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State v. Jack

Court of Appeals of Louisiana, Third Circuit

May 2, 2018

STATE OF LOUISIANA
v.
ANTHONY JACK AKA ANTHONY KWONSKIEE JACK

          APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 98288-F HONORABLE CHUCK R. WEST, DISTRICT JUDGE

          Edward K. Bauman Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Anthony Jack

          Trent Brignac District Attorney Julhelene E. Jackson Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

          MARC T. AMY, JUDGE

         After a deputy was dispatched to a residence, the State charged the defendant with one count of resisting an officer with force or violence and one count of aggravated battery. Following jury selection, one of the jurors notified the court that she was related to the defendant's grandmother, and the trial court excused the juror and replaced her with an alternate. The defendant moved for a mistrial, which was denied, and the jury ultimately convicted the defendant as charged. The defendant now appeals. For the following reasons, we affirm.

         Factual and Procedural Background

         After being dispatched to a residence in reference to an "Unauthorized Use complaint, " Deputy Joshua Uhlman of the Evangeline Parish Sheriff's Office included, in pertinent part, the following narrative in his complaint report:

Upon arrival I spoke to Mr. Julius Thomas who stated that his girlfriend's grandson Anthony Jack took his car without permission but pulled back up in the car before my arrival. . . .
I then turned to Anthony, who was standing on the side of the yard and advised him to come see I need to talk to him. He then put up his hands in a fighting position and kept saying "I will whip your ass". I advised him to stand down and to place his hands behind his back but he took off running. I then gave chase on foot and radioed into dispatch to send another unit. While running, Anthony picked up a glass bottle that was lying in a yard and threw it towards me. I was able to move out the way of the bottle. The foot chase then continued into a yard . . . and that is when Anthony picked up a long board and swung it towards me hitting me in my left side of my chest with it causing me to fall backwards. Anthony then came towards me with the board while I was on the ground and attempted to hit me in my head with the board. I then drew my service weapon and aimed it at Anthony and gave the verbal command to drop the board. Anthony complied with the order and I was able to get back up and I re holstered my service weapon and pulled out my impact baton and gave the verbal command to stop resisting and get on the ground. Anthony refused and took a swing at me with a closed fist. He missed then stated "I will shoot you" and picked up his right hand and made a gun gesture towards me. I then swung my impact baton striking him . . . and he took off running again. I then gave chase again and was able to catch up to him. Anthony then stopped and attempted to swing at me with a closed fist again but missed. I then gave the command to stop resisting but he refused to comply. I then struck Anthony . . . and that is when [Deputy] Kent Vidrine arrived to assist. Anthony was still resisting and [Deputy] Vidrine administered a short 2 second burst of Pepper Spray. At this point [Deputy] Joshua Estes also arrived and Anthony was taken into custody.
Anthony Jack was transported to the Evangeline Parish Jail by [Deputy] Estes. While in transport to the jail, Anthony spit on [Deputy] Estes in the patrol unit and started to fight with [Deputy] Estes in the patrol unit.

         On March 10, 2014, the State filed a bill of information by which the defendant, Anthony Jack, was charged with two counts of resisting an officer with force or violence; two counts of aggravated battery; and one count of aggravated assault. Subsequently, the bill of information was amended three times.[1] The third bill of information, upon which the State proceeded to trial, charged the defendant with one count of resisting an officer with force or violence, a violation of La.R.S. 14:108.2(A)(3), and one count of aggravated battery, a violation of La.R.S. 14:34. The defendant pled not guilty, and a jury trial began on April 3, 2017.

         On April 4, 2017, on day two of the trial, Juror #1, Elizabeth Bellard, approached the bailiff about some concerns she had. Referring to the defendant's grandmother, whom she said she had observed in the courtroom, Ms. Bellard notified the trial court: "I know the lady . . . [my brother, my sister, and I] call her Aunt Annie." When asked whether she knew the defendant and whether she knew if she was related to the defendant, Ms. Bellard answered, "I don't know him" and "I don't [know] but if that's his grandmother then we['re] related." The trial court followed up by asking Ms. Bellard whether that would affect her ability to be fair and impartial to which she responded, "Yes it will." The trial court instructed Ms. Bellard not to speak to the other jurors while the court and the attorneys discussed the matter.

         Subsequently, Juror #5, Rebecca Fontenot, was interviewed by the court and explained that Ms. Bellard is her aunt. Ms. Fontenot indicated that Ms. Bellard had just told her about Ms. Bellard's relationship to the defendant's grandmother. When asked whether she was related to the defendant's grandmother or the defendant, Ms. Fontenot responded: "I've never seen her or him before." The trial court asked Ms. Fontenot whether this affected her ability to be fair and impartial, and Ms. Fontenot answered, "no." Additionally, the trial court asked Ms. Fontenot if she could judge the case strictly based on the evidence and if she would be fair to both sides, to which she responded, "Yeah."

         Following Ms. Bellard's revelation, defense counsel stated:

I would have picked my jury differently if I would have known she would have been challenged for cause. Okay it changed the way I used my back strikes . . . changed the makeup of the jury. I tried to make the makeup as close to the actual community[.]
. . . .
[Mr. Jack] deserves [a] jury of his peers[.]

         In particular, defense counsel argued that to remove Ms. Bellard from the jury and replace her with the alternate would change the racial composition of the jury. However, citing Ms. Bellard's testimony that she could not be fair and impartial, the trial court notified the parties of its decision to excuse Ms. Bellard from the jury and replace her with the alternate juror. Defense counsel objected, asserting: "[W]e feel that we have ...


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