STATE OF LOUISIANA v. MICHAEL LEE GUIDRY (2025)

The defendant, Michael Lee Guidry, was charged by amended grand jury indictment with first degree murder, in violation of La. R.S. 14:30(A)(5). He pled not guilty and, following a jury trial, was found guilty of the responsive verdict of manslaughter, in violation of La. R.S. 14:31. The trial court sentenced the defendant to forty years at hard labor. He now appeals, designating three assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

The body of seventy-year-old Patricia Lynn Russo was discovered by Patricia McKinley, who cleaned Ms. Russo's house, on October 1, 2018, in Morgan City, Louisiana. Ms. Russo, who was wheelchair bound, had been strangled, bludgeoned, and stabbed, and her throat had been slit. A few weeks prior to her death, Ms. Russo hired the defendant, Ms. McKinley's roommate, to mow her grass and do other small jobs for her. The defendant was developed as a suspect when Ms. McKinley informed the police she had not heard from him in a few days, and the police learned the defendant used Ms. Russo's debit card to withdraw money from her bank account in the days following her murder. He was apprehended on October 6, 2018, in Independence, Louisiana.

ASSIGNMENT OF ERROR ONE

In his first assignment of error, the defendant asserts the evidence was insufficient to find him guilty of manslaughter beyond a reasonable doubt. Specifically, he claims the circumstantial evidence failed to exclude his reasonable hypothesis of innocence that James Russo, Ms. Russo's estranged husband, killed Ms. Russo, after which the defendant entered her home, found her dead, and took the purse containing her debit card.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Coleman, 2021-0870 (La. App. 1st Cir. 4/8/22), 342 So.3d 7, 11, writ denied, 2022-00759 (La. 11/21/23), 373 So.3d 460; see also La. Code Crim. P. art. 821(B).

When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test for evaluating the evidence; rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. State v. Cabellero, 2022-0441 (La. App. 1st Cir. 11/4/22), 356 So.3d 389, 394, writ denied, 2022-01777 (La. 4/25/23), 359 So.3d 982. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Bessie, 2021-1117 (La. App. 1st Cir. 4/8/22), 342 So.3d 17, 22, writ denied, 2022-00846 (La. 9/20/22), 346 So.3d 802.

The defendant was charged with first degree murder, which is defined, in pertinent part, as the killing of a human being “[w]hen the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is ․ sixty-five years of age or older.” La. R.S. 14:30(A)(5). The jury found him guilty of the responsive verdict of manslaughter, which, in pertinent part, is a homicide committed without any intent to cause death or great bodily harm when the offender is engaged in the perpetration or attempted perpetration of any felony or of any intentional misdemeanor directly affecting the person. La. R.S. 14:31(A)(2)(a).

The State bears the burden of proving the elements of the offense, along with the burden of proving the defendant's identity as the perpetrator. When, as in this case, the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

Ms. McKinley testified that she cleaned Ms. Russo's house on Mondays at 10:00 a.m. According to Ms. McKinley, when she arrived on Monday, October 1, 2018, Ms. Russo did not answer the door when she knocked. Ms. McKinley testified she opened the unlocked door, went inside, and found Ms. Russo dead on the couch. Ms. McKinley testified she ran out the house and told some men working on the road, who indicated they would call 911.

Ms. McKinley further testified that she had lived with the defendant for a few years at the time of the murder. According to Ms. McKinley, on Saturday, September 29, 2018, the defendant was home when she left the house around 6:30 or 7:00 p.m. but was not there when she returned at 9:00 or 9:30 p.m. She testified she called the defendant when she got home, and he told her he was “down the road.” Ms. McKinley testified that when she was interviewed by the police after finding Ms. Russo, she told the police she had not seen the defendant since Saturday evening.

