State v. Griffin

384 So.3d 352

2023-0360 (La.App. 1 Cir. 1/30/24)

STATE of Louisiana

v.Andre V. GRIFFIN

NO. 2023 KA 0360

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: January 30, 2024

Appealed from the 18th Judicial District Court, In and for the Parish of Pointe Coupee, State of Louisiana, Case No. 83, 366-F c/w 83, 365-F, The Honorable J. Kevin Kimball, Judge Presiding

Chad Aguillard, Kristen Canezaro, Nishant Bhushan, Ali Meronek, Assistant District Attorneys, New Roads, Louisiana, Terri Russo Lacy, Assistant District Attorney, Port Allen, Louisiana, Antonio M. "Tony" Clayton, District Attorney, Counsel for Plaintiffi/Appellee State of Louisiana

Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, Counsel for Defendant/Appellant Andre V. Griffin

BEFORE: GUIDRY, C.J, CHUTZ, AND LANIER, JJ.

LANIER, J.

₂The defendant, Andre Griffin, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1 (Count 1), one count of first degree feticide, a violation of La. R.S. 14:32.6 (Count 2), and one count of attempted second degree murder, a violation of La. R.S. 14:27 & La. R.S. 14:30.1 (Count 3). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on each count.¹ The trial court sentenced the defendant to life in prison without benefit of parole, probation, or suspension of sentence on count one, fif- teen years at hard labor on count two, and fifty years at hard labor without benefit of parole, probation, or suspension of sentence on count three, with each sentence to be served consecutively. The defendant now appeals, designating five assignments of error. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

On February 14, 2019, at 1:45 a.m., officers with the Pointe Coupee Parish Sheriff’s Office received a 911 call from Kendell Mingo regarding a drive-by shooting at 15134 Russell Lane. Mingo and his pregnant girlfriend, Aerial Edwards, were asleep in the living room when Mingo awoke to the sound of gunshots.² Four bullets were fired into the home, one of which struck Edwards in the abdomen, killing both her and her unborn child.

Officers learned through the course of them investigation that approximately a week prior to the shooting, Darion Springer stole Mingo’s gun, an AK-47. In response, Mingo’s brother threatened Springer and his family. Then, in the early morning hours of February 14, 2019, and in an effort to retaliate for the threats ₃made by Mingo’s brother, Springer, Treveon and Nicholas Robinson, Jericho Hamburg, and the defendant drove to Russell Lane to find Mingo. The defendant was driving, with Treveon Robinson in the front passenger seat, and Springer, Hamburg, and Nicholas Robinson in the back. When they saw Mingo’s car in the driveway, Springer, Treveon, and the defendant fired guns at the home. According to Springer, Treveon and the defendant fired multiple shots; however, his gun jammed when he attempted to fire it.

Pursuant to the investigation, officers issued arrest warrants for Treveon and Nicholas Robinson, Darion Springer, Jericho Hamburg, and the defendant for the murder of Edwards and the death of her unborn child, and the attempted murder of Mingo.

ASSIGNMENT OF ERROR ONE

In his first assignment of error, the defendant argues that the trial court erred in dismissing a juror based on his status as a convicted felon where current law limits disqualification to those jurors who were indicted, incarcerated, or on probation or parole for a felony offense within five years of the person’s jury service.

[1–3] An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors’ qualifications by testing their competency and impartiality and discovering bases for intelligent exercise of cause and peremptory challenges. State v. Mills, 2013-0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 486, writs denied, 2014-2027 (La. 5/22/15), 170 So.3d 982 and 2014-2269 (La. 9/18/15), 178 So.3d 139. The question of a juror’s qualifications is addressed to the sound discretion of the trial judge. Therefore, the trial court’s rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that ₄discretion. State v. Folse, 2018-0152 (La. App. 1st Cir. 9/21/18), — So.3d—, 2018 WL 4520465, *6, writ denied, 2018-1740 (La. 4/22/19), 268 So.3d 296.

