Opinion
2013 KA 0172
2013-09-17
STATE OF LOUISIANA v. JAMES JOSEPH HEBERT
Joseph L. Waitz, Jr. District Attorney And Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Attorneys for Appellee State of Louisiana Bertha M. Hillman Thibodeaux, Louisiana Attorney for Defendant/Appellant James Joseph Hebert
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF TERREBONNE
STATE OF LOUISIANA
DOCKET NUMBER 603328
HONORABLE GEORGE J. LARKE, JR., JUDGE
Joseph L. Waitz, Jr.
District Attorney
And
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
Attorneys for Appellee
State of Louisiana
Bertha M. Hillman
Thibodeaux, Louisiana
Attorney for Defendant/Appellant
James Joseph Hebert
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
McDONALD, J.
The defendant, James Joseph Hebert, was charged by grand jury indictment with one count of aggravated rape, a violation of La. R.S. 14:42(A)(4), and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, contending the trial court erred in denying a defense challenge for cause. For the following reasons, we affirm the conviction and sentence.
FACTS
The victim, C.L., as well as other victims of the defendant, testified at trial. She said that her date of birth was November 12, 1999. The defendant was her stepfather. The victim testified that during the summer of 2010, the defendant had her put her hand on his private and squeezed his private. She also indicated the defendant put his mouth or tongue on her private and licked her. Additionally, she stated the defendant put a condom on his private part and put it in her private part.
The victims are referenced herein only by their initials. See La. R.S, 46:1844(W).
The State also played the victim's statement to the Child Advocacy Center, recorded on July 14, 2011. The victim indicated she was eleven years old and had come to talk about her stepdad, the defendant, molesting her. Her mother worked as a cashier at Wal-Mart from 10:00 p.m. until 7:00 a.m., and the incidents occurred after she left for work. The victim stated the defendant had DVDs of people having sex and "boob" magazines in a bag in her room. She indicated she had watched the movies and looked at the magazines with the defendant. She stated the incidents began with the defendant asking her if she "wanted to do it for him?" This was his way of asking her to "squeeze his dick." She indicated she wanted the defendant to lick her, but then told him to stop because it made her feel bad. Fie also asked to lick her "down there." He had licked her "pussy" three times. Additionally, the defendant had rubbed the victim "in [her] pussy" with his fingers on two occasions. The victim indicated the defendant had "rubbed his dick in [her] a little bit because [she] wanted to know what it felt like." This happened on one occasion and the defendant had "white stuff in the condom he was wearing. The defendant told the victim not to tell anyone what he had done to her.
The defendant did not testify at trial. The State, however, played his statement concerning the offense, recorded on July 14, 2011. The defendant stated he watched pornography with the victim in November of 2010. He indicated he had licked the victim's vagina, at her request, on two occasions during the weekend before July 14, 2011. He stated the victim had masturbated him while he wore a condom. He indicated he "might have" touched the victim's clitoris with his fingers. He also indicated the victim had rubbed his penis on the outside of her vagina. He denied penetrating the victim's vagina with his penis.
Additionally, Dawn Buquet testified she was a forensic interviewer and investigator for the Terrebonne Children's Advocacy Center. On November 14, 2002, the defendant told Buquet that he had "sexually inappropriate behavior" with at least three girls ages 8, 11, and 15 years old. Thereafter, the defendant was arrested for sexual battery on K.M.
T.D. testified she was the niece of the defendant. She indicated, when she was 10 or 11 years old, she had found the defendant "messing around under [her] blankets." The defendant also asked her whether she had noticed if her friends were growing hair in their private areas.
L.G. testified she was the cousin of the defendant. She indicated, when she was in the first grade, the defendant asked her whether he could touch her privates, and she told him no. He also begged her to "touch him," and pulled down his pants to show her his pubic hair.
K.M. testified the defendant was related to her mother's sister. She indicated, when she was approximately 10 years old, the defendant rubbed her leg and touched her private area.