Ms. McKinley's son, Timothy McKinley, testified that the defendant was unemployed in September of 2018 and seemed stressed out about losing his job. Mr. McKinley testified that the last time he saw the defendant was on Saturday, September 29, 2018, at his mother's house. According to Mr. McKinley, the defendant told him he had taken Ms. Russo, whom the defendant referred to as “Crazy Lynn,” to a doctor's appointment in Lafayette, and complained that she had only given him $15.00. Mr. McKinley testified the defendant sounded agitated, and he opined the defendant had expected more money from Ms. Russo.

Sergeant Dustin Fromenthal, then a detective with the Morgan City Police Department, was the lead investigator in the case. He testified the Morgan City Police Department received a 911 call around 10:00 a.m. on October 1, 2018, regarding the murder. During the course of the investigation, Sergeant Fromenthal obtained the defendant's and Ms. Russo's cell phone records, which showed that her phone had last been used on September 29, 2018, to call the defendant. Sergeant Fromenthal identified videos depicting the defendant's red Ford truck driving towards Ms. Russo's house at 6:50 p.m. and leaving the area at 8:50 p.m. on September 29, 2018. The driver of the vehicle was wearing a long sleeve grey shirt or sweatshirt.

Sergeant Fromenthal testified that the Morgan City Police Department retrieved Ms. Russo's bank records, which showed a withdrawal of $200.00 from her account at the Morgan City Bank ATM at 9:00 p.m. on September 29, 2018; a balance inquiry at the Bayou Teche Casino in St. Martinville, Louisiana, at 1:55 a.m. on September 30, 2018; a $200.00 withdrawal at a truck stop in Vinton, Louisiana, at 8:11 a.m. on September 30, 2018; a $200.00 withdrawal at an ATM in Katy, Texas, at 10:34 a.m. on September 3 0, 2018; a $103.00 withdrawal at an ATM in Sealy, Texas, at 10:55 a.m. on September 30, 2018; and a $303.95 withdrawal at a truck stop in DeFuniak Springs, Florida, at 9:44 p.m. on October 1, 2018. Sergeant Fromenthal identified surveillance videos showing the defendant at the locations in Louisiana, Florida, and Texas where money was withdrawn from Ms. Russo's bank account.

Sergeant Fromenthal testified he was able to identify the defendant wearing a grey hoodie at the Morgan City Bank ATM from surveillance video. Sergeant Fromenthal also identified the defendant exiting his truck at the Why Not Lounge in Berwick, Louisiana, at 9:17 p.m. on September 29, 2018, and walking to the back corner of the parking lot where the dumpster was located. Sergeant Fromenthal next identified the defendant walking into the Why Not Lounge in a yellow shirt, yellow hat, and dark shorts. According to Sergeant Fromenthal, the dumpster at the Why Not Lounge was subsequently searched, but had already been dumped into the landfill.

Sergeant Fromenthal testified that the defendant's truck was located on the side of I-10 westbound outside of Gulfport, Mississippi, on October 5, 2018. He described evidence collected from the truck, including a hammer, a knife, a towel with blood on it, a magazine, and DNA swabs of the foot pedals in the truck.² The defendant was located the following day at his aunt's house in Independence, Louisiana. He was wearing the clothes he was seen in on the surveillance videos and his tennis shoes were located in his aunt's washing machine.

Sergeant Travis Trigg of the Morgan City Police Department testified he was involved in the homicide investigation, and arrived at Ms. Russo's house on October 1, 2018. He testified Ms. Russo's television was on ESPN, which was relevant to his investigation because he learned Ms. Russo was an avid LSU fan and the Saturday night LSU game, with an 8:00 p.m. kickoff, was televised on ESPN. He further testified he conducted a forensic download of Ms. Russo's phone. According to Sergeant Trigg, on September 29, 2018, at 4:02 p.m., her phone received a call from the defendant's phone, which lasted approximately six minutes. At 4:21 p.m., there was an outgoing call from Ms. Russo's phone to the defendant's phone, and another call from the defendant's phone to Ms. Russo's phone at 4:50 p.m. Sergeant Trigg testified there were no other outgoing or incoming calls until October 1, 2018, but there were eight cancelled calls on September 29, 2018 from 5:41 p.m. to 6:45 p.m., and approximately 19 missed calls beginning September 30, 2018 at 10:20 a.m. until October 1, 2018.

