State v. FrankState v. Frank
This is a direct appeal from a conviction of first degree murder and a sentence of death.
Facts
On March 4, 1995, the defendant, then an officer with the New Orleans Police Department, and Rogers Lacaze were arrested and charged with three counts of first degree murder for the deaths of Ronald Williams, Ha Vu, and Cuong Vu. The murders occurred in the early morning hours at the Kim Anh Restaurant in New Orleans East. The Vu family owned the restaurant, and Ronald Williams was an off-duty police officer performing security detail that evening at the restaurant. The defendant had occasionally worked at the restaurant as a security guard and was familiar with the Vu family and Ronald Williams. She and her co-defendant visited the restaurant several times on the night of the murders.
As the restaurant was closing early that morning, Chau Vu, sister of two of the victims, went into the kitchen to count money. She reentered the dining room of the restaurant to pay Ronald Williams, when she noticed the defendant approaching the restaurant yet again. Sensing something was wrong, Chau Vu ran back to the kitchen and hid the money in the microwave before returning to the front of the restaurant. Using a stolen key, the defendant entered the restaurant and began to walk quickly to the back of the building, pushing Chau, one of Chau‘s brothers, Quoc, and a restaurant employee along with her. Shots rang out, and the defendant ran back to the front of the restaurant. Chau, Quoc, and the employee hid in a cooler in the kitchen, concerned because they did not know the whereabouts of Chau‘s and Quoc‘s sister and brother, Ha and Cuong. From inside the cooler, Chau and Quoc could partially see the front of the restaurant. Chau initially could see the defendant, who appeared to be looking for something. The defendant moved out of Chau‘s line of vision, and then the three hiding heard additional gunshots. Quoc next observed the defendant searching in the area where the Vus usually kept their money. He then saw her walk over to the area where he later found the bodies of his brother and sister, and he heard more gunshots. After the defendant and Rogers Lacaze left the premises, Quoc emerged from the cooler and called 911 to report the murders.
After police officers arrived on the scene, the defendant returned to the restaurant as well. She approached Chau, asking her what happened. Chau found another officer and reported what she had witnessed. After Chau was interviewed in more detail, the defendant and Rogers Lacaze were arrested and charged with first degree murder.
The defendant and Rogers Lacaze were indicted by an Orleans Parish Grand
Motion to be Declared Indigent
In her first six assignment of errors, the defendant argues that the trial court abused its discretion in not finding her indigent. She further argues that she was entitled to make a showing of need for state-funded experts, but that her right was foreclosed by the court‘s denial of her motion on indigent status. See State v. Touchet, 93-2839, p. 6 (La.9/6/94), 642 So.2d 1213, 1216 (holding that “for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial“).
On August 29, 1995, approximately one week before the defendant‘s trial was to begin, the trial court conducted a brief evidentiary hearing on the defendant‘s motion to have herself declared indigent.2 The court allowed the defendant to take the stand and testify as to her financial status and ability to pay for the expert services she was requesting that the state fund. The defendant testified that her mother had retained counsel for her, that neither she nor her family owned any real property, that she owned a nineteen-year-old Ford Elite which she bought for $600, that she had accrued benefits with the New Orleans Police department but did not know how much or how she could access the money, and that her mother had sold her furniture for approximately $6000.00, which was used to pay pre-existing obligations and her attorney‘s fee.
A trial court must consider several factors before determining whether a defendant is indigent and may review its determination at any time during the proceedings.
In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider whether the person is a needy person and the extent of his ability to pay. The court may consider such factors as income or funds from employment or any other source, including public assistance, to which the accused is entitled, property owned by the accused or in which he has an economic interest, outstanding obligations, the number and ages of dependents, employment and job training history, and level of education.