La. Code Crim. P. art. 401 sets forth general juror qualifications with regard to citizenship, residence, age, ability, and criminal history. Prior to its amendment in 2021, Art. 401(A)(5) provided that, in order to qualify to serve as a juror, a person must "[n]ot be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor." See 2010 La. Acts No. 438, § 1. The statute was amended in August of 2021 and now provides:

A. In order to qualify to serve as a juror, a person shall meet all of the following requirements:

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(5) Not be under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony offense within the five-year period immediately preceding the person’s jury service.

La. Code Crim. P. art. 401(A)(5); 2021 La. Acts, No. 121, § 1.

[4] Trial commenced on March 28, 2022. During jury selection, the trial court read aloud the juror qualifications and in doing so, referenced the previous provision of Art. 401(A)(5). The trial court stated, "[y]ou must not be under indictment for a felony, nor have been convicted of a felony for which you have not been pardoned by the governor." Potential juror Joseph Stoute then told the court that over ten years prior, when he was nineteen, he was convicted of a felony and served two years of probation. The trial court discussed the recently revised qualification provisions, noting its understanding of the law was that a pardon was still required. The court then deferred the matter and refrained from dismissing Stoute at that point.

On appeal, the defendant contends that the record does not mention Stoute again, and that he seemed to have been dismissed from the jury based on the court’s erroneous statement of the current law. However, the record reflects otherwise. After the trial court’s discussion regarding juror qualifications, the ₅record shows that Stoute was then assigned to jury panel four. However, the parties never reached jury panel four during voir dire because a jury was selected and sworn from jury panels one, two, and three. Accordingly, although the trial court recited an outdated provision of juror qualifications under Art. 401(A)(5), the trial court nevertheless refrained dismissing Stoute. While the record is silent as to how this transpired, the record clearly shows that Stoute was appropriately placed on a jury panel and the defendant was not prejudiced by the trial court’s initial error. This assignment of error is without merit.

ASSIGNMENT OF ERROR TWO

In his second assignment of error, the defendant argues that the trial court erred in denying his motion to continue. Specifically, the defendant contends that he was entitled to a continuance after the State provided him with over one thousand pages of additional discovery three days before trial was set to commence.

[5–8] The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Elie, 2005-1569 (La. 7/10/06), 936 So.2d 791 802. Discovery procedures enable a defendant to properly assess the strength of the State’s case against him in order to prepare his defense. State v. Herron, 2003-2304 (La. App. 1st Cir. 5/14/04), 879 So.2d 778, 787. If a defendant is lulled into a misapprehension of the strength of the State’s case through a failure of the prosecution to timely or fully disclose and the defendant suffers prejudice, basic unfairness results that constitutes reversible error. State v. Harris, 2000-3459 (La. 2/26/02), 812 So.2d 612, 617. The State’s failure to comply with discovery requests does not constitute reversible error unless actual prejudice results to the defendant. State v. Selvage, 93-1435 (La. App. 1st Cir. 10/7/94), 644 So.2d 745, 750, writ denied, 94-2744 (La. 3/10/95), 650 So.2d 1174.

₆Regarding a motion to continue, La. Code of Crim. P. art. 707 provides:

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

[9, 10] The trial court has much discretion in deciding whether to grant or deny a motion for a continuance, and a reviewing court will not disturb such a determination absent a clear abuse of that discretion and a specific showing of prejudice caused by the denial. State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229; see also La. Code Crim. P. art. 712. The denial of a motion for continuance, which motion is based on the ground of counsel’s lack of preparedness, does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial or unless the preparation time is so minimal as to call into question the basic fairness of the proceeding. State v. Charrier, 2012-0245 (La. App. 1st Cir. 9/21/12), 2012 WL 4335920, *2 (unpublished), writ denied, 2012-2309 (La. 4/12/13), 111 So.3d 1018.

On March 25, 2022, three days prior to commencement of trial, the defendant received a significant amount of additional discovery from the State. This discovery included the fact that Hamburg would testify as...