Opinion
2015 KA 1615
04-15-2016
STATE OF LOUISIANA v. JASON WESLEY HOLCOMBE
Scott M. Perrilloux District Attorney Hammond, Louisiana and Charlotte H. Foster Assistant District Attorney Livingston, Louisiana Attorneys for Appellee State of Louisiana Bertha M. Hillman Covington, Louisiana Attorney for Defendant/Appellant Jason Wesley Holcombe Jason Holcombe Angola, Louisiana Pro Se
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA
DOCKET NUMBER 30,973, DIVISION B HONORABLE BRUCE C. BENNETT, JUDGE
HONORABLE JEFFREY S. JOHNSON, JUDGE Scott M. Perrilloux
District Attorney
Hammond, Louisiana
and
Charlotte H. Foster
Assistant District Attorney
Livingston, Louisiana Attorneys for Appellee
State of Louisiana Bertha M. Hillman
Covington, Louisiana Attorney for Defendant/Appellant
Jason Wesley Holcombe Jason Holcombe
Angola, Louisiana Pro Se BEFORE: McDONALD, McCLENDON, and THERIOT, JJ. McDONALD, J.
Judge Bennett presided at pretrial matters and Judge Johnson presided at the jury trial and sentencing.
The defendant, Jason Wesley Holcombe, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant pled not guilty and, after a jury trial, was found guilty as charged. The trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two counseled assignments of error and three pro se assignments of error. We affirm the conviction and sentence.
FACTS
Anna Vaughn lived on Spur Road in Denham Springs, Louisiana. In 2014, several people were living at Ms. Vaughn's house on a temporary basis, including Jessica Hodges, Joshua Thomason, and the defendant. Mr. Thomason and the defendant did not have jobs and were not paying rent. They were informed they would have to find work or stop living at the house. On May 10, 2014, Ms. Vaughn decided the defendant could no longer live in her house. The defendant had still not found employment, and on the day before, the defendant had borrowed Ms. Vaughn's van and had yet to return it. Ms. Vaughn placed the defendant's belongings in the hallway. Ms. Hodges, Mr. Thomason, and Mr. Thomason's friend, Jeffrey Wardlaw, were in the house's office listening to music on the computer. When the defendant arrived, Ms. Vaughn told him that his things were packed and it was time for him to go. After the defendant walked around the house awhile, Ms. Vaughn again told him it was time to go. In a heated exchange, the defendant told Ms. Vaughn that if he had to leave, then Mr. Thomason had to leave. Ms. Vaughn replied that Mr. Thomason did not have to go because he didn't "screw up." Mr. Thomason had found employment and was going to start his job in a few days. After their conversation, Ms. Vaughn walked away from the defendant and went to her bedroom. Moments later, the defendant walked into the office and shot Mr. Thomason in the side of the chest with a handgun. The bullet entered the left side of Mr. Thomason's chest, passed through both lungs and his aorta, and exited the right side of his chest. Mr. Thomason died within a few minutes. The defendant left the house and ran toward the woods. The police were unable to find him that day. The gun the defendant used to shoot Mr. Thomason was never found. The following day, the defendant was arrested at his aunt's house on Under Road, less than a mile from Ms. Vaughn's house. The defendant did not testify at trial.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In these related assignments of error, the defendant argues the trial court erred in denying his motion to continue and in denying his motion to appoint a sanity commission to determine his state of mind at the time of the offense. Specifically, the defendant argues that his defense counsel reviewed cell phone records several days before trial that showed the defendant might have mental health issues. Because the sheriff's office had not yet completed its recovery of information from one certain phone, defense counsel made motions to continue for more time to read the complete phone records and to appoint a sanity commission.
At a pretrial hearing on February 5, 2015, five days prior to the start of trial, defense counsel Tammy Thompson told the presiding judge, Judge Bruce Bennett, that of the four cell phones the police seized at the crime scene, analysts were able to conduct forensic analysis on only two of them. Ms. Thompson explained that she had received the "entire report" on one of the phones the day before but had not had the opportunity to completely examine the report. She also explained that the report on Ms. Vaughn's phone had not been completed. Ms. Thompson had viewed the unprinted version of the Vaughn report at the detective's office. When she left the office, she was told they were still working on recovering the rest of the information from the phone. According to Ms. Thompson, the select pieces of the Vaughn report that she was able to read raised questions about the defendant's mental capacity and competency at the time of the crime.