See also State v. Adams, 369 So.2d 1327, 1329 (La.1979) (citing
Applying these factors for determining indigency to the evidence adduced at the August 29, 1995, hearing and through the trial court‘s investigation into the defendant‘s benefits from the police department, the record reflects the following: (1) defendant initially retained defense counsel through her mother; (2) defendant had been terminated from the police force and was receiving no income; (3) defendant had accrued retirement benefits of approximately $3,800, which the trial court ordered to go directly to the court reporters; (4) defendant had access to approximately $1800.00 from furlough time; (5) defendant did not own any real property; (6) defendant owned a 1976 Ford Elite for which she paid $600, and which was impounded by police; (7) defendant had sold all her furniture and effects two weeks after her arrest for approximately $6,000; (8) defendant had her mother use money from sale of furniture to pay existing debts and attorney‘s fees;
Under the standards set forth in our jurisprudential and statutory law, the defendant was indigent for the purposes of obtaining state-funded expert assistance. Even if, at one time, the defendant may have had access to approximately $11,000.00, Louisiana law provides that the trial court may reassess a determination of indigency at any time, in recognition of the fact that a defendant‘s financial status may not be static and that a defendant may become indigent at any point in the proceedings. See
On August 29, 1995, the defendant testified that the $6000.00 received for her furniture had already been used to satisfy pre-existing obligations and to pay attorney‘s fees. Further, the trial judge ordered that the money the defendant had accrued in her retirement fund go directly to the court reporters for transcripts. At most, under the trial court‘s calculation, the defendant was left with approximately $1800.00 at the time of the pre-trial hearing. Even assuming she had access to that money to pay counsel and assuming that the entire $6,000 in proceeds from the sale of defendant‘s furniture all went to counsel‘s fee, that sum is low compared to what a reasonable retained counsel might charge to represent someone in a capital case. We further note that eight months after the defendant‘s trial ended, the same trial judge declared her indigent for purposes of her appeal, although the record reflects no change in the defendant‘s financial status from the pre-trial hearing.
Thus, we find that the trial judge abused his discretion in not declaring the defendant indigent at the pre-trial hearing. However, that determination does not end the inquiry, as the court must now consider what, if any, prejudice the defendant suffered as a result of not being declared indigent.
In Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985), the United States Supreme Court construed the Fourteenth Amendment‘s due process clause to guarantee that, in a prosecution against an indigent defendant, the state “take steps to assure that the defendant has a fair opportunity to present his defense.” One “step” the state must take is to ensure that the indigent defendant is provided with effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A further component of the state‘s obligation to provide effective assistance of counsel is to also furnish the indigent defendant‘s counsel with all of the “`basic tools of an adequate defense.‘” Ake, 470 U.S. at 77, 105 S.Ct. at 1093 (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971)).
The Court in Ake held that a state-funded psychiatric expert is a “basic tool” for a defendant‘s case, “when the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial....” 470 U.S. at 83, 104 S.Ct. at 1096. This court has extended the constitutional right of indigent defendants recognized in Ake to other types of expert assistance considered crucial to an indigent‘s defense.
For example, this court has held that the right to a private investigator may in many cases be an adjunct to the right to counsel, because furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense. State v. Madison, 345 So.2d 485, 490 (La.1977) (citing United States v. Johnson, 238 F.2d 565, 572 (2d Cir.1956) (Frank, J., dissenting); Note, The Indigent‘s Right to an Adequate Defense: Expert and Investigational Assistance in Criminal Proceedings, 55 Cornell L.Rev. 632 (1970); Note, Right to Aid in Addition to Counsel for Indigent Criminal Defendants, 47 Minn.L.Rev. 1054 (1963); ABA Standards for Criminal Justice Relating to Proving Defense Services (1967), § 1.5 and commentary). In Madison, the court reiterated the fundamental principle that the kind of trial a man gets cannot be made to depend on the amount of money he has. Id. (citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)). Therefore, when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him. Id. (finding that indigent defendant in that case had not made a sufficient showing of need to justify the procurement of an investigator).
