State Of Louisiana VS Jorge Estrada

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 1458 STATE OF LOUISIANA VERSUS JORGE ESTRADA On Appeal from the 21st Judicial District Court Parish of Tangipahoa Louisiana Docket No 107 Division D 680 Honorable M Douglas Hughes Judge Presiding Scott M Perrilloux District Attorney Patricia Parker Assistant District Attorney Attorneys for State of Louisiana Amite LA Frank Sloan Attorney for Louisiana Appellate Project Defendant Appellant Jorge Estrada Mandeville LA BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered September 10 2010 PARRO J The defendant Jorge Estrada was charged by bill of information with possession of cocaine in excess of 400 grams a violation of LSAR 40 He pled not S 967 c 1 F guilty Following a trial by jury the defendant was found guilty as charged The defendant was sentenced to a term of imprisonment at hard labor for twenty five years The defendant appealed On February 7 2008 this court dismissed the s defendant appeal as untimely State v Estrada 072156 La App 1st Cir 2 08 7 unpublished order Thereafter the trial court granted the defendant motion for an s outoftime appeal The defendant now appeals urging two assignments of error as follows 1 The trial court erred in refusing to grant a mistrial after the state repeatedly and improperly called attention to the defendant post s arrestpost Miranda silence 2 The trial court committed reversible error by refusing to grant a challenge for cause to prospective juror Strahan We affirm the defendant conviction and sentence s FACTS In the early morning hours of August 27 2002 Special Agent Chad Scott of the United States Drug Enforcement Administration was participating in surveillance efforts in Baton Rouge Louisiana At approximately 2 a Agent Scott followed a green 30 m Chevy Impala with a Texas license plate to a Chevron service station on Sherwood Forest Boulevard near Interstate 12 Corvette The Impala was being followed by a white Both vehicles stopped at the Chevron station and the passenger in the Impala subsequently identified as the defendant exited the vehicle and met with the driver of the Corvette near the trunk The defendant opened the trunk of the Impala and reached inside as the Corvette driver watched The defendant quickly closed the The record reflects that prior to the instant trial a previous trial in the matter resulted in a mistrial Z Under LSAR 40 a fine of not less than two hundred fifty thousand dollars nor more S 967 c 1 F than six hundred thousand dollars is mandatory However the defendant is not inherently prejudiced by the trial court failure to impose a fine Accordingly we decline to correct the illegally lenient sentence s See State v Price 052514 La App 1st Cir 12 952 So 112 12425 en banc writ denied 06 28 2d 070130 La 2 976 So 1277 08 22 2d 2 trunk and returned to the passenger side of the vehicle The Corvette driver returned to his vehicle and both vehicles left the scene At approximately 3 a Louisiana State Police Trooper Ronald Furca stopped 00 m the Impala on Interstate 12 in Tangipahoa Parish for improper lane usage Agent Scott who had maintained surveillance of the Impala from Baton Rouge arrived on the scene shortly after the traffic stop Javier Morales the driver and the defendant the front seat passenger exited the vehicle Trooper Furca questioned the men After receiving conflicting information regarding their intended destination Trooper Furca requested permission to search the vehicle Morales initially gave verbal consent but then refused to sign a written consent to search form Agent Jimmy Speyrer of the Tri Parish Task Force and his canine partner Chelsea were summoned to the scene A freeair sweep of the vehicle revealed the presence of illegal narcotics Chelsea provided a positive alert on the vehicle trunk s A black backpack containing three kilogram packages of cocaine was found inside the trunk compartment of the vehicle The defendant and Morales were read their Miranda rights and placed under arrest At trial the defendant testified and denied knowingly possessing the cocaine found inside the trunk of the vehicle He claimed that he was unaware of the presence of the cocaine prior to the traffic stop He stated that after Morales pulled over in response to the police lights Morales started behaving strangely The defendant claimed that he then asked Morales what was wrong and Morales revealed that there was cocaine inside the trunk The defendant denied having any knowledge of the presence of the cocaine prior to this time He also denied ever exiting the vehicle and opening the trunk in Baton Rouge ASSIGNMENT OF ERROR NUMBER ONE In his first assignment of error the defendant argues that the trial court erred in failing to grant his motions for a mistrial when the state made references to his post arrest silence during the direct examination of Agent Chad Scott and cross examination of the defendant 3 In Doyle v Ohio 426 U 610 619 96 S 2240 2245 49 L 91 S Ct 2d Ed 1976 the United States Supreme Court held that the use for impeachment purposes of petitioner silence at the time of arrest and after receiving the Miranda warnings s violates the Due Process Clause of the Fourteenth Amendment See also Portuondo v Agard 529 U 61 7475 120 S 1119 1128 146 L 47 2000 However S Ct 2d Ed it is not every mention of the defendant postarrest silence that is prohibited by s Doyle As specified by the Louisiana Supreme Court in State v George 95 0110 La 95 16 10 661 So 975 980 Doyle condemns only the use for impeachment 