Ms. Thompson told Judge Bennett that, while she never had problems communicating with her client (the defendant), two people close to the defendant "questioned his mental stability." Ms. Thompson also stated that the defendant's mother had told her there was a family history of bipolar disorder. Ms. Thompson stated that she did not know if the defendant had bipolar disorder and that perhaps she had seen him on good days. When Judge Bennett asked about the defendant's treatment and medical history, Ms. Thompson replied that the defendant had never been treated and that he had no medical records.
Based on the above, Ms. Thompson filed an application for the appointment of a sanity commission. Ms. Thompson also filed a motion to continue. According to Ms. Thompson, the unread portions of the Vaughn report might contain more information on the defendant's mental health. Ms. Thompson felt that this yet to be determined information could constitute Brady material and, as such, could change the outcome of the case.
Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963).
The prosecutor, Ms. Charlotte Foster, answered:
In response, Your Honor, one reason there [are] so many cell phone records is because it goes all the way back to February of last year. Now this offense occurred in May and I guess our position would be as far as, you can have any case that maybe a phone was seized and you want to listen to every text message that was ever made. Well if they had the phone for years, they could go back forever. It just sounds like a fishing expedition. The portions that were near the time of this all happening have been provided. There was a problem getting things off of Anna Vaughn's phone. They had to get a program and I have Sergeant Brandon Browning here to answer any questions that the Court may have about what went on. They were finally able to get something off of it but there is nothing really inculpatory. There certainly is not any Brady. Regarding the mental health issues, part and [parcel] with all of that is there is discussion about him doing a lot of drugs during this time, which I am not planning on getting into. The fact that his drug use, he was using drugs. There is no mention of him using drugs right when this happened near right at the time this occurred or he was in the process of using drugs. And so it seems a little not concrete enough of which to have a motion to continue.Judge Bennett agreed with Ms. Foster, stating:
I don't understand where you are going with this, defense counsel. If you[r] assertion is the defendant was insane at the time of the commission of the offense, I would think that conversations between you and him could have alerted you early on to the possibility of such a plea. I would further have thought that review of the transcript that you yourself prepared from the tape, would have alerted you to the possibility which could be investigated through other sources other than dumping telephone
records out. I mean, surely he knows other people and witnesses could be talked et cetera in terms of that. However, if your defense is diminished capacity, if you are taking the position he was under such drug influence that it precluded the position of specific intent, then once again I would think that that is a trial defense that could be presented with your phone evidence, with your defendant, with other witnesses there. I would think but that is different from being insane at the time of the commission of the offense. Totally different situation. So if you want to argue that defense to the jury that he was so doped out that he couldn't form specific intent, then that is fine and you can use whatever evidence you have to do that. But I don't see where it is grounds for a continuance to go fishing through all of those phone records.
Judge Bennett denied both the motion to continue and the motion for appointment of a sanity commission.
The defendant's motion to continue was based on the potential existence of Brady material that had yet to be discovered by defense counsel. Louisiana Code of Criminal Procedure article 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.
The trial court has much discretion in deciding 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 LSA-C.Cr.P. art. 712. Also see State v. Roy, 496 So.2d 583, 588 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 228 (La. 1987).
It is well-settled that the State has an affirmative duty to disclose exculpatory evidence favorable to the defendant. See Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). But, to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was, in fact, exculpatory or impeaching. State v. Garrick, 03-0137 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). The State should disclose exculpatory evidence in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Prudholm, 446 So.2d 729, 738 (La. 1984). However, even where disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. See State v. Huls, 95-0541 (La. App. 1 Cir. 5/29/96), 676 So.2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. To be entitled to reversal, the defendant must show that he was prejudiced by the State's failure to timely disclose. Garrick, 870 So.2d at 993.
A discovery violation involving the State's failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. Id. While late disclosure, as well as nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense must be evaluated in the context of the entire record. State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545 (per curiam).
The defendant argues in brief that it was error for the trial court to deny his motion to continue "until complete phone records could be obtained to give him the opportunity to establish his innocen[c]e." The denial of this motion, according to the defendant, deprived him of information that may have been exculpatory and, as such, violated his right to a fair trial.
We note initially that the evidence that the defendant shot and killed Mr. Thomason was overwhelming and, as such, we do not see how any text messages culled from a cell phone record, regardless of the content, could have established the defendant's innocence. More importantly, events following Judge Bennett's denial of both motions convince us that the defendant's assertion that unseen information from the incomplete cell phone analysis could have contained Brady information is baseless.