In State v. Craig, 93-2515, 93-2654, 93-2589, p. 13 (La.5/23/94), 637 So.2d 437, 446-47, the court upheld a trial court decision ordering payment for the services of an investigator, a psychologist, and a mitigation expert, finding that those services were necessary to provide the indigent defendant with an adequate opportunity to present his defense. However, the court in Craig recognized that an indigent defendant‘s unlimited right to state-funded expert services would carry with it a great potential for abuse. Id. at 446. Therefore, the court emphasized that an indigent defendant wishing to obtain funding for the production or gathering of any evidence must make a showing of the necessity for those services. Id. at 447.
This court addressed the specific issue of what showing an indigent needs to make in order to obtain state-funded expert assistance in more detail in State v. Touchet, 93-2839 (La.9/6/94), 642 So.2d 1213. In that case, the court elaborated on its holding in Craig, stating that:
Henceforth, for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution‘s case or to support a critical element of the defense. If the trial court finds that the indigent defendant is able to meet this standard, it is to authorize the hiring of the expert at the expense of the state.
The court‘s most recent pronouncement on this subject is found in State v. Jones, 97-2593, p. 4 (La.3/4/98), 707 So.2d 975, 977, where it held that the retention of private counsel from a collateral source of funds at no cost to the defendant did not affect a defendant‘s ability to prove indigency. The court recognized that regardless of whether a defendant derives any assistance from an ancillary source, “[t]he
The court has made clear that an indigent defendant is entitled to present a trial court with evidence of his or her need for state-funded expert assistance at a hearing on the matter. See Touchet, 642 So.2d at 1221. In the present case, the trial court precluded the defendant from making such a showing of need by refusing to find her indigent in the first place. While the defendant filed an ex parte application for expert funding, specifically requesting psychiatric/psychological expert assistance for both the guilt and penalty phase of her trial and a mitigation expert/social worker for the penalty phase and providing how much that assistance would cost, the trial court failed to address the application or hold a hearing on the matter.4 As a result, the defendant argues she was forced to go to trial without necessary expert assistance, which prejudiced her ability to present an adequate defense at both the guilt and penalty phase.5
Regarding the defendant‘s request for psychiatric and/or psychological expert assistance for the guilt phase of her trial, her argument that the trial court‘s error in not finding her indigent precluded her from making the appropriate showing of need for this assistance is without merit. Louisiana law is well-settled that evidence of mental condition or defect is inadmissible at the guilt phase of a capital case unless the defendant has pleaded not guilty by reason of insanity. State v. Koon, 96-1208, p. 19 (La.5/20/97), 704 So.2d 756, 768; State v. Deboue, 552 So.2d 355, 366 (La.1989); State v. Lecompte, 371 So.2d 239, 243 (La.1978), on rehearing, (La.5/21/79). The defendant never argued that she was insane or incompetent to proceed at trial, and, therefore, she was
However, because both this court and the Supreme Court have repeatedly stressed that a capital defendant has the right to introduce virtually any evidence in mitigation during the penalty phase of a capital trial, we find the trial court committed error in not allowing the indigent defendant the opportunity to make a showing under Touchet as to her need for state-funded assistance for the purpose of presenting any such mitigating evidence. See State v. Brumfield, 96-2667, p. 50 (La.10/20/98), 737 So.2d 660, 686 (citing Lockett v. Ohio, 438 U.S. 586, 605-606, 98 S.Ct. 2954, 2954, 57 L.Ed.2d 973 (1978); State ex rel. Busby v. Butler, 538 So.2d 164 (La. 1988)). By not allowing a hearing on the matter, the trial court did not provide this court with adequate information upon which to review the question of whether the defendant was entitled to the expert assistance she requested for the penalty phase of her trial and what prejudice she may have suffered as a result of not obtaining state-funded assistance.6 See State v. Prestridge, 399 So.2d 564, 581 (La.1981) (stating that when an indigent defendant has been denied funds to obtain expert assistance, the issue on review becomes whether the denial of funds substantially prejudiced the defendant at trial); State v. Monroe, 397 So.2d 1258, 1266 (La.1981) (finding that the indigent defendant was not substantially prejudiced by the denial of expert assistance at trial).
