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State v. Broussard

Court of Appeals of Louisiana, Third Circuit

June 13, 2017

STATE OF LOUISIANA
v.
MARK ANTHONY BROUSSARD

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 24832-12 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

          Julie Christine Tizzard Attorney at Law COUNSEL FOR DEFENDANT- APPELLANT: Mark Anthony Broussard

          John Foster DeRosier District Attorney, Fourteenth Judicial District Court Elizabeth Brooks Hollins Karen C. McLellan Jacob L. Johnson Cynthia Killingsworth Carla S. Sigler Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          ELIZABETH A. PICKETT JUDGE

         FACTS

         Between July 1, 1986, and September 6, 1988, the defendant, Mark Anthony Broussard, who was a priest in Lake Charles, Louisiana, had anal sexual intercourse with one of the altar boys in the church. The victim, J.A., was between eleven and twelve years old when the offenses occurred.[1]

         Between September 6, 1988, and July 1, 1991, the defendant fondled the genitals of L.N., who was an altar boy. The defendant performed oral sexual acts on the victim and caused the victim to perform oral sexual acts. The defendant also had anal intercourse with L.N. The victim was between ten and thirteen years old when the offenses were committed.

         The defendant was indicted on August 9, 2012, with two counts of aggravated rape, violations of La.R.S. 14:42, molestation of a juvenile, a violation of La.R.S. 14:81.2, aggravated oral sexual battery, a violation of La.R.S. 14:43.4, and oral sexual battery, a violation of La.R.S. 14:43.3.[2]

         On January 8, 2013, the defendant filed a "Motion to Suppress Statement." A hearing on the motion was held on April 24, 2013. The trial court took the motion under advisement. On May 1, 2013, the trial court denied the defendant's motion to suppress in open court with reasons.

         On March 7, 2013, the state filed a "Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, or Acts." On September 16, 2015, the state filed a "Supplement Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, or Acts." On September 13, 2013, the defendant filed a "Motion in Limine" in response to the state's filing of the notice of intent to introduce similar crimes, wrongs, or acts at trial, seeking to include that evidence. In response to the the defendant's motion in limine, the state filed "State's Response to the Defendant's Motion for Pretrial Disclosure of Evidence of Independent and Separate Offenses, Wrongs, or Acts and Pretrial Hearing, " and "State's Response to the Defendant's Motion in Limine." On June 25, 2015, the trial court denied the defendant's motion in limine in open court.

         On September 13, 2013, the defendant also filed a "Motion to Redact Videotaped Statement and to Prohibit Introduction of or Reference to Crime not Subject to Indictment." The state filed "State's Response to Defense Redactions to Statement of the Accused." On January 25, 2016, the morning trial commenced, the defendant, the state, and the trial court addressed the defendant's motion to redact. During the proceeding, the defendant objected to several of the trial court's refusals to redact certain portions of the defendant's videotaped statement to the police.

         Trial commenced on January 25, 2016, and on February 5, 2016, the defendant was found guilty as charged. The defendant was sentenced on March 11, 2016, to two life sentences at hard labor, without the possibility of parole, probation, or suspension of sentence on the convictions for aggravated rape; fifteen years at hard labor on the conviction for molestation of a juvenile; fifteen years at hard labor on the conviction for oral sexual battery; and twenty-five years on the conviction of aggravated oral sexual battery. All the sentences were ordered to be served consecutively, with credit for time served.

         The defendant filed a "Motion to Reconsider Sentence" on April 8, 2016. The motion to reconsider the sentence was denied without a hearing.

         ASSIGNMENTS OF ERROR

         The defendant has perfected a timely appeal, wherein he alleges four assignments of error:

1. The court erred when it denied a challenge for cause of a prospective juror.
2. The court erred when it denied the motion to suppress based on Defendant's invocation of right to counsel.
3. The court erred when it denied Defendant's motion in limine to exclude other crimes evidence under La.Code Evid. art. 404(B) in purview of La.Code Evid. art. 412.2, more particularly, evidence of the previously quashed counts.
4. The court erred when it denied, in part, Defendant's motion to redact the transcription of the videotaped statement and to prohibit the introduction of or reference to crimes not subject to indictment.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

         ASSIGNMENT OF ERROR NUMBER ONE

         The defendant asserts that the trial court erred when it denied his challenge for cause of a potential juror who had revealed that she was raped as a child by two uncles. The defendant argues that although the prospective juror indicated that she could remain impartial, her responses during voir dire showed bias, prejudice, or inability to render a judgment according to the law.