2d purposes of the defendant silence at the time of arrest and after receiving Miranda s warnings The prosecutor may not use the fact of an accused exercise of his s constitutional right to remain silent after he has been advised of this right solely to ascribe a guilty meaning to his silence or to undermine by inference an exculpatory version related by the accused for the first time at trial State v Arvie 505 So 44 2d 46 La 1987 A brief reference to post Miranda silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted the proof of guilt is strong and the state made no use of the silence for impeachment See State v Smith 336 2d So 867 868 70 La 1976 see also State v Stelly 93 1090 La App 1st Cir 94 8 4 635 So 725 729 writ denied 941211 La 9 642 So 1309 2d 94 23 2d The Doyle proscription against referring to a defendant postarrest silence is s not without exceptions The state is allowed reference to the defendant post arrest s silence when the line of questioning is an attempt to summarize the extent of the police investigation and is not designed to exploit the defendant failure to claim his s innocence after his arrest in an effort to impeach his testimony or attack his defense See State v George 661 So at 97980 Another exception to Doyle also exists 2d when the evidence of postarrest silence is relevant to rebut a defense raised assertion that the arresting officer failed to properly investigate or that the defendant actively cooperated with the police when arrested State v Bell 446 So 1191 1194 La 2d 1984 rd In Bell the Louisiana Supreme Court underscored the following footnote appearing in Doyle It goes almost without saying that the fact of postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest In that situation the fact of earlier silence would not be used to impeach the exculpatory story but rather to challenge the defendant testimony as to his behavior following arrest s Cf United States v Fairchild 505 F 1378 CA5 1975 2d State v Bell 446 So at 1192 quoting Doyle 426 U at 619 n 11 96 S at 2d S Ct 2245 n 11 Our review of the record in the instant case revealed that the defendant is correct in his claim that the prosecutor elicited information from Agent Scott and from the defendant regarding the defendant postarrest silence s During the direct examination of Agent Scott the state questioned him regarding the circumstances surrounding the defendant arrest and booking s Agent Scott explained that the defendant and Morales were advised of their rights on the scene They were initially transported to the Tangipahoa Parish Sheriff Office substation for booking and later s to the Tangipahoa Parish Jail The prosecutor asked Agent Scott whether the defendant made any excited utterances or statements regarding his knowledge of the cocaine in the vehicle at that time Agent Scott indicated that he did not This was the first reference to the defendant postarrest silence s objection by the defense at this time However there was no The second reference was made when the prosecutor asked if the defendant ever asked to speak to Agent Scott privately on the morning of his arrest and Agent Scott responded negatively At this point defense counsel objected to the reference and moved for a mistrial The trial court denied the motion Later during the prosecutor cross examination of the defendant the following s exchange occurred Q When you were transported from Hammond to Amite did you and Javier ride together R A Yes Q You did A I believe so Q Okay but you didn ride together from the scene to the t substation A No Q Jorge why didn you tell anybody about this t Counsel for the defendant interrupted and requested that the jury be excused Once the jury was removed from the courtroom counsel reurged his motion for a mistrial arguing that the prosecutor repeatedly referred to the defendant postarrest silence s In response the prosecutor argued that the line of questioning was permissible because the defendant testified regarding several postarrest statements in his testimony on direct examination However the prosecutor agreed to rephrase the question The trial court denied the mistrial motion The defense did not request an admonition When the cross examination was resumed the prosecutor did not return to the inquiry regarding why the defendant chose to remain silent Instead he proceeded to question the defendant regarding the circumstances surrounding his custodial interrogation by Agent Scott We find that the aforementioned references to the defendant silence do not s warrant reversal of the conviction in this case In opening statements defense counsel told the jury that the defendant was going to testify and state that he did in fact tell the investigating officers that he only learned of the presence of the cocaine in the vehicle immediately after the traffic stop With this argument defense counsel attempted to create the impression that the defendant disclosed his exculpatory story to the officers at the time of the arrest so it was proper for the state to rebut this contention by showing that the defendant made no such statements to the officers With its opening remarks the defense invited the state inquiry into what transpired s during the early stages of the investigation of the matter Therefore there was no error or constitutional violation when the state questioned Agent Scott regarding the events surrounding the defendant arrest s When considered in context with the entirety of the trial it is clear that these references to the defendant silence were s made