We therefore find it necessary to remand the case for an evidentiary hearing at which the defendant will be afforded the opportunity to make the necessary showing under Touchet for obtaining state-funded expert assistance. If she is able to meet the standards provided in Touchet, the trial court is to vacate the defendant‘s sentence, order a new penalty hearing, and order that state funds be procured so that the defendant may hire the requested experts to assist her defense at the sentencing hearing. If the trial court finds that the defendant can not make the proper showing of need, the defendant may appeal that decision to this court along with the other assignments of error concerning the penalty phase of her trial.
The defendant‘s conviction is affirmed for the reasons that her indigent status did not have any effect on her case during the guilt phase of the trial and because we do not find that any of her other arguments constitute reversible error.
Motion for Change of Venue
In her seventh, eighth, ninth, and tenth assignments of error, the defendant argues that the trial court erred by denying her motion for a change of venue.
After the first two individuals on the first panel of prospective jurors were examined, defense counsel filed a motion to change venue on grounds that widespread
A defendant is guaranteed an impartial jury and a fair trial. To accomplish this end, the law provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of original venue. State v. Bell, 315 So.2d 307, 309 (La.1975) (citing Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)).
The specific provision of Louisiana law providing for a change of venue is found in
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.
This article was adopted as part of the Code of Criminal Procedure in 1966. It changed the test used previously in Louisiana to determine whether a change of venue was necessary. The former rules had been concisely stated in State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959) (citations omitted):
The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him. The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any reasonable doubt arising either from the evidence or the lack of it. The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.
However, the legislature found this judicial interpretation deficient in that it confused the separate and distinct grounds for challenging objectionable jurors for cause and for change of venue. Bell, 315 So.2d at 309. Thus, when Article 622 was enacted, the legislative intent regarding the separate nature of the two tests for challenging jurors and changing venue was expressed in the Official Revision Comment, which stated that the former “test for change of venue, as interpreted by the jurisprudence, is much weaker than was intended by the express language used in [the former statutory provision].” Quoted in Bell, 315 So.2d at 310. The Comment
These [sic] leads to the conclusion that if the defendant cannot successfully challenge for cause he has no grounds for a change of venue; and furthermore, that if he does challenge for cause and the objectionable jurors are thus removed he has no grounds for change of venue. Logically, therefore, change of venue did not exist as a concept separate from challenge for cause....
The foregoing suggests that the emasculated change of venue test as announced by the supreme court has no value. It is thus clear that the change of venue concept must be one which overrides the challenge for cause concept and is to be superimposed upon the entire proceeding. A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.
It is the purpose of the second paragraph of this article to effect such a policy and to overcome the jurisprudence in the cases cited above.
Id. (citations omitted).
After considering the Revision Comment and the language of Article 622, this court in Bell enumerated several relevant factors that would help guide the judiciary in determinations of whether to change venue under the new provision. Those factors are: (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. Bell, 315 So.2d at 311.
The court instructed that under the new provision, it was no longer appropriate for a trial court to only inquire as to whether the individual prospective jurors could be fair and impartial and uninfluenced by what they had heard or had seen outside the court. Bell, 315 So.2d at 313. The focus must extend beyond the prejudices and attitudes of the individual venire persons, and the defendant must be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, that there exists prejudice or influences within the community at large that would affect the jurors’ answers during voir dire or the testimony of witnesses at the trial, or that for any other reason, a fair and impartial trial could not be held in the parish. Id. The trial court‘s ultimate determination must be of the community‘s attitude toward the defendant. Id.