         In State v. Lewis, 12-1021, pp. 9-11 (La. 3/19/13), 112 So.3d 796, 801-02 (footnote omitted), the supreme court stated:

The peremptory challenge occupies an important role in the jury selection process. By enabling each side to exclude those jurors it perceives as harboring subtle biases with regard to the case which were not elicited on voir dire or which do not establish legal cause for a challenge, peremptory challenges are a means of " 'eliminat[ing] extremes of partiality on both sides, '. . .thereby 'assuring the selection of a qualified and unbiased jury.' " Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While peremptory challenges are one means of assuring the selection of a qualified and unbiased jury, the U.S. Supreme Court has determined that an erroneous ruling denying a peremptory challenge is not, as a matter of federal constitutional law, a structural error requiring automatic reversal of a defendant's conviction. Rivera v. Illinois, 556 U.S. 148, 160-61, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Rather, state law determines the consequences when a peremptory challenge is erroneously denied. Id. at 161-62, 129 S.Ct. 1446. As the Court explained in Rivera, "[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern . . . [but] a matter for the State to address under its own laws." Id.
In Louisiana, the peremptory challenge is protected by and preserved in the constitution. La. Const. art. I, § 17 ("The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law"). While the exercise of a peremptory challenge is provided through legislation, La.C.Cr.P. arts. 795, 799, and 799.1, it is not merely a statutory right. Thus, this court has long recognized that when a defendant is forced to utilize a peremptory challenge to correct a district court's error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution, is affected. State v. Monroe, 366 So.2d 1345, 1347 (La.1978). In such instances, prejudice is presumed. Id.; State v. Juniors, 2003-2425, p. 8 (La.6/29/05), 915 So.2d 291, 305.

         Louisiana jurisprudence holds that trial courts have wide discretion in determining whether to reject a juror for cause, and those determinations cannot be disturbed absent an abuse of discretion. State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906 (1986). A review of the record indicates that the defendant used all twelve of his peremptory challenges prior to the full complement of the jury. La.Code Crim.P. art. 799.1. Accordingly, if the challenge for cause was wrongfully denied in the current case, prejudice is presumed. See State v. Blank, 04-204 (La. 4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494 (2007).

         In a third circuit case, State v. Hamilton, 12-204, pp. 4-5 (La.App. 3 Cir. 11/20/13), 127 So.3d 76, 79-80, writ denied, 13-2925 (La. 5/30/14), 140 So.3d 1173, this court discussed issues of a trial court's denial of challenges for cause, as follows:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the trial judge abused its discretion….
"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 implied." However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate "(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges." In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.

State v. Odenbaugh, 10-268, pp. 23-25 (La.12/6/11), 82 So.3d 215, 236-37, cert. denied, __ U.S. __, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (citations omitted).

         According to La.Code Crim.P. art. 797, the State or Defendant may challenge a prospective juror for cause on the ground that:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The 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;
(4) The juror will not accept the law as given to him by the court.

         In Odenbaugh, 82 So.3d at 238 (citations omitted), the supreme court further stated:

[W]hile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror's responses cannot be considered in isolation and that a challenge 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]."

         Following the state's voir dire of the prospective juror, the defense revealed that on the prospective juror's jury questionnaire, A.D.[3] stated that she had been raped by two of her uncles when she was a child. In brief, the defendant argues that her responses given during voir dire indicated that she was angry "over her perceived lack of justice that occurred when two uncles that purportedly raped her over a number of years were not prosecuted."

         The state, defense counsel, and the trial court questioned the juror away from the jury pool. The juror explained that both she and her sister were raped by two of their uncles. She stated that the sexual abuse stopped when she and her sister complained to their mother. Even though a complaint was filed and the two sisters' statements were taken, one uncle, as soon as he was told of the accusations, fled the state. She explained that her sister then refused to concur with the accusation against the second uncle, and the matter was dropped. The prospective juror told the trial court she received extensive counseling that lasted for several years. She insisted that she had moved on; she was married, had two children, and worked full time. While she said she was mad back then, "but now it's - - it's been so long ago."

         Defense counsel questioned Ms. [A.D.], as follows:

MR. T. LORENZI: Ms. [A.D.], if you were in my position knowing that I represent Mr. Broussard and knowing what he's charged with, you've been here ...

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