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State v. Burse

Court of Appeal of Louisiana, Fifth Circuit

March 25, 2015

STATE OF LOUISIANA
v.
JOSHUA BURSE

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-6152, DIVISION "O". HONORABLE ROSS P. LADART, JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, TERRY M. BOUDREAUX, ANDREA F. LONG, ANGEL VARNADO, ABRAHAM HAMILTON, III, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

BRUCE G. WHITTAKER, ATTORNEY AT LAW, Louisiana Appellate Project, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

JOSHUA A. BURSE, In Proper Person, Angola, Louisiana, DEFENDANT/APPELLANT.

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg.

OPINION

FREDERICKA HOMBERG WICKER, J.

Page 650

[14-564 La.App. 5 Cir. 2] Appellant, Joshua Burse, appeals his convictions and sentences following a

Page 651

twelve-person jury trial. On appeal, Mr. Burse argues his convictions should be reversed for two reasons. First, Mr. Burse argues that the trial court erred in denying his challenges for cause with respect to four prospective jurors and, second, that the trial court committed reversible error by trying him before a gender-biased jury. For the reasons that follow, we find that the trial court did not err in denying Mr. Burse's challenges for cause. Further, we find that Mr. Burse's failure to object to the alleged gender bias of his jury at trial precludes our consideration of the issue on appeal. Accordingly, Mr. Burse's convictions and sentences are affirmed.

FACTUAL AND PROCEDURAL HISTORY

On January 31, 2013, Mr. Burse was indicted with one count of aggravated rape upon a juvenile victim under the age of thirteen, in violation of La. R.S. [14-564 La.App. 5 Cir. 3] 14:42, and one count of sexual battery upon a juvenile victim under the age of thirteen, in violation of La. R.S. 14:43.1. Both charges stem from Mr. Burse's conduct with the victim in this case, A.L.

The case subsequently proceeded to trial before a twelve-person jury. At trial, A.L.'s mother, L.D., testified as a witness for the prosecution.[1] L.D. testified that A.L. was born in 2005 and is one of her five children. L.D. stated that she and Mr. Burse were previously involved in a romantic relationship, and Mr. Burse is the father of her youngest child. According to L.D., on August 23, 2012, Mr. Burse came to her house to visit their son. L.D. explained that she left Mr. Burse alone with their son in the kitchen while she went into one of the bedrooms. While in the bedroom, L.D. called several times for her daughter, A.L., who did not respond. L.D. testified that she began looking for A.L., who suddenly ran from the kitchen. L.D. testified that she noticed the lights were off in the kitchen and Mr. Burse's clothing was disheveled. According to L.D., Mr. Burse " couldn't give [her] a straight answer" about what he was doing with A.L. in the kitchen with the lights off. Ultimately, A.L. told her that " she was playing with [Mr. Burse's] butt in the kitchen." L.D. testified that she subsequently took A.L. to the hospital to be examined and also had her speak to the police.

As described by L.D., A.L. was taken to the West Jefferson Medical Center the following day. Dr. Athena Lefort, a pediatrician at West Jefferson Medical Center, testified that she examined A.L. on August 24, 2012 and that A.L. told her that Mr. Burse told her to " play with his private parts [and] stated that he put his penis in her mouth and peed in her mouth and that he touched her butt . . . point[ing] to her gluteus maximus." Dr. Lefort reported the incident to the police.

[14-564 La.App. 5 Cir. 4] Detective Brett Taylor testified that he responded to West Jefferson Medical Center to investigate a reported incident of sexual abuse. After speaking with L.D. about the report, Detective Taylor spoke to A.L. who described two separate incidences of Mr. Burse engaging in sexual contact with her. The next day, Detective Taylor set up an interview for A.L. with the Children's Advocacy Center (" CAC" ) and referred her to a doctor at the Care Center. Detective Taylor testified that he

Page 652

monitored the CAC interview from a separate room, and, subsequent to the interview, Detective Taylor prepared an arrest warrant for defendant.

Dr. Jackson, an expert in the field of child abuse pediatrics, testified that A.L. was referred to her by Detective Taylor. She testified that when she spoke to A.L. she provided a " very detailed" statement indicative of sexual abuse. In Dr. Jackson's opinion, the history given by A.L. was consistent with a child who has been sexually abused. Dr. Jackson based this opinion on the " abundance of details of information that a child her age should not be aware of . . . ."

At the time of trial, A.L. testified that she was nine years old. She explained that at first, she did not tell her mother about the " bad things" Mr. Burse did to her because she was scared. She stated that Mr. Burse told her that if she told anyone she would " get in trouble." She testified that when her mother asked her, she told her about the " bad things" Mr. Burse did to her. The CAC videotape of the interview conducted with A.L. was identified and played for the jury. At the conclusion of the video, A.L. confirmed that she told the truth during the interview.

Mr. Burse testified that he did not know why A.L. was making allegations of sexual abuse against him. Mr. Burse stated that he " would never" and " could never" do the things he was accused of. At the conclusion of trial, the jury returned a verdict of guilty as charged on both counts. The trial court subsequently sentenced Mr. Burse to life imprisonment without the benefit for probation, parole, [14-564 La.App. 5 Cir. 5] or suspension of sentence on count one, and 25 years at hard labor without benefit of probation, parole, or suspension of sentence on count two. This timely appeal follows.

DISCUSSION

In his first assignment of error, Mr. Burse argues that the trial court erred in denying defense counsel's challenges for cause with respect to four jurors, S.C., J.R., R.G., and D.F. Specifically, Mr. Burse contends that his challenge for cause with respect to prospective juror S.C. should have been granted because, as a teacher with experience supervising children who were victims of sexual and physical abuse, she would be biased towards the juvenile victim in the case and therefore could not perform as a fair and impartial juror. With regard to J.R., R.G., and D.F., Mr. Burse argues that, as victims of sexual abuse, they also lacked the ability to be fair and impartial jurors in this case. For the reasons that follow, we find that the trial court did not err in denying Mr. Burse's challenges for cause with regard to S.C., J.R., R.G., and D.F.

Mr. Burse also alleges, in a pro-se supplemental brief, that the trial court committed reversible error by allowing him to be tried before a gender-biased jury. Mr. Burse cites the fact that the voir dire transcript indicates that there were eleven women and one man selected to serve on the jury as evidence that the jury was gender-biased. For the reasons that follow, we find that Mr. Burse's assertion of gender discrimination was not presented to the trial court, and is therefore not properly before this Court on appeal. Accordingly, Mr. Burse's convictions are affirmed.

Assignment of Error Number 1

Mr. Burse asserts on appeal that his Sixth Amendment right to an impartial jury was violated by the trial court when the trial court denied his challenges for [14-564 La.App. 5 Cir. 6] cause as to prospective jurors S.C., J.R., R.G., and D.F. The Sixth Amendment to the United States Constitution guarantees the accused the right to trial by an impartial

Page 653

jury. State v. Munson, 12-327 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, 12, writ denied, 13-1083 (La. 11/22/13), 115 So.3d 6. Further, La. Const. Art. I, § 17 guarantees the accused the right to full voir dire examination of prospective jurors and the right to challenge those jurors peremptorily. A trial court's erroneous ruling depriving a defendant of a peremptory challenge substantially violates that defendant's rights and constitutes reversible error. State v. Lindsey, 06-255, p. 2 (La. 1/17/07), 948 So.2d ...


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