inference of discriminatory purpose. Batson , 476 U.S. at 97, 106 S.Ct. at 1723. The Court did not formulate any particular requirements for determining whether a defendant established a prima facie case. Rather, the Court expressed confidence in the trial judges' ability to determine the establishment of a prima facie case. Id. Thus, the determination of the type and quantum of proof necessary to establish a prima facie case was left to the lower courts. Duncan , 802 So.2d at 545. However, the establishment of a prima facie case is not to be so onerous that a defendant would have to persuade the judge—on the basis of all the facts, some of which are impossible for the defendant to know with certainty—that the challenge was more likely than not the product of purposeful discrimination. Johnson v. California , 545 U.S. 162, 170, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005). A defendant satisfies Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination occurred. Id.

State v. Sparks , 88-17, p. 40 (La. 5/11/11), 68 So.3d 435, 470, cert. denied sub nom. El-Mumit v. Louisiana , 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

The first panel of twelve prospective jurors included Potential Juror Lucrettia Wallace, an African American. During voir dire, Ms. Wallace was asked biographical questions along with general questions asked to all prospective jurors seated at the time, and her responses were consistent with the rest of the group. The State directed a total of three questions to Ms. Wallace during the questioning of the first panel. The exchange went as follows:

THE STATE: Ms. Wallace, do you think it's fair that after someone has gone to trial, been to prison, served their time and got out, that for ten years they can't go hunting with their grandchild?

THE JUROR: No, it ain't fair but it's the law.

THE STATE: Should it be?

THE JUROR: Yeah.

The same question was then asked to other prospective jurors....