Shortly after the Bell decision, the court addressed the issue again in State v. Rudolph, 332 So.2d 806, 809 (La.1976), where it reiterated that, “under the test set forth in article 622 of the Code of Criminal Procedure, the fact that a jury can be
While the legislature may have changed the test previously used in this state to determine whether venue should be changed under Article 622, the Bell court noted that the burden of proof on the defendant to show actual prejudice and the discretion accorded the trial court were not changed. Bell, 315 So.2d at 309-10. The burden of proof remains on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible.7 State v. Vaccaro, 411 So.2d 415, 424 (La.1982) (citing State v. Adams, 394 So.2d 1204 (La.1981); State v. Williams, 385 So.2d 214 (La.1980); State v. Felde, 382 So.2d 1384 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1979), on rehearing 379 So.2d 1368 (La.1980)). Whether the defendant has made the requisite showing is a question addressed to the trial court‘s sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. Id.
Both this court and the United States Supreme Court have instructed that the defendant cannot meet his burden merely by showing that there exists public
We have recognized, though, the inherent difficulty of presenting direct evidence of community-wide prejudice against a defendant and acknowledged that positive proof of such prejudice is not always available. Rudolph, 332 So.2d at 809. Therefore, on review of a denial of change of venue, this court and the United States Supreme Court primarily inquire as to the scope and nature of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial, in order to ascertain whether prejudice existed in the mind of the public which prevented the defendant from receiving a fair trial. See, e.g., Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975), State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542.
The seven factors enumerated by this court in Bell facilitate a court‘s inquiry into the nature and scope of publicity disseminated in the community where a crime occurred. This court in State v. David also distinguished extensive media coverage that is primarily factual in nature from that which is attended by inflammatory factors, such as racial strife, murder of a law enforcement officer, or an egregious event such as a televised confession. 425 So.2d at 1247. The United States Supreme Court has also cautioned that courts must distinguish largely factual publicity from that which is invidious or inflammatory, as they present real differences in the potential for prejudice. Murphy, 421 U.S. at 800, 95 S.Ct. at 2036, n. 4.
Additionally, this court and the United States Supreme Court have often examined the number of jurors excused for cause for having fixed an opinion as another gauge of whether prejudice exists in the public mind. Murphy, 421 U.S. at 803, 95 S.Ct. at 2037-38; State v. Wessinger, 98-1234, p. 7 (La.5/28/99), 736 So.2d 162, 173. The Supreme Court reasoned that in a community where the majority of prospective jurors will openly admit to a disqualifying prejudice, the reliability of other jurors’ assurances that they are impartial and have no preconceived notion may be drawn into question. Murphy, 421 U.S. at 803, 95 S.Ct. at 2037. The Court went on to reason that this is because it is more likely that those jurors who claim impartiality are part of a community hostile towards the defendant and therefore they may have been influenced by the community feeling, even if unwittingly. Id. Yet, the Court also warned that:
“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without
more, is sufficient to rebut the presumption of a prospective juror‘s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”
Id. at 800, 95 S.Ct. at 2036 (quoting Irvin, 366 U.S. at 723, 81 S.Ct. at 1642).
As these cases demonstrate, there is not a bright line test for determining the degree of prejudice existing in the collective mind of the community. There is no established minimum level of exposure to negative publicity or percentage of challenged jurors that illustrates a corruptive atmosphere mandating venue transfer. Hoffman, 768 So.2d at 555; Wessinger, 736 So.2d at 173. Therefore, this court has advised analyzing the question of whether a change of venue was required due to the number of prospective jurors whose ability to be impartial had been corrupted by publicity by comparison to other cases.8 Wessinger, 736 So.2d at 173.
In the present case, the court‘s inquiry as to whether a change of venue was necessary due to the alleged prejudice existing in the collective mind of the community is limited to a review of voir dire of the prospective jurors as the defendant never presented any evidence as to the scope and nature of the allegedly prejudicial pre-trial publicity.9 Although the record reveals that a great majority of the venire had been exposed to some kind of publicity surrounding the case (110 out of 113), no direct evidence was admitted to demonstrate the prejudicial or inflammatory nature of the publicity to the court. When specifically asked whether the publicity they had seen was positive or negative, many of the jurors responded it was negative; yet, neither the court nor counsel inquired as to what the jurors meant by “negative“. Further, when a couple of jurors were questioned more closely on the issue, several stated that the publicity had been mainly factual in nature and that the media had simply reported the facts surrounding the crime, the arrests, and the outcome of the co-defendant‘s trial.