Trial was scheduled for February 9, 2015. At the conclusion of voir dire on February 10, the State prosecutor told Judge Bennett that Ms. Hodges, an eyewitness in the case, had given birth to a child that day. By mutual consent of counsel, Judge Bennett granted a mistrial and reset the trial, which ultimately began on April 7, 2015. Judge Jeffrey Johnson presided over the trial. While Ms. Foster remained the prosecutor, Ms. Thompson was no longer representing the defendant. The defendant retained A. Hays Town, III, to represent him at trial and, according to a minute entry, that began as early as March 2, 2015.
There was about a two-month period from the time Judge Bennett denied Ms. Thompson's motions and the start of the new trial. Further, new defense counsel, Mr. Town, was handling the defendant's case well over a month before the start of the new trial on April 7. Mr. Town did not raise or re-urge the issues of the defendant's mental health or of text messages possibly containing Brady material. From the start of this matter, the defendant had pled not guilty, rather than not guilty and not guilty by reason of insanity. Ms. Thompson never changed the "not guilty" plea, and Mr. Town, likewise, maintained a "not guilty" plea throughout trial.
Ms. Thompson had told Judge Bennett at the February 5 pretrial hearing (on the motion to continue) that, while she had received the entire report from one cell phone, she had not had the opportunity to completely examine it. Judge Bennett then granted the mistrial on February 9. It would appear, thus, that despite there being no information in the record on the ultimate disposition of the incomplete phone record, the Sheriff's Department would have had ample time prior to the April 7 trial date to complete its report on the Vaughn phone record. We cannot know this with certainty since the issue was never raised again following the denial of the motion to continue. We presume, however, that Mr. Town, having taken over the case more than a month before trial, would have had the opportunity to review all of the completed records; and that if the records were still not complete by the start of trial, Mr. Town could have raised the issue before Judge Johnson.
In any case, Ms. Thompson's motion to continue became moot once a mistrial was declared, and Ms. Thompson had several weeks to review the reports that she claimed could not be completely examined in only the three hours she initially had at the Sheriff's office "viewing the unprinted version" of the Vaughn report. Moreover, we are left with defendant's mere speculation that the cell phone text messages may have contained Brady material. He has proffered nothing regarding this issue and, as such, there is nothing for us to consider or review. Based on the above, we find the defendant has failed to show that he was prejudiced in any way or that the proceedings were somehow rendered fundamentally unfair. See State v. Pitre, 04-0545 (La. App. 1 Cir. 12/17/04), 901 So.2d 428, 441-42, writ denied, 05-0397 (La. 5/13/05), 902 So.2d 1018.
Regarding the defendant's motion to appoint a sanity commission, we also find no error in the trial court's denial of the motion. We note as well that, since the defendant's only plea was one of not guilty, the only relevant finding a sanity commission could have made was with respect to the defendant's competence to stand trial. See LSA-C.Cr.P. art. 651; Pitre, 901 So.2d at 442. Simply because a defendant's capacity to proceed is called into question by formal motion does not mandate that the trial court order a mental examination or appoint a sanity commission. See LSA-C.Cr.P. arts. 643 and 644. Appointing a sanity commission is neither a perfunctory matter nor a ministerial duty of the trial court; it is not guaranteed to every accused in every case. Given the presumption of sanity, before the trial court is required to appoint a sanity commission, the defendant must establish by a preponderance of the evidence that reasonable grounds exist to doubt his mental capacity to proceed. A reviewing court owes the trial court's determination on these matters great weight, and the trial court's ruling will not be disturbed on appeal absent a clear abuse of discretion. State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 892, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).
The only information provided at the pretrial motion hearing regarding the defendant's mental health or competency during the commission of the crime was that defense counsel was told by the defendant's mother that there was bipolar disorder in the defendant's family. The defense offered no testimony and provided no medical records regarding the defendant's mental condition. The defense failed to prove by a preponderance of the evidence that reasonable grounds existed to doubt the defendant's mental capacity to proceed and, as such, the trial court did not abuse its discretion in denying the motion to appoint a sanity commission. See Bridgewater, 823 So.2d at 893. These assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In his first pro se assignment of error, the defendant argues he was denied due process by the trial court's instruction to the jury regarding a non-unanimous verdict. Specifically, the defendant contends that LSA-C.Cr.P. art. 782(A) and Louisiana Constitution art. I, §17(A), the provisions allowing for non-unanimous jury verdicts, violate the Fourteenth Amendment's Equal Protection Clause of the United States Constitution. According to the defendant, the enactment of LSA-Const. art. I, §17(A) was "motivated by an express and overt desire to discriminate against blacks on account of race" and has had a racially discriminatory impact since its adoption. We note that the jury here found the defendant guilty of second degree murder by a vote of eleven to one.