Dr. Christopher Tape performed the autopsy on Ms. Russo on October 2, 2018. He determined there were three causes of Ms. Russo's death: blunt force injuries to the head, sharp force injuries to the neck, and strangulation.

Ryan Russo, Ms. Russo's son, testified he had last seen his mother on September 29, 2018. Ryan said Ms. Russo had a problem with alcohol and, though she was still married to his father, Ms. Russo and James Russo were separated and did not live together at the time of her murder. Ryan testified Ms. Russo's drinking problem caused disruption between his parents, and he had seen his parents get into verbal altercations but had not seen a physical altercation.

James Russo testified he had been married to Ms. Russo for twenty-four years at the time of her death. He testified he did not live with Ms. Russo but he had keys to her house. He recalled telling the police that Ms. Russo tried to make him jealous of the defendant. James testified that on September 29, 2018, he watched the LSU game at a friend's camp. He later testified that he watched part of the game at a bar. James said he had been convicted of simple battery in 1992 during his job as a bartender/bouncer.

The State introduced evidence of phone calls made by the defendant while he was in jail. In a phone call made on March 14, 2019, the defendant spoke about his time being “on the run” from the police and said: “I'm accused of doing what I did.” In another phone call on December 25, 2022, the defendant said he could not recall what happened that night, because he “blacked out.” The defendant said he recalled going to Ms. Russo's house to watch the LSU game but had no recollection of what happened there, and his next memory was waking up in his truck in Corpus Christi, Texas.

On appeal, the defendant argues the State failed to offer any direct evidence of his involvement in Ms. Russo's murder. He notes there were no eyewitnesses to the murder, and his presence at Ms. Russo's house that night was explained by her inviting him to watch the LSU game. Further, he notes there was limited forensic evidence obtained from his truck or his person connecting him to the murder. The defendant contends the circumstantial evidence failed to exclude every reasonable hypothesis of innocence, specifically that James killed Ms. Russo. In contrast, the State argues the defense's hypothesis of innocence was presented to the jury, which it reasonably rejected.

In this case, the defendant's conviction was based on circumstantial evidence. Louisiana Revised Statutes 15:438 does not establish a stricter standard of review than the more general rational juror's reasonable doubt formula; rather, it serves as a helpful evidentiary guide for jurors when evaluating circumstantial evidence. State v. Major, 2003-3522 (La. 12/1/04), 888 So.2d 798, 801. Importantly, the Jackson standard of review does not allow a jury to speculate on the probabilities of guilt where rational jurors would necessarily entertain a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1311 (La. 1988). The requirement that jurors reasonably reject the hypothesis of innocence advanced by the defendant in a case of circumstantial evidence presupposes that a rational rejection of that hypothesis is based on the evidence presented, not mere speculation. State v. Quinn, 2019-00647 (La. 9/9/20), 340 So.3d 829, 834 (per curiam), cert. denied, ___ U.S. ___, 141 S.Ct. 1406, 209 L.Ed.2d 139 (2021).

In reviewing the evidence presented at trial, we cannot say the jury's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. In particular, the State presented evidence that Ms. Russo received a call from the defendant on September 29, 2018, at 4:40 p.m., which was the last time an outgoing or incoming call was made or answered. Surveillance video showed the defendant in his truck traveling towards Ms. Russo's house at 6:50 p.m., leaving the area at 8:50 p.m., and withdrawing money from Ms. Russo's account at an ATM a few minutes later. Surveillance video and Ms. Russo's bank records showed the defendant withdrew money from Ms. Russo's account in various places in Louisiana, Texas, and Florida after the murder. Surveillance video showed him near a dumpster in Berwick, Louisiana, where he had ample time and opportunity to dispose of any clothing or weapons connecting him to the murder. Items with Ms. Russo's DNA profile were found in the defendant's truck. Finally, the defendant made several inculpatory statements over the phone while in jail, stating that “I'm accused of doing what I did,” and contending he could not recall what happened the night of Ms. Russo's murder, alleging he “blacked out.”

