State Of Louisiana VS David Lewellen
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 0762 STATE OF LOUISIANA VERSUS DAVID LEWELLEN Judgment Rendered December 21 2012 x On Appeal from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana Trial Court No 490 287 The Honarable Jerome J Barbera III Judge Presiding X Camille A iti F X F Morvant II Attorneys for Appellee Kristine Russell State of Louisiana Thibodaux Louisiana Lieu T Vo Clark Mandeville Attorney for Appellant Louisiana BEFORE David Lewellen CARTER C GUIDRY J AND GAIDRY JJ CARTER C J The defendant David Lewellen was indicted for aggravated rape of a victim under the age of thirteen years a violation of Louisiana Revised Statutes section 42 14 He pled not guilty and was tried by a Lafourche Parish jury The jury found the defendant guilty as charged and the trial court sentenced him to life imprisonment at hard labor without benefit of parole probation or suspension of sentence The defendant now appeals challenging the trial court denial of his s motion for change of venue Finding no merit in the assignment of error we affirm the conviction and sentence FACTS Between 2009 and 2010 the defendant engaged in seYUal acts with his six year old daughter N at their home in Thibodaux which is in Lafourche Parish L L N reported the incidents to a teacher and was subsequently interviewed at the s Children Advocacy Center CAC in Lafourche Parish At the CAC interview L N indicated the defendant had anal sex with her and forced her to perform oral sex on him The defendant also performed oral sex on her N testified at trial L consistent with her interview at the CAC The defendant was interviewed by the police and an audio statement was talcen In his statement the defendant admitted L N perfarmed oral sex on him He denied performing oral sex on her or penetrating her in any way 2 DISCUSSION In his sole assignment of error the defendant argues the trial court erred in denying his motion for change of venue Specifically the defendant contends that because of the widespread media coverage ofthe case he could not receive a fair trial in Lafourche Parish A defendant is Art I guaranteed a fair trial and an impartial jury La Const An 16 State v Sparks 88 La 5 68 So 3d 435 456 cert 0017 lUll denied 132 S 1794 2012 Thus the law provides for a change of venue when Ct the defendant establishes his inability to obtain an impartial jury or a fair trial Sparks 68 So 3d at 456 Louisiana Code of Criminal Procedure article 622 provides A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind ar 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 Only in exceptional circumstances such as in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob will prejudice against a defendant be presumed State v Magee 11 La 9 0574 12 28 So 3d quoting State v David 425 So 2d 1241 1246 La 1983 Absent such exceptional circumstances the defendant sburden on the motion for change of venue is to demonstrate actual prejudice Magee So 3d at The record in this case does not establish the presence of exceptional circumstances thus the defendant was required to establish actual prejudice 3 Proof of inere public knowledge or familiarity with the case is insufficient to establish actual prejudice Sparks 68 50 3d at 457 A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime rather he must show that there exists such prejudice in the collective mind of the community that a fair trial is impossible Magee So 3d at Relevant to the trial court determination of whether a change of venue s should be ordered are the factars set forth in State v Bell 315 So 2d 307 309 La i975 which include 1 the nature of the pretrial publicity and the particular degree to which it has circulated in the community 2 the connection of governmental 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 A trial court determination of whether the defendant has met his burden of s proof on the motion for change of venue will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion Magee So 3d at The reviewing court primary task is to consider the nature and scope of publicity s 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 arder to ascertain whether prejudice existed in the minds of the public which prevented the defendant from receiving a fair trial Magee So 3d at This inquiry into the nature and scope of publiciry disseminated in the community is facilitated by the Bell factars However courts must distinguish between mere 4 familiariYy with the defendant or his past and an actual predisposition against him Sparks 68 So 3d at 457 Another gauge of whether prejudice exists in the public mind is the number ofjurors excused for cause for having a fixed opinion Magee So 3d at In his brief the defendant points to several newspaper articles and some television coverage about the allegations against him Most of the referenced newspaper articles identified the defendant his employer the Lafourche Parish SherifPs Office and the charge he faced rape of a child The defendant asserts there was a strong likelihood of prejudice existing in the mind ofthe community After a thorough review of the record we conclude that the defendant has failed to show either actual or prestiuned prejudice against him to the degree a fair trial was impossible See Huls 676 So 2d at 171 The trial court prosecutors 72 and defense counsel conducted an extensive thorough voir dire of the prospective jurors The twelve jury was chosen from a pool of forty prospective person two jurors divided into three panels of fourteen prospective jurors each The prospective jurors were asked by the trial court whether they knew or had read anything about the case In the first voir dire panel two jurors indicated they had heard about the case One of the jurors indicated she had read about the case in the newspaper the day before and suggested that she would have difficulty setting aside what she had learned about the case and that she had already made up her mind The other juror stated someone had texted her the night before about the case and that she was not sure that she could be fair she further stated she felt she would hold against the defendant his decision to not testify Both of these jurors were struck for cause In the fourth panel of voir dire ten prospective jurors were questioned to select the alternatejuror The alternate juror chosen did not serve on the final twelve jary and was person dismissed by the trial court pxiar to deliberations 5 I In the second voir dire panel two jurors indicated they had heard about the case Rainie Stevens stated that she had read about the case in the newspaper a couple of days prior to her interview and she did not think she could put aside what she read and be fair Donna Duet also stated she had read a small article in the newspaper about the case however she indicated that she could put aside what she had read and be fair Stevens was struck far cause and Duet was peremptorily struck by defense counsel In the third voir dire panel two jurors indicated they had heard about the case Michelle Deroche indicated that while she had read about the case in the newspaper