in an attempt to rebut the defense claim that he advised the investigating officers that Morales told him he had drugs in the vehicle only after they were stopped Insofar as the inquiry during the defendant cross examination regarding s whether the investigating officers asked if he wanted to make a statement we note that this was simply a question regarding the investigation and not a reference to the s defendant post arrest silence Thus this earlier inquiry clearly did not warrant a mistrial Finally we note that while the inquiry regarding why the defendant did not tell anybody when considered in isolation appears to come dangerously close to offending the defendant significant constitutional right to remain silent when it is s considered in conjunction with argument by defense counsel and the defendant trial s testimony indicating that he did in fact tell Agent Scott his exculpatory story during the investigation it is clear that the defendant was not unfairly prejudiced by the reference to his postarrest silence Thus a reversal of the conviction because of this reference is not warranted The trial court did not err in denying the defendant motions for a mistrial s This assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER TWO In his second assignment of error the defendant contends that the trial court erred in denying the defense challenge for cause against prospective juror Anthony Strahan Specifically he argues that Strahan should have been excluded for cause because his voir dire responses evidenced his inability to remain impartial in a drug related case The defendant asserts that the trial court efforts to rehabilitate Strahan s were unsuccessful He notes that even after Strahan eventually responded that he thought he could be fair and impartial he reiterated I very much against drugs m 6 Pursuant to LSAC art 797 a prospective juror may be challenged for P Cr 2 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 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 A 17 A challenge for cause should be granted even when a prospective juror declares his ability to remain impartial if the juror responses as a whole reveal facts s from which bias prejudice or inability to render judgment according to law may be reasonably implied State v Martin 558 So 654 658 La App 1st Cir writ 2d denied 564 So 318 La 1990 A refusal by the trial court to excuse a prospective 2d juror on the ground that he is not impartial is not an abuse of discretion where after further inquiry or instruction he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence State v Copeland 530 2d So 526 534 La 1988 cert denied 489 U 1091 109 S 1558 103 L S Ct 2d Ed 860 1989 A trial court ruling on a motion to strike jurors for cause is afforded s broad discretion because of the court ability to get a first impression of prospective s jurors during voir dire See State v Kang 022812 La 10 859 So 649 03 21 2d 653 54 A defendant must object at the time of a ruling refusing to sustain a challenge for cause by the defendant of a prospective juror LSAC art 800 Prejudice is P Cr A presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges To prove there has been reversible error warranting reversal of the conviction 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 922660 La 1 630 So 1278 128081 It 94 14 2d is undisputed that defense counsel exhausted all of the allotted peremptory challenges 9 in this case Therefore we need only determine the issue of whether the trial court erred in denying the defendant challenge for cause regarding the prospective juror in s question The record reflects that at the conclusion of the voir dire examination of the first panel of prospective jurors counsel for the defendant challenged Strahan for cause The trial court denied the motion and concluded h testimony was at the end that is he could be fair and impartial and Mr Estrada was at this time not guilty In reviewing the entirety of prospective juror Strahan voir dire responses we s note that although he indicated a firm position against drugs and he initially indicated that his strong conviction would possibly affect his ability to decide the case impartially he was successfully rehabilitated by the court As the trial court noted after being advised of his duty as a juror and the burden of proof required by the state Strahan indicated that he would hold the state to its burden He stated I think I can be fair s it just that the State would definitely have to show that he was in possession of it m I very much against drugs though Further evidencing his understanding of the burden of proof and his willingness to hold the state to it Strahan later commented If the State didn prove their case then not guilty Thereafter when the trial court t asked Strahan whether at that point prior to the presentation of any evidence the defendant was guilty or innocent Strahan replied He not guilty They haven s t proved that he was in possession of anything Therefore despite the defendant s contentions to the contrary we find that Strahan voir dire responses when considered s as a whole indicate that he was willing to set aside personal convictions listen to the evidence and follow the law Therefore we find no abuse of discretion in the trial s court ruling denying the challenge for cause of this prospective juror This assignment of error lacks merit For the foregoing reasons the defendant conviction and sentence are affirmed s CONVICTION AND SENTENCE AFFIRMED E

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