Furthermore, the jury could have reasonably concluded the defendant fled after the offense to avoid apprehension. The evidence showed the defendant left Morgan City and traveled throughout Louisiana, Texas, Mississippi, and Florida in the days following the murder. He was eventually apprehended at his aunt's house in Independence, Louisiana. Flight and attempt to avoid apprehension indicate consciousness of guilt and, therefore, are circumstances from which a juror may infer guilt. State v. Earl, 2015-13 83 (La. App. 1st Cir. 6/6/16), 2016 WL 3146011, *8 (unpublished), writ denied, 2016-1329 (La. 12/5/16), 213 So.3d 393.

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review of the record, we are convinced a rational trier of fact, viewing the evidence in the light most favorable to the State, could find the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of manslaughter and the defendant's identity as the perpetrator. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR TWO

In his second assignment of error, the defendant alleges the trial court erred in failing to remove a juror who became “disqualified” after the trial had begun and replacing the juror with an alternate.

Louisiana Code of Criminal Procedure article 789(A) provides that “[a]lternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.” The determination of whether a juror has become unable to perform or disqualified to perform their duty is one made by the trial court in its discretion. See State v. Derouselle, 99-3283 (La. 4/28/00), 761 So.2d 1269, 1270 (per curiam).

After the trial had started and Ryan Russo had testified, juror Anthony Acosta notified the trial court that he knew James Russo. As a result, the trial court conducted a hearing. Mr. Acosta testified he worked in Stephensville, where James had a camp, and he saw James a couple of times a week when he worked in the area. He testified he had not talked to James “about the situation.” Mr. Acosta further denied that he socialized with James. He testified James's sister knew his neighbor in Morgan City.

When asked if he could be fair and impartial, Mr. Acosta initially said he did not know. The trial court questioned him as follows:

Q. [Y]ou brought it up because you don't think you can be fair and impartial?

A. If I needed to maybe I could.

Q. Well, it's not a question of needed to, we have alternate jurors, but the State and the defendant have a right to have the case heard by the initial jurors who are not otherwise disqualified and there are certain parameters about jurors[’] past relationship with victims or children or spouses of victims that could impact your ability to be fair and impartial. And there are casual relationships that, while it might make you a tad uncomfortable it won't in the end affect your ability to be fair and impartial.

A. Right.

Q. So on which side of the scale do you think this falls?

A. It might affect me a little bit.

Q. How much is a little bit? What would you be thinking?

A. Probably half amount, you know.

When questioned by the State, Mr. Acosta answered affirmatively when asked if he could decide the case based solely on the evidence presented at trial.

Without questioning Mr. Acosta, defense counsel moved to remove him from the jury, which the trial court denied, stating:

Well, if there was such a thing as a perfect juror I would agree with you, but we're in a relative rural community where it's expected that people know of other people and they will see him and be cordial to them. I think I went into some detail with Mr. Acosta about the extent of his relationship with James Russo and the sister and the testimony was unequivocal that it was a casual relationship only. They did not socialize or talk to one another out of, “Hello, how are you,” casual contact and for that reason and for the reason ․ I specifically asked him if he could put those relationships such as they are, they aren't very deep, aside he unequivocally state[d] he could. So while he may be a bit uncomfortable, which is normal and natural in small rural areas to sit on juries affecting people you know of, it doesn't rise to the level of him being [un]able to be a fair and impartial juror. So if something else comes up during the trial that may throw a different light on the situation I'll be glad to reconsider it because we do have two alternates, but for the time being I'm convinced that Mr. Acosta can remain on the jury.

Defense counsel objected to the ruling.

On appeal, the defendant argues the trial court erred in denying the defense's motion to remove Mr. Acosta from the jury, arguing that had he been candid during voir dire, he would have been challenged by the defense. The defendant contends Mr. Acosta's relationship with James, although characterized by the trial court as casual, was significant because his defense was that James was the perpetrator of the murder. The State argues the trial court did not abuse its vast discretion in failing to remove Mr. Acosta from the jury.

