State v. JonesState v. Jones
Assignment of Error No. 1
Defendant contends that the trial court erred in denying his challenge for cause of a prospective juror whose husband had been the victim of a similar armed robbery one year earlier, and whose home had been burglarized. However, in response to questioning by the prosecution and by the court regarding the effects of these experiences, this prospective juror expressed her conviction that she was capable of giving the defendant a fair and impartial trial. Although she also manifested her disagreement with defense counsel‘s analogy of proof beyond a reasonable doubt to a football field touchdown, her subsequent expression of her own concept of reasonable doubt was a fairly accurate approximation of that standard. The trial court‘s evaluation of a prospective juror‘s fairness and impartiality is entitled to great weight and will not be set aside unless it is arbitrary and unreasonable. State v. Webb, 364 So.2d 984 (La.1978). Because the voir dire examination supports the trial judge‘s determination that this prospective juror could fairly and impartially serve, this assignment of error is without merit.
Assignment of Error No. 2
Defendant was identified as the perpetrator of this armed robbery when the victim selected, out of a group of seven photographs displayed to him by the police, a
To be admissible, a photograph must be relevant to a material issue at trial, and its probative value must outweigh any possible prejudicial effect upon the jury. State v. Jones, 345 So.2d 1157 (La.1977); State v. Redwine, 337 So.2d 1041 (La.1976); State v. Cooper, 334 So.2d 211 (La.1976). With the exception of some evidence of the defendant‘s guilty behavior in allegedly attempting to avoid apprehension by the police, the state‘s entire case rested on the victim‘s identification of this photograph as that of the man who robbed him at gunpoint, and on his in-court identification. Because of the photograph‘s relevance to the material issue of identification, and its probative value, this evidence was properly admitted, and defendant‘s assignment of error is without merit.
Assignment of Error No. 3
In this assignment, defendant argues that his conviction by the non-unanimous verdict of a twelve person jury, a procedure authorized by
Assignment of Error No. 4
Defendant here contends that his sentence of fifteen years at hard labor without benefit of probation, parole or suspension of sentence is an excessive punishment, in violation of
In sentencing Jones, the trial judge stated only that a lesser sentence would deprecate the seriousness of the crime; he provided no factual bases for the length of the sentence imposed, and he did not consider the possible existence of statutory mitigating factors. A sentence may be vacated and a case remanded for re-sentencing, however, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Cox, supra; State v. Jackson, 360 So.2d 842 (La.1978). Otherwise, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded
In a brief submitted to this court by defendant himself, Jones contends that he was prejudiced by certain comments made by the prosecution in its closing argument to the jury.2 Jones claims that the prosecutor at that time directed the jury‘s attention to his mother‘s failure to appear to testify in his behalf regarding his presence at a party at the time of the robbery, the only defense presented by defendant, and that the prosecutor suggested that this failure to appear was proof that his mother was convinced of defendant‘s guilt. Attached to defendant‘s brief is a certificate from the Orleans Parish Coroner‘s Office, showing that his mother died eight months before his trial, the victim of a homicide.
The trial transcript shows that defense counsel was careful to introduce testimonial and documentary evidence of the subsequent death (and consequent inability to appear to testify) of a key figure in Jones’ alibi defense, a man who was allegedly Jones’ co-honoree at a two day party given by Jones’ sister. However, in the course of their extensive testimony concerning the party and its participants, Jones’ alibi witnesses made only fleeting reference to the fact that his mother and father had looked in on the celebration, e. g., question by the state: “Who else was there?“: answer by defendant‘s sister: “My mama passed over, but she left. My daddy he came by, but they left. They didn‘t stay.” Defense counsel‘s failure to introduce evidence of Jones’ mother‘s subsequent death is therefore quite understandable; he would have had no reason to anticipate the state‘s use of her failure to appear at trial.
However, defense counsel also failed to raise any objection to this portion of the state‘s closing argument, nor did he move for a mistrial on the ground of the state‘s prejudicial remarks, as provided by
The conviction and sentence of the defendant are affirmed.
CALOGERO, J., concurs and assigns reasons.
CALOGERO, Justice, concurring.
I concur. If defendant‘s contention concerning his lawyer‘s failure to object to the District Attorney‘s argument has merit, his relief is by way of writ of habeas corpus alleging ineffectiveness of counsel.