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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 71 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 21st day of October, 2003, are as follows: BY KIMBALL, J.: 2002-K -2812 STATE OF LOUISIANA v. FRANK W. KANG (Parish of Jefferson) (Second Degree Murder) For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for it to consider defendant's remaining assignment of error. REVERSED and REMANDED CALOGERO, C.J., dissents and assigns reasons.

10/21/03

SUPREME COURT OF LOUISIANA
No. 02-K-2812 STATE OF LOUISIANA v. FRANK W. KANG
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON

KIMBALL, Justice In the instant case, we granted a writ of certiorari to determin e wh et h er a trial judge erred in refusing to strike a prospective juror for cause. A fter reviewing the

en t ire record of the prospective juror's voir dire, we conclude that the trial judge did n o t abuse her broad discretion when she denied the defendant's challenge for cau s e based on remarks the prospective juror made that allegedly revealed his bias towards police t es t imo n y . For the reasons that follow, we find the prospective juror's

res p o n s es , wh en viewed as a whole, do not reveal facts from which his bias, prejudice or inability to render a judgment according to law and ev idence may be reasonably implied. The judgment of the court of appeal t o t h e contrary is reversed, and the case is remanded to the co u rt o f appeal for it to consider the defendant's remaining assignment of error. FACTS AND PROCEDURAL HISTORY On March 4, 2000, the defendant, Frank W. Kang, an d a g roup of friends

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were in volved in a confrontation with another group of individuals at a Metairie nightclub. After security broke up the fight, the participants left the premises in three separate vehicles, each traveling in the same direction on Causeway Bo u lev ard. Defendant, wh o was a passenger in one of the vehicles, fired several shots into one of the other vehicles. One of the shots s truck the driver of the other vehicle in the neck and severed his carotid artery. On April 6, 2000, a grand jury indicted the defendant fo r o n e count of second degree murder in violation of La. R.S. 14:30.1. On November 16, 2000, a Jeffers on Parish jury found the defendant guilty as charged. On August 8, 2001, the defendant moved for a new trial based on the trial court's refusal to strike a prospective juror, Lawrence Whitcomb, fo r cause. The trial court denied the defendant's motion and sentenced the defendan t t o life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Th e defendant sought review based on two assignments of error. In h is firs t assignment of error the defendant claimed the trial court sh o u ld h av e stricken Mr. Whitcomb for cause because he openly exp res s ed a predisposition in favor of the State and police witnesses durin g voir dire and expressed an inability or reluctance to follow the law. The court of appeal determined that t h e trial court erred when it failed to excuse Mr. Whitcomb for cause because his voir dire t es t imony clearly indicated he would give more weight to t h e t es timony of a police officer than to that of a lay witness. Therefore, the court of appeal reversed the defendant's co n v iction and sentence and remanded the cas e t o the trial court for a new trial, pretermitting a discussion of the remaining assignment of error. State v. Kang , 01-1262 (La. App. 5 Cir 10/29/02), 831 So.2d 409. We granted the s tate's application for certiorari to determine whether the court
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of appeal correctly concluded that the trial court abused its discretio n in refu s ing to strike prospective juror W h it co mb fo r cause. State v. Kang , 02-2812 (La. 4/21/03), 847 So.2d 1176. LAW AND ANALYSIS Prejudice is presumed when a trial court erroneously denies a challenge for cause and t h e d efendant ultimately exhausts his peremptory challenges. State v. Robertson , 92-2660, p. 3 (La. 1/14/94), 630 So .2d 1278, 1280. This is because an erroneous ruling d ep riv in g an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Cross, 93-1189, p . 6 (La. 6/30/95), 658 So.2d 683, 686. Therefore, to prove there has been an error

warranting rev ers al o f a conviction and sentence, a defendant need only show: (1) the trial court's erroneous denial of a challenge for cause; and (2) the use of all of his perempto ry ch allen ges. Cross, 93-1189 at p. 6, 658 So.2d at 686; Robertson , 922660 at p. 3, 630 So.2d at 1281. The defen d an t in this case exhausted all of his peremptory challenges; therefore, we n eed o n ly determine the issue of whether the trial judge erroneously denied the defendant's challenge for cause of Mr. Whitcomb. Thu s , as a s tarting p oint, we note that under La.C.Cr.P. art 797, a defendant may challenge a ju ro r fo r cause if: (2) the juror is not impartial, whatever the cau s e o f his p artiality. An opinion or impression as to the guilt o r innocence of t h e d efendant shall not of itself be sufficient grounds for challen g e to a juror, if he declares, and the court is satisfied, that he can render and imp art ial verdict according to the law and the evidence; . . . (4) The juror will not accept the law as giv en to him by the court. Initially, M r. W h itcomb stated that his next door neighbor was a Major in

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ch arge of the Jefferson Parish Street Crimes Unit. Upon further questioning ab o u t his relationship with his neighbor, he indicat ed h e could put any previous conversations with his neighbor aside in deciding this case an d t h at h e never heard anything ab o u t t h is case. When asked if he would be able to be a fair and impartial juror in light of his association with his neighbor, Mr. Whitcomb res p o n d ed, "[w]eighing testimony equally, I'm going to probably tend to put more weight on t h e Deputies, especially if it's on things they have o b served." Mr. Whitcomb also Further, Mr.

indicated that he would initially regard the defendant as innocent.