While these numbers are significant, it is important to note that nearly all of the potential jurors who expressed that they had formed any pre-conceived opinions about the defendant were excused either for cause or upon challenge by defense counsel. Further, the majority of those prospective jurors who stated they had developed a negative feeling or opinion from the publicity to which they were exposed, expressed to the court that they would be able to put those feelings aside and fairly evaluate whatever evidence was presented at trial.
Out of those selected to serve on the jury, only one person, Juror Bartley, had expressed having had an initial negative opinion regarding the defendant‘s guilt due to the publicity immediately following the occurrence of the crime. Ms. Bartley, however, stated before the court that she no longer held that opinion and would be able to fairly evaluate the evidence in order to determine if the state had proved its case beyond a reasonable doubt.
While the record demonstrates that there was extensive knowledge within the community about the case in general, the defendant has failed to present sufficient evidence of an overriding prejudice within the community‘s collective mind that prevented her from receiving a fair trial. Most jurors responded that they were aware of the case, that the publicity they recalled was negative, but that they would be able to put aside that information and act impartially as a juror. Those jurors who expressed a pre-conceived negative opinion concerning the defendant‘s role in the crime that could not be put aside were excused for cause. Those prospective jurors only made up approximately 20% to 25% of the total venire.11 These percentages are not so high or outrageous as to justify any presumption of community-wide prejudice. Additionally, as discussed earlier, there was no direct evidence before the court as to the allegedly inflammatory nature of the pre-trial publicity. In conclusion, we do not find that this is a case in which the trial judge abused his discretion in denying a change of venue.
Challenges for Cause
In assignments of error numbers eleven and twelve, the defendant argues that the trial court erred by denying the defense
The trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281; State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683, 686. When a potential juror forms an opinion of the defendant‘s guilt that is derived from news publicity, the trial court should grant the defendant‘s challenge for cause of the prospective juror unless the “`juror declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.‘” State v. Smith, 491 So.2d 641, 646 (La. 1986) (quoting
A trial court‘s refusal to excuse a prospective juror for cause is not an abuse of discretion, even when the juror has expressed an opinion seemingly prejudicial to the defendant, if the juror, upon further inquiry or instruction, demonstrates that he or she is willing and able to decide the case impartially and according to the law. Robertson, 630 So.2d at 1281; Cross, 658 So.2d at 687; State v. Copeland, 530 So.2d 526, 534 (La.1988). A juror need not be totally ignorant of the facts involved with the case. State v. Harper, 430 So.2d 627, 636 (La.1983). If a juror who has acquired knowledge about the case through the media can sufficiently lay aside his or her impression of the defendant‘s guilt or innocence and render a verdict based on the evidence presented, he or she is competent to serve as a juror. Id.
Both potential jurors challenged in the defendant‘s assignments of error consistently affirmed their ability to put aside any negative impressions or opinions they had formed as a result of the publicity and decide the case fairly and impartially. Regarding potential juror McDermott, the defendant argues that the trial judge erred in not excusing Mr. McDermott because during defense questioning it emerged that he had been exposed to publicity about the case from reading the newspaper and had formed a negative opinion as a result. However, Mr. McDermott also stated that, “while I may have an opinion of this moment, I would base my decision on the evidence presented.” He also stated that “I do not have an opinion that would bias me in the performance of my duty as a juror.” The record further reveals Mr. McDermott‘s ability to serve as an impartial juror:
COURT: And, you mentioned that you had an opinion about it?—from all that reading—at on point. And, I think it is a proper question of whether or not it was a negative opinion or not ...