An appellate court may not consider a constitutional challenge unless it was properly pleaded and raised in the trial court below. A party must raise the unconstitutionality in the trial court, must specially plead the unconstitutionality, and must particularize the grounds outlining the basis of unconstitutionality. See State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709, 718-19. Here, the defendant failed to raise his challenge to Louisiana Constitution Article I, §17(A) in the trial court. Accordingly, the issue is not properly before this Court. This pro se assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In his second pro se assignment of error, the defendant argues he was denied his right to a fair and impartial jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, despite no objection by defense counsel, the defendant contends that the State improperly struck prospective juror Edna Dixon. Based on defense counsel's failure to object to the State's peremptory strike of Dixon, the defendant also asserts ineffective assistance of counsel.
In Batson, the United States Supreme Court adopted a three-step analysis to determine whether or not the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for peremptorily striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. State v. Galliano, 96-1736 (La. App. 1 Cir. 6/20/97), 696 So.2d 1043, 1047, writ denied, 97-1963 (La. 1/9/98), 705 So.2d 1098. The second step of this process does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Purkett v. Elem., 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam). See LSA-C.Cr.P. art. 795(C), (D), and (E).
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1 Cir. 1985) (citing Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-1039 (La. App. 1 Cir.), writ denied, 476 So.2d 350 (La. 1985).
Despite the defendant being Caucasian and the stricken prospective juror at issue being African-American, a Batson challenge is still permissible. See Powers v. Ohio, 499 U.S. 400, 415-16, 111 S.Ct. 1364, 1373-74, 113 L.Ed.2d 411 (1991). Edna Dixon was an African-American female on the first panel of prospective jurors. During the selection process, the State peremptorily struck Ms. Dixon. Defense counsel did not object to the strike. Five jurors were picked from this first panel. Prospective jurors from a second and third panel were questioned before all twelve jurors and two alternate jurors were picked. The questioning and the selection process of prospective jurors on the second and third panels were not transcribed and are, therefore, not part of the appellate record.
Because defense counsel did not object, the trial court did not undertake a Batson analysis. Moreover, based on the record before us, namely the transcription of only the first voir dire panel, the defendant has made no showing that there was a Batson violation. This lack of a complete record further limits our review regarding any ineffective assistance of counsel claim. Ms. Dixon indicated in voir dire that her son had been convicted of a drug crime and sent to jail. Ms. Dixon further indicated that her sister was a secretary for the attorneys at the public defender's office in Baton Rouge. These are clearly race-neutral reasons.
In any event, a claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court, where a full evidentiary hearing may be conducted. Where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1 Cir. 11/8/96), 684 So.2d 432, 438.
The record before us indicates that while the State struck an African-American in the first panel, the State also peremptorily struck at least three Caucasian prospective jurors in the first panel. The remainder of the record, however, does not disclose sufficient evidence for us to evaluate an ineffective assistance of counsel claim based on the failure to make a Batson objection. Aside from the first panel, the record is silent as to the race of the other two voir dire panels, as well as to the members of the jury venire. Since defense counsel did not make a Batson objection, there has been no prima facie showing that the State exercised any of its peremptory challenges on the basis of race, and the burden never shifted to the State to articulate race-neutral reasons for striking jurors. Accordingly, this claim is more properly raised by application for postconviction relief where, if necessary, the trial court may conduct a full evidentiary hearing. See State v. Cobb, 13-1593 (La. App. 1 Cir. 3/27/14), 144 So.3d 17, 28; State v. Albert, 96-1991 (La. App. 1 Cir. 6/20/97), 697 So.2d 1355, 1363-64. This pro se assignment of error is without merit.
