State v. FrancisState v. Francis
Defendant was arrested on May 15, 1979 and charged with the fatal shooting of two men on April 8, 1979 at the Tip Top Club in Broussard, Louisiana. He was convicted of two counts of first degree murder (
Defendant first claims that the court wrongfully allowed the prosecutоr to exclude prospective jurors on the basis of race, denying him his right to a trial by a jury representative of his community. Dеfendant presents no evidence to substantiate this allegation. This court has repeatedly held that a defendant is nоt denied equal protection when the state uses peremptory challenges to exclude blacks unless there is systematic exclusion over a period of time. The defendant bears the burden of making a prima facie showing of such еxclusion; once he does so, the state must show that there was no discrimination. State v. Washington, 375 So.2d 1162 (La. 1979); State v. Bias, 354 So.2d 1330 (La. 1978). This position accords with Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing by the defense that preemptory challenges were used to exclude members of a minority in a particular case was not sufficient to establish a violation of the Fourteenth Amendment‘s Equal Protection Clause. To present a сonstitutional question, the defendant must show systematic exclusion of the minority by the state over a period of time through the use of peremptory challenges. The record must show “with [some] acceptable degree of clarity ... when, how оften, and under what circumstances the prosecutor alone has been responsible for striking [the minority].” 380 U.S. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 775.
In State v. Washington, supra, and State v. Brown, 371 So.2d 751 (La.1979), we found objeсtive evidence of systematic exclusion of blacks through the use of peremptory challenges by the proseсutor over an extended period of time. However, the record in this case does not reveal any other instances of exclusion by this prosecutor. The state points out that this is the first trial conducted by this prosecutor. Defendant has nоt established that there was discrimination in this particular case, as it is not clear from the record that there were no black persons sworn.
Defendant also claims that he was denied a trial by a representative jury because the court excused for cause jurors who stated that they were opposed to the death penalty. Since the jury did not recommend and the court did not impose the death penalty, the defendant cannot validly claim that the jury selectiоn procedure operated to his prejudice. State v. George, 371 So.2d 762 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A review of the voir dire examination shows that every juror who indicаted that he had religious or conscientious scruples against the death penalty was asked if he would automaticаlly vote against the imposition of capital punishment without regard to any evidence that might be presented at trial. Thоse jurors who responded positively to this question were excused by the court. This procedure conforms to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and
Finally, defendant claims that the cоurt erred in allowing a juror to serve who stated that he was hard of hearing, had difficulty with the English language, and had heard about the shooting from his son.
We find nothing in the record to indicate that this juror could not be impartial. Wе also accept the trial judge‘s determination that the juror‘s communications problems were not so severe as to render him incapable of serving as a juror. The trial judge has wide discretion in ruling on challenges for cause, and his determinations will not be set aside on appeal, absent a clear showing of error. State v. Jones, 315 So.2d 650 (La.1975); State v. Willis, 262 La. 636, 264 So.2d 590 (1972). The record in this case reveals no deficiency in the voir dire proceeding.
There is no merit in these assignments.
The conviction and sentence are affirmed.