CHALLENGE FOR CAUSE
In his sole assignment of error, the defendant argues the trial court erred in denying the defense challenge for cause against prospective juror Rosalie Trahan because her granddaughter had been sexually abused.
The State or the defendant may challenge a juror for cause on the ground that 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. La. Code Crim. P. art. 797(2). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may be inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Henderson, 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 754, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.
In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. Prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Taylor, 03-1834 (La. 5/25/04), 875 So.2d 58, 62.
The rule is different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).
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A trial judge's refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Taylor, 875 So.2d at 63.
Rosalie M. Trahan was on the second panel of prospective jurors. During voir dire, she indicated her granddaughter had been molested by her stepfather. In response to questioning from the trial court, Trahan indicated the incident would affect her ability to be fair and impartial in the case. The court asked whether she could follow an instruction to put the incident involving her granddaughter aside and realize it has nothing to do with the instant case. Trahan replied, "I think I would have a hard time." The court asked her if she would be prejudiced against the defendant. She replied, "Not say prejudiced; I'd just - I guess because it happened in my family. 1 would just have a hard time, you know, just[.]" The court asked Trahan if she realized the fact that someone was charged with a crime did not mean they were guilty of the crime. She replied, "Right. But, I mean, if I would have to come, I would have to just put things aside. You know, I - I would probably try to put the things aside."
In response to questioning by the State, Trahan indicated she would not find the defendant guilty just because of the incident involving her granddaughter. She also indicated she would base her decision on the evidence in the case and not on what had happened to her granddaughter. She agreed that she would have to set aside the incident involving her granddaughter and decide the instant case on the basis of the evidence from the witness stand and what she heard, saw, and evaluated from the witness stand. She also agreed that if the defendant was guilty, she would find him guilty; but if he was not guilty, she would also find him not guilty "no matter what happened in [her] family." The defense asked Trahan, "if you were compelled to be on this jury, you would not be unaffected by what happened to your grand-daughter?'' Trahan replied, "No." The defense also asked her if she realized there were questions of degree, and did she think, based on what she had experienced in her own family, she would have difficulty deciding whether or not a witness was telling the truth or shading the truth or lying or exaggerating the truth. Trahan replied, "No, because the defendant is not a family member. I mean, its like - I don't know how 1 want to say this because I'm kind of nervous and a lot of this just brings things up because we're still going through all that." Thereafter, the defense asked, "My question is: Could you be fair to someone who is accused of molesting his stepdaughter?" Trahan replied, "No."
The court further questioned Trahan as follows:
[Court]: Ma'am, let me ask you this. But can you in this particular case, can you sit here and listen to the evidence, determine whether all the elements of the crime are proven by the testimony and determine guilt or innocence? Can you do that and be fair and impartial to both sides?
[Trahan]: I think so, yes.
[Court]: And put - And put together Put your, your, your -
[Trahan]: Right.
[Court]: -grand-daughter's case out of your, and realize it has nothing to do with this case? You can be fair and impartial to both sides?
[Trahan]: Yes.
The State further questioned Trahan, "What he's asking, ma'am, can you be fair in this case? No matter what the facts may come to be, can you look at him in a fair way, for both sides, and decide guilt or not guilty in an unbias, fair way?" Trahan replied, "Yes."
The defense further questioned Trahan if she was saying she could be fair even if the alleged perpetrator was a father and the alleged victim was a stepdaughter. Trahan replied, "Yes."
The defense challenged Trahan for cause on the basis that her granddaughter had been molested by her son-in-law. The State argued that when Trahan understood the question, she clearly stated she could be fair and impartial. The court dented the challenge for cause, noting Trahan had been initially confused by the defense questions, but had then indicated she could be fair and impartial. The defense objected to the denial of the challenge for cause and used its ninth peremptory challenge against Trahan before exhausting all of its peremptory challenges.
The trial court did not abuse its broad discretion in denying the challenge for cause against Trahan. The challenged prospective juror demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.
This assignment of error is without merit.