At the outset, we note that Mr. Acosta indicated he was not aware he knew James until hearing the opening statements and testimony and seeing Ryan on the stand, and he advised the trial court as soon as he “put it together.” After extensive questioning by the trial court and the State, Mr. Acosta unequivocally stated he could follow the law and listen to the evidence presented. He denied having a close relationship with James and merely stated that he saw him occasionally. The trial court listened to his responses and was able to observe his overall demeanor while responding to questions. The trial court provided extensive reasons for its ruling based on its observations, and reached its findings based on a well-articulated credibility determination. We find no abuse of discretion in its finding. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

In his third assignment of error, the defendant argues the trial court erred in excluding evidence of James’ prior arrests. The defendant alleges the trial court's curtailment of his questioning deprived him of his constitutional right to present a defense.

Louisiana Code of Evidence article 609.1 provides, in pertinent part:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.

B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.

C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:

(1) When the witness has denied the conviction or denied recollection thereof;

(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or

(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Despite this prohibition, the defendant sought to introduce evidence of James’ prior arrests pursuant to La. Code Evid. art. 404(B)(1)(a), which provides:

B. Other crimes, wrongs, or acts; creative or artistic expression. (1)(a) Except as provided in Article 412 or as otherwise provided by law, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The trial court conducted a “Reverse 404(B)” hearing, at which the defendant alleged James had been arrested for domestic battery involving Ms. Russo and, more recently, for three counts of unauthorized entry of an inhabited dwelling, stalking, and battery of another woman. The defendant argued the circumstances of Ms. Russo's murder “could very well be similar to the circumstances of the crime [James] was accused of.” The State proffered James’ rap sheet into evidence during the hearing. Relevant hereto, the rap sheet revealed James was arrested in 2003 for simple battery against Ms. Russo. This charge was nolle pressed. The rap sheet also showed a 2021 arrest for three counts of unauthorized entry of an inhabited dwelling, stalking, and battery. These charges involved a different victim; the charges were nolle pressed on May 15, 2023. The trial court ruled evidence of James’ prior arrests was not admissible.

The trial court's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La. 1992). We find no abuse of discretion in the trial court excluding James’ prior arrests from evidence. The trial court did not prevent the defendant from raising his defense that he was misidentified as the killer and that James was the individual who actually killed Ms. Russo. Rather, the trial court's ruling only prevented the defendant from arguing that James’ previous arrests reflected motive and intent in connection with Ms. Russo's murder. Thus, although presented as a constitutional concern, the defendant was not denied a meaningful opportunity to present a defense; he was simply denied the use of inadmissible, irrelevant, and highly prejudicial evidence. See La. Code Evid. arts. 403, 404.

Accordingly, we find the trial court did not err in excluding the evidence, and this assignment of error lacks merit.

PATENT ERROR

Pursuant to La. Code Crim. P. art. 920(2), this court routinely conducts a review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023-0117 (La. App. 1st Cir. 11/3/23), 378 So.3d 766, 775, writ denied, 2024-00027 (La. 5/21/24), 3 85 So.3d 242. After a careful review of the record, we have found one patent error.

The transcript reflects that after the trial court imposed the defendant's sentence, it inaccurately advised he had “two years in which to apply for post-conviction relief.” The prescriptive period for filing an application for post-conviction relief is two years after the judgment of conviction and sentence become final under the provisions of La. Code Crim. P. arts. 914 or 922. See La. Code Crim. P. art. 930.8(A); State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1142-43, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. Nevertheless, the trial court's failure to correctly advise the defendant of the prescriptive period has no bearing on the sentence and is not grounds to reverse the sentence or remand for resentencing. Out of an abundance of caution and in the interest of judicial economy, we advise the defendant that La. Code Crim. P. art. 930.8 generally provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. Code Crim. P. arts. 914 or 922. LeBoeuf, 943 So.2d at 1143.