Whitcomb indicated that even though h e t hought defendant probably did something wrong to end up in court, he would not hold it against the d efen d an t n o r would he hold the fact that the defendant was arrested against him. When asked what his vote would be after hearing all the evidence he thought defendant "maybe did this," Mr. Whitcomb stated his vote "would probably b e No t Gu ilty." When Mr. Whitcomb was asked whether he would automat ically disbelieve a defendant and/or whether he t h o u g h t a defendant would say whatever it took to get off the hook, Mr. Wh it co mb responded, "No." Additionally, when asked whether he would want someone like himself as a juror if h e was on trial for second degree murder, Mr. Whitcomb responded, "Yes." He stated that he would vote "not guilty" if the state could not prove beyond a reasonable doubt that the defendant was not engaged in self-defense. Defendant argues that Mr. Whitcomb is not impartial because during his voir dire testimony he in s is t ed that he would probably credit police witnesses over lay wit n es s es in any credibility contest and, further, that the trial court never succeeded in rehabilitating him. Additionally, the defendant avers that when Mr. Whitcomb was quest ioned about his relationship with his neighbor, he took the opportunity to voice his attitude on the credibility of policemen and did not mince words about his opinion.
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Generally, an individual who will unques t io n ab ly credit the testimony of law enforcement officers over that of defense witnesses is not co mp etent to serve as a juror. S t a t e v. Allen , 380 So.2d 28, 30 (La. 1980); State v. Jones, 282 So.2d 422, 431 (La. 1973). However, a mere relationsh ip between a prospective juror and a law enforcement officer is not of itself grounds to strike the juror for cause. State v. Anthony, 98-0406, p. 24 (La. 4/11/00), 776 So.2d 376, 392; State v. Smith , 430 So.2d 31, 38 (La. 1983). Additionally, a prospective juror's seemingly prejudicial

response is not g ro u n d s fo r an automatic challenge for cause, and a trial judge's refusal to excuse him on the gro u n d s o f imp artiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willin g n ess and ability to decide the case impartially according to the law and evidence. State v. Lee, 559 So.2d 1310, 1318 (La. 1990); State v. Baldwin , 388 So.2d 664, 671-72 (La. 1980), cert. denied , 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981); Allen , 380

So.2d at 30. But, a challenge for cause should be g ran t ed , even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, preju d ice or inability to render a judgement according to law may be reasonably implied. State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990).

When defendant challenged Mr. Whitcomb for cause, the trial court further questioned Mr. Whitcomb regarding his earlier responses about po lice testimony and the following exchange took place: Q: Mr. Whitcomb, you were asked a question with regard to whether you would give Deputies more cred ib ility as witnesses than others. The law says that every witness that t h e credibility of each witness must be decided separately, based upon t h e testimony of that witness. You can't, as a matter of law, give anyon e's testimony more weight just because they're Deputies.
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A: I don't see how people can honestly say Q: If you don't think you honestly can, then that A: I mean, you know, if I have to. Yo u kn o w, y o u're asking people as if they're trained experts o n cert ain things. So you know, some parts of their testimony, depending on what it is , I'm going to put - you know, I mean if you ask a Deputy if he remembered wh at somebody was wearing, over somebody else, I'll probab ly believe him becauseQ: If you what? A: If you ask two eyewitness es , an d o ne is a Deputy and one is not. Q: You don't think, because he is trained. A: Because he is trained and he takes, you know, t hey're trained on that. I mean, I'm trained on certain things. And you know, I have to put mo re v alue on that, I mean, honestly, you know. I mean just to say I'm not going to I'm going to dis believe somebody just because they're you know, that's the case. W h en I'm looking at two statemen t s p eo ple make, I have to be honest, you know. I have to Q: Okay; I understand. Thank you. A: So that's what my answer was . trying to say. Q: I understand; okay. That's what I was

Following this exchange, the trial court denied defendant's ch allenge for cause of Mr. Whitcomb . In d en ying the challenge, the trial court determined that Mr.