JUROR: Upon reading the newspaper, I have a negative opinion.
COURT: Okay. Can you put that opinion aside at this time and view the evidence and make you decision solely on the evidence?
JUROR: Yes.
Accordingly, it does not appear that the judge erred in denying the challenge for cause.
DEFENSE: Have you heard about this on the news?
JUROR: Somewhat.
DEFENSE: Have you seen anything positive about Ms. Frank on the television?
JUROR: No.
DEFENSE: And, have you had conversations with either friends or associates or family members about this case?
JUROR: Some.
DEFENSE: And, were all of those conversations negative in reference to Ms. Frank?
JUROR: I‘m sure they were, pretty much.
DEFENSE: Okay. I want to ask you, can you remember hearing anything positive about Ms. Frank as a result of what you have seen from the reports and the discussions with those people?
JUROR: No.
DEFENSE: And, do you come here today with no opinion as to her guilt or innocence?
JUROR: I wouldn‘t say that I don‘t have an opinion, but I will say that I would have to listen to the evidence presented here to make any decision as to that.
DEFENSE: But, you have negative feelings, and those negative feelings stem directly from what you have heard about this case?
JUROR: Yes.
However, defense counsel fails to cite to the state‘s questioning of Ms. Kutcher in which she answered that she could put the publicity out of her mind and listen to the evidence presented in the courtroom. Ms. Kutcher additionally stated:
I have negative feelings, but what I think and what the facts are as presented in Court, you know what happens here as far as the evidence goes, I know the rules are that she [defendant] doesn‘t have to do anything. It is his [prosecutor‘s] job to prove it ... And, I don‘t think that what I think would be biased at all with what I heard about before this. I would make a rational decision.
Thus, the trial judge did not err in denying the challenge for cause. Ms. Kutcher, although expressing some reservations initially, stated that she could be fair and decide the case solely on the evidence presented in the courtroom.
Both Mr. McDermott and Ms. Kutcher initially expressed that they had developed some negative opinions about the defendant. However, both also demonstrated that they could be fair and decide the case solely on the evidence presented in the courtroom. Therefore, these assignments of error lack merit.
Incomplete Record
In this assignment of error, the defendant claims that her right to a full and fair review on direct appeal has been violated because the record is incomplete.
As an initial matter, we recognize that the court itself has had its doubts about the completeness of the record in this case at times. However, as discussed earlier, only one transcript of a proceeding that took place on September 1, 1995, was found to be missing and to contain material information regarding the defendant‘s argument on indigency. See n. 2. Because the court obtained that transcript and, in part, based its determination that the defendant was in fact indigent on the information contained in that transcript, the defendant can hardly claim she was prejudiced by its initial absence from the record.
Further, regarding the indigency issue, defense counsel points out in this assignment of error that there is no transcript of a hearing held after the defendant‘s trial where the trial judge apparently found that the defendant was indigent for purposes of her appeal. The only reference in the record to this hearing is the trial judge‘s statement on March 15, 1996, that, “we had a full hearing as to whether or not Antoinette Frank or her mother had any funds.... I questioned the mother under oath.” We agree that it would have been helpful to have had a transcript of that hearing. However, the court already considered the fact that the defendant was later found indigent without any apparent change in circumstances and held that the judge abused his discretion in not earlier declaring her to be indigent. Therefore, again, the defendant was not prejudiced by this omission from the record.
The other dates of which defense counsel complains of the lack of transcription include many days during which no testimony was taken and no argument was heard by the trial court. On none of the days complained of, other than the post-trial hearing discussed above, did any proceeding material to the defendant‘s appeal take place. Therefore, those omissions do not constitute reversible error.12
Conclusion
The defendant‘s conviction is affirmed. However, the case is remanded to the trial court in order for it to hold an evidentiary hearing as to whether the defendant was entitled under Touchet to state-funded expert assistance for the sentencing phase of