Accordingly, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

I respectfully dissent, and would remand for a new trial.

The record reflects, on the second day of trial, a juror disclosed for the first time that he knew James Russo, a key witness at trial. The juror candidly expressed uncertainty about his ability to remain fair and impartial when he realized he knew the witness. This conversation occurred in chambers in the presence of both counsel, and was transcribed.

The trial judge questioned him as follows:

Q. And how, if at all, would [knowing the witness] impact your ability to be fair and impartial to all parties in this case?

A. I really don't know.

․

Q. ․ [Y]ou brought it up because you don't think you can be fair and impartial?

A. If I needed to maybe I could.

Q. Well, it's not a question of needed to, we have alternate jurors, but the State and the defendant have a right to have the case heard by the initial jurors who are not otherwise disqualified and there are certain parameters about jurors past relationship with victims or children or spouses of victims that could impact your ability to be fair and impartial. And there are casual relationships that, while it might make you a tad uncomfortable it won't in the end affect your ability to be fair and impartial.

A. Right.

Q. So on which side of the scale do you think this falls?

A. It might affect me a little bit.

Q. How much is a little bit? What would you be thinking?

A. Probably half amount, you know.

At this point the trial judge stated, “Okay. All right. Any questions.”

Next, the juror was questioned by Mr. Holtzclaw, the State's attorney:

Q. ․ so if the Judge tells you or asks you if you could put what you just told us aside and the judge the facts of this case just based on the evidence that's presented in this courtroom in this trial can you do that?

A. Yeah.

However, based on the record before us, the trial judge did not follow up. The questioning ended. The majority states that the trial judge felt that the juror could “unequivocally” follow the law and evidence presented. This is not supported by the record. The trial judge never received an affirmative response from the juror that he could be fair and impartial.

At this point, the defense counsel objected and asked for the juror to be removed because of his responses. Further, the defendant's defense was that Mr. Russo killed his estranged wife, the victim, Mrs. Russo. This theory could have made it difficult for the juror to stay impartial. At this stage of the trial, in an abundance of caution, the trial judge should have disqualified this juror and impaneled an alternate, as there were two available.

A defendant is guaranteed an impartial jury and a fair trial. State v. Frank, 1999-0553 (La. 01/17/01), 803 So. 2d 1, 12. The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney, and the witnesses who may testify at trial. Rather, the law requires that jurors be fair and unbiased. State v. Shelton, 377

So. 2d 96, 102 (La. 1979). A juror may be found incompetent to serve because of death, illness, or any other cause which renders a juror unfit or disqualified to perform their duty as prescribed. State v. Cass, 356 So. 2d 396, 397 (La. 1977) See also State v. Derouselle, 1999-3283 (La. 04/28/00), 761 So. 2d 1269, 1270 (where, after trial began, removing a juror after having doubts of her competency to serve impartially was “proper exercise of the trial court's discretion.”)

Since this occurred during trial, defendant was unable to utilize a peremptory challenge. Louisiana Code of Criminal Procedure Article 797(2) allows for an excusal of any juror who “is not impartial, whatever the cause of his partiality,” an option that was not afforded the defendant given that trial had started. Rather, the defendant had to rely on the trial judge to ensure a fair trial. This would have been accomplished by removing the juror and empaneling an alternate. The Louisiana Code of Criminal Procedure Article 798 states that an “[a]lternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.”

I agree with the majority that a trial judge has vast discretion in deciding whether to strike a juror; however, in the instant case, the juror's consistent hesitancy and acknowledgment that his relationship with the victim's husband would affect his fairness, created substantial doubt about his qualification. As such, the defendant was not guaranteed an impartial jury and a fair trial. Based on the record before us, I would find the trial judge erred in allowing the juror to remain.

For these reasons, I dissent.

FOOTNOTES

2.   DNA testing was performed on the pieces of evidence collected from the defendant's truck. The DNA profile obtained from a blood stain on a piece of fabric and a magazine matched Russo's DNA profile.

PENZATO, J.

Balfour, J., dissents with reasons.