Whitcomb was not saying that he would g iv e a deputy's testimony more weight just because he or she was a deputy. Rather, the trial co u rt fo u n d that Mr. Whitcomb's voir dire testimony was that he would give weight to a deputy's train in g in t he area of observation. In State v. Lee , 93-2810 (La. 5/23/94), 637 So.2d 102, this court reiterated the
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broad discretion afforded trial courts' rulings on motions to strike juro rs fo r cause because of their ability to get a first person impression of prospective jurors during voir dire. We characterized our jurisprudence as follows: We have repeatedly held that a t rial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination as a whole, that the ju d g e's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this Court reverse the ruling of a trial ju d g e .... Lee , 93-2810 at p. 9, 637 So.2d at 108 (quoting State v. Passman , 345 So.2d 874, 880 (La. 1977)). This standard is utilized since the trial co urt has the benefit of seeing the facial expres s io ns and hearing the vocal intonations of the members of the jury venire as they respond to questioning. Anthony, 98-0406 at p. 25, 776 So.2d at 392. Such expressions and intonations are not readily apparent at the appellat e lev el where a review is based on a cold record. Lee, 93-2810 at p. 9, 637 So.2d at 108. A review of the entire voir dire record reveals that the trial court did not abuse its discretion in denying defendant's ch allenge for cause of Mr. Whitcomb. Mr. Whitcomb did not state he would give more weight to an officer's testimony regarding anything outside of his or her powers of observation, nor did he state he would automatically believe the testimony of an officer simp ly b ecause he was a police officer. He s imp ly in dicated that because police officers are trained in powers of observation, he would probably give more weig h t t o their observations. This testimony, in and of itself, does not rise to the level of a prejudicial statement such that the trial court was required to rehabilitate the prospective juror. Further, Mr. Whitcomb agreed he would initially presume defend an t t o be innocent and stated he would vote "not guilty" if the State did not prove beyond a reasonable doubt that the
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crime was not committed in self-defense.

The trial court heard Mr. Whitcomb's

testimony and observed his expressions and mannerisms. After review of the record, we cannot find the trial court abused its discretion in d en y in g defendant's challenge for cause as to Mr. Whitcomb. Both in brief and oral argument, the defendant places much emphasis on M r. Whitcomb's u s e of the word "probably" in response to defense counsel's question regarding his likely vote if h e thought "maybe" the defendant was guilty. The voir dire transcript of defense counsel's question and Mr. Whitcomb's res p o n s e reads as follows: Q: If you were a juror that decid ed t h is case, and after having heard all of the evidence in the case, you thought that maybe the Defendant did this? A: Maybe, it would probably be Not Guilty. The defendant argues that "probably" indicates M r. Whitcomb's unacceptable hesitancy to find the defendant not guilty if the state fails to prove it s case beyond a reasonable doubt. However, we note that Mr. Whitco mb first used the word

"probably" when he stated that he would "probably" tend to believe the testimony of police officers over that of lay wit n es ses; therefore, if we were to give "probably" the inference that the defendant desires, we would not be here in the first place. It seems that Mr. Whitcomb did not utilize the word "probably" to demon s t rate his "insistence" on crediting police testimony or out of an unwillingness to follow the law as provid ed b y t h e t rial court, but rather, it seems that Mr. Whitcomb utilized the word more from his hesitan cy to answer questions in a process to which he was unaccustomed. In reversing the judgment of the trial co u rt , the court of appeal found Mr. Whitcomb "clearly in dicated that he would give more weight to the testimony of a
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p o lice officer than a lay witness." Kang , 01-1262, p. 12 (La. App. 5 Cir 10/ 29/ 02), 831 So.2d 409, 415. Further, the co urt of appeal found that Mr. Whitcomb never unequivocally indicated he could disregard his init ial b ias toward police officers. Id . These conclusions are not s upported by the record and demonstrate the court of appeal's failure to give proper deference to the trial court's fin d in g s . Mr.

Whitcomb's responses during voir dire should be viewed as a whole, not on a piecemeal basis. Lee, 93-2810 at p. 9, 637 So.2d at 108. Though some of Mr.

W h it co mb's remarks or references could be viewed as questionable standing alone and out of cont ext , when the voir dire is properly reviewed as a whole, there is no ev id en ce of Mr. Whitcomb's partiality. The record supports the trial court's

conclusion that Mr. Whit comb did not state he would give an officer's testimony mo re weight simply because he was employed as a police officer. The co u rt o f appeal erred in concluding that Mr. Whitcomb's voir dire testimo n y clearly indicates his predisposition towards t h e testimony of a police officer than to that of a lay wit n es s. Moreover, it is apparent from this conclusion that the court of ap p eal incorrectly failed the give the trial court's conclusions any degree of deference. Properly reviewing the voir dire record as a wh o le, we find no facts from which we may reasonably imply Mr. Whitcomb's bias, prejudice o r in ability to render a judgment according to law. In sum, the court of app eal s h o u ld not have disturbed the trial court's proper refusal to strike Mr. Whitco mb fo r cau s e. The defendant's assignment of error is without merit. Therefore, we reverse the court of appeal's judgment to the contrary and remand this cas e t o the court of appeal to consider the defendant's remaining assignment of error. DECREE
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For t h e reasons assigned, the judgment of court of appeal is reversed and the case is remanded to the court of ap p eal for it to consider defendant's remaining assignment of error. REVERSED and REMANDED.

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10/21/03 SUPREME COURT OF LOUISIANA No. 02-K-2812 STATE OF LOUISIANA VERSUS FRANK W. KANG ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIFTH CIRCUIT, PARISH OF JEFFERSON CALOGERO, Chief Justice DISSENTS: I agree with the decision of the Fifth Circuit Court of Appeal reversing the defendant's conviction and remanding the case to the district court fo r n ew trial. The court of appeal made a studied and correct application of the law as applied to the voir dire examination in this cas e, an d , in reversing the conviction, did what it probably perceived as an unpleasant duty

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