The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., to receive such a hearing.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
In his third pro se assignment of error, the defendant argues the trial court erred in denying his cause challenge of a prospective juror. Specifically, the defendant contends that the answers provided by Billy Amacker indicated he could not be fair and impartial.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. LSA-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 the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1 Cir.), writ denied, 468 So.2d 570 (La. 1985). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that 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 the trial court may reasonably imply bias, prejudice, or inability to render judgment according to law. State v. Martin, 558 So.2d 654, 658 (La. App. 1 Cir.), writ denied, 564 So.2d 318 (La. 1990). See LSA-C.Cr.P. art. 797.
A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. LSA-C.Cr.P. art. 800(A). Prejudice is presumed when the trial court erroneously denies a challenge for cause and the defendant has exhausted his peremptory challenges. To prove there has been error warranting reversal of the conviction, the defendant need only show (1) the erroneous denial of a challenge for cause, and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280-81.
During voir dire, prospective juror Amacker informed the prosecutor that he had been a victim of crime - someone had stolen his tools - and that even though the Sheriff's Office responded, no one had been apprehended. Mr. Amacker indicated that, despite this experience, he was not going to hold anything against the defendant or the Sheriff's Office. Mr. Amacker stated that he had sent a check "last night" to the Sheriff's Office to become "another honorary -- you know -- ." It appears the word Mr. Amacker was looking for was "member" or perhaps "deputy." Defense counsel challenged Mr. Amacker, stating, "Challenge for cause because he claimed that he has paid his dues to be an honorary Sheriff's deputy in this parish. There is some bias there." The trial court denied the cause challenge. Defense counsel objected and peremptorily struck Mr. Amacker.
As noted, because the record before us does not contain the voir dire transcription of the second and third panels, there is no way for us to know whether or not defense counsel exhausted all of his peremptory challenges. Accordingly, the defendant is not entitled to the presumption of prejudice. Under State v. Vanderpool, 493 So.2d 574, 575 (La. 1986), a defendant who has not exhausted his peremptory challenges must establish that he was prejudiced by a ruling denying a cause challenge, e.g., that he was forced to hoard his remaining peremptory challenges at the cost of accepting a juror he would have peremptorily challenged. State v. Davis, 97-2750 (La. App. 1 Cir. 11/6/98), 722 So.2d 1049, 1051, writ denied, 99-3521 (La. 6/16/00), 764 So.2d 960. The defendant cannot show this either based on the record before us. This claim would be more properly raised by application for post-conviction relief where, if necessary, the trial court may conduct a full evidentiary hearing.
In any case, given the record before us, we address the defendant's claim to determine whether the trial court erred in denying the defendant's cause challenge of Mr. Amacker.
Louisiana Code of Criminal Procedure article 797 states in pertinent part:
The state or the defendant may challenge a 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;
* * *
(4) The juror will not accept the law as given to him by the court[.]
We find no reason to disturb the trial court's ruling in denying the cause challenge. While Mr. Amacker had been a victim of crime, he made clear he would not hold this experience against the defendant. Mr. Amacker's honorary member status with the Sheriff's Department, accomplished by simply mailing a check, may have indicated a pro-law enforcement stance, but there was nothing in the voir dire exchanges to indicate Mr. Amacker could not be a fair and impartial juror, despite defense counsel's averment that "[t]here is some bias there." A prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if, after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. See State v. Kang, 02-2812 (La. 10/21/03), 859 So.2d 649, 654-55; State v. Copeland, 530 So.2d 526, 534 (La. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). After Mr. Amacker indicated he would not hold anything against the defendant, and that he had sent a check to the Sheriff's Office, the following exchange between the prosecutor and Mr. Amacker took place:
Q. So you don't hold anything against the Sheriff's Office?
A. Not at all.
Q. Not going to hold that against the defendant either?
A. Not at all.
The line-drawing in many cases is difficult. Accordingly, the trial court must determine the challenge on the basis of the entire voir dire and on the court's personal observations of the potential jurors during the questioning. Moreover, the reviewing court should accord great deference to the trial court's determination and should not attempt to reconstruct the voir dire by a microscopic dissection of the transcript in search of magic words or phrases that automatically signify the jurors' qualification or disqualification. See State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 405-06, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).
Despite the defendant's assertion that he was prejudiced by the denial of Mr. Amacker's cause challenge, the trial court was in the best position to determine whether he could discharge his duty as a juror. Upon reviewing the voir dire in its entirety, we cannot say the trial court abused its discretion in denying defense counsel's cause challenge. Moreover, Mr. Amacker did not serve as a juror. This pro se assignment of error is without merit.
CONCLUSION
For the above reasons, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.