over a year before she could be fair Fay Becnel stated that she had read about the case in the newspaper more than one year prior to the trial and also that she had read a newspaper article about the case the day before trial Becnel indicated she had no preconceived notions about the case and that she could base her verdict on the evidence only Subsequently Deroche and Becnel were brought in chambers to elabarate on what tbey knew about the case Deroche informed the trial court that the article she read in the Daily Comet was about a police officer being accused of a sexual crime with a child She remembered no other specifics or details Becnel informed the trial court that the Daily Comet article she had read over a year ago was about the arrest of a sheriff working for the sheriff s department and she thought the victim was a stepchild under the age of four The Daily Comet article she had read the day before was just about the trial coming 2 The November 15 20ll Daily Comet article headlined Deputy rape trial this week s was as follows A former Lafourche sheriff s deputy accused of repeatedly raping a young family member is set to stand trial this week David Lewellen 34 was an in August 2010 for having a nine ested month sexual relationship with the girl who was 6 years old at the time Lafourche sheriffls deputies said Lewellen a Mississippi native who worked at the SherifPs Office as a corrections officer and patrol deputy during two stints was indicted on an aggravated rape charge in October 2010 6 up Both Deroche and Becnel indicated that what they had read in the newspaper was no different from what they had heard during voir dire Deroche and Becnel were peremptorily struck by defense counsel Of the forty prospective jurors questioned only six or 14 of them two had heard something about the case prior to being questioned during voir dire Five of those six jurors had read about the case in the newspaper Of those five jurors only two jurors indicated that because of what they had read they could not be impartial Thus less than 5 4 of the prospective jurors questioned were 7 influenced by the media to such an extent that they could not be fair and impartial All six jurors who had heard about the case were struck peremptorily or for cause and the twelve people who served as jurors had not heard about the case After all twelve jurors were picked defense counsel informed the trial court that he was satisfied with the composition of the jury The trial court then denied the motion for change of venue stating In support of the motion the defendant has entered into evidence articles from the Daily Comet the newspaper published in Lafourche Parish from August 2010 with a picture of the defendant in his uniform Lafourche Parish Sheriff Office unifonn with a story s about his arrest on the charge of aggravated rape The story relates comments by Sheriff Craig Webre about the defendant employment s s There a story from the WDSU website again about the arrest of the defendant basically the same article from 2010 that was in the Comet Another story from August 11 2010 referencing the investigation some facts about the defendant family status another s quotation by the sheriff about the defendant employment his job s performance and some of the details ofthe investigation Other stories from WGNO Another story from August 14 2011 in the Daily Comet basically recounting or revisiting the stories that were run earlier Quotations attributed to the director of the LSU School of Social Work and the executive director of Louisiana Foundation Against Jury selection is set to begin Wednesday in Judge Jerome Bazbera s courtroom If convicted Lewellen faces mandatory life in prison Lewellen was booked into the Lafourche jail the day he was azrested He has been moved several times and is now being held in Concordia Parish in lieu of a 250 bond 000 7 Sexual Abuse Those comments were in relation to the publication that the defendant himself had been the victim of sexual abuse Story from June 3 20 1 in the LaFourche Gazette Story from September 30 2010 from the Daily Comet Again this is a story about the grand jury indictment of the defendant and a brief recitation of the allegations against him Another story from August 11 where there is a reference to the sstatement admitting to some of the facts that formed the defendant basis of the charge against him Also submitted copies of the Lafourche Daily Comet and the Courier from November 15 yesterday with stories about the fact that the case was coming for trial We have selected a jury in this case fifty 52 people were two called to be considered and I think it was 53 I think we lost one and then picked up one on one panel So I think there were 53 people that were called to be interviewed in the voir dire process and there were relatively few less that I believe 10 percent of that number that actually admitted that they read a story The court interviewed two of them in chambers Neither of them were released by the court for But it s cause They were excused by peremptory challenge significant in the case and the motion that even after all of that and even after the challenges for cause that were made by the defendant that were denied that the defendant still did not exhaust his peremptory challenges He still had two left And that is a significant factor because if the court had continuously denied challenges for cause based on publicity and the defendant had e all of his austed challenges then he would be severely impaired in the jury selection process if he was exhausting all of his challenges on the publicity issue and didn thave any other challenges to consider for other people on the panel So by my count the defendant still had two peremptory challenges left after the third panel The motion to change venue is denied because the defendant has not carried his burden of proof to show that there is such prejudice in the collective mind of this community that a fair trial is impossible I think the jury selection process proves exactly the opposite that there is no prejudice in the collective mind of this community against this defendant in this case After considering the record we find no affirmative showing of error or abuse of the trial court sound discretion s While the record reveals that some of the prospective jurors possessed general knowledge of the case the defendant did not demonstrate the existence of actual prejudice that prevented him from receiving a fair trial Compare e State v Lee OS La 1 976 So 2d g 2098 08 16 8 109 132 cert denied 129 S 143 2008 State v Mc 03 La 37 Ct nning 1982 04 19 10 885 So 2d 1044 1065 cert denied 125 S 1745 2005 State v 66 Ct Frank 99 La 1 803 So 2d 1 State v Connolly 96 La 0553 O1 17 1680 97 1 7 700 So 2d 810 815 Further we find it particularly persuasive that defense counsel indicated he was satisfied with the composition of the jury and that he had not exhausted all of his peremptory strikes Finding no merit in fhe assignment oferror raised we affirm the defendant s conviction and sentence CONVICTION AND SENTENCE AFFIRMED 9
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