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State v. Guillory3/11/1998
Defendant when it referred to the Defendant's failure to present certain witnesses. The State replied that the objectionable argument occurred during the State's rebuttal to the Defendant's closing argument, and it was made in response to what the Defendant had said in his closing argument and thus was not an improper shift of the burden of proof.
During his closing argument, the Defendant attacked the State's case and questioned the failure of the State to call certain witnesses who gave the police information about the crime. During its rebuttal closing argument, the State answered the Defendant's closing argument and questioned why the Defendant had not called these witnesses. The three witnesses specifically referred to were Jewel Simon, a neighbor of Daniel Dougay, who told a reporter that she heard gunshots at the shop on the Thursday before the murders; Donna Clark, the girlfriend of Jeffery Tezeno, who went to the shop on the Saturday morning after the murders; and Jay Volaire, an acquaintance of the Defendant and Tezeno, who gave the police information about the activities of the Defendant and Tezeno on the weekend of the murders.
Under La. Code Crim.P. art. 774, closing arguments should be restricted "to evidence admitted, to the lack of evidence, to Conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice." Generally, before a verdict will be overturned on the basis of improper argument, the reviewing court must be convinced the jury was influenced by the remarks and the remarks contributed to the verdict. State v. Moore, 432 So.2d 209 (La. 1983), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); State v. Messer, 408 So.2d 1354 (La. 1982).
The remarks the Defendant complains about clearly fall within those arguments permitted by Article 774. The State was simply rebutting the Defendant's arguments that commented upon the failure to call certain witnesses. Thus, this portion of the argument is without merit.
The second claim of the Defendant is that he was not allowed to argue at closing arguments that Jeffery Tezeno habitually carried a gun. The State objected that no evidence was presented, but the Defendant argues that several witnesses so testified. It is within the sole province of the jury to decide what the testimony has established and what it has not established. State v. Lee, 364 So.2d 1024 (La. 1978). Whether or not Tezeno habitually carried a gun is a Conclusion of fact the jury had to draw from the evidence presented. Even if the trial Judge erred in sustaining the State's objection, reversal of the convictions would result only if this court finds that the jury was influenced by the remarks and the remarks contributed to the verdict. We find that the issue was tangential and thus could not have contributed to the verdict.
ARGUMENT NO. 8 Ä ASSIGNMENT OF ERROR NOS. 3, 4, & 5
This argument concerns objections during jury selection. Venue for jury selection was changed from Calcasieu Parish to East Baton Rouge Parish after the first attempt to select a jury resulted in a mistrial.
The Defendant first contends that the trial court failed to excuse for cause Charles Thibodeaux, Mark Daily, Pennie McGee, Kim Gobert, and Mavis Trevino. During jury selection, the Defendant exercised nine peremptory challenges but he did not exhaust all of the twelve peremptory challenges given him by La. Code Crim.P. art. 799.
La. Code Crim.P. art. 800 provides that " defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at
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