State of Louisiana Versus Jacorey Davis and Malik Rodrigue

STATE OF LOUISIANA NO. 23-K-159
VERSUS FIFTH CIRCUIT
JACOREY DAVIS AND MALIK RODRIGUE COURT OF APPEAL
STATE OF LOUISIANA
March 30, 2023
Linda Wiseman
First Deputy Clerk
IN RE JACOREY DAVIS AND MALIK RODRIGUE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS,
DIVISION "G", NUMBER 22-209
Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Cornelius E. Regan
WRIT GRANTED
Relators, Jacorey Davis and Malik Rodrigue, seek review of the trial court’s
denial of their motion for mistrial. For the following reasons, we grant this writ
application.
Jury selection in this matter commenced on March 27, 2023. On March 28,
2023, Mr. Davis filed a motion to abide by La. C.Cr.P. art. 788 during jury
selection, and a motion for mistrial. On the morning of March 29, 2023, while jury
selection was still in progress, the trial court granted the motion to abide by La.
C.Cr.P. art. 788. Mr. Rodrigue joined in the motion for mistrial at the hearing, but
the trial court denied the motion. A short time later, the State informed the trial
court that it joined in relators’ motion for mistrial. The trial court again denied the
motion.
In the motion for mistrial, relators argued that the trial court had not been
following the provisions of La. C.Cr.P. art. 788 during jury selection by failing to
require that each prospective juror be tendered first to the state. La. C.Cr.P. art.
788 provides, in pertinent part:
A. After the examination provided by Article 786, a prospective
juror may be tendered first to the state, which shall accept or
challenge him. If the state accepts the prospective juror, he
shall be tendered to the defendant, who shall accept or
challenge him. When a prospective juror is accepted by the
state and the defendant, he shall be sworn immediately as a
juror. This Article is subject to the provisions of Articles 795
and 796.
Comment (a) of La. C.Cr.P. art. 788 notes that this procedure for jury
selection has considerable value to a defendant. It states that because the state is
forced to choose first, the defendant may be saved the loss of a peremptory
challenge. See also State v. Plaisance, 00-1858 (La. App. 4 Cir. 3/6/02), 811
So.2d 1172, 1195, writ denied, 02-1395 (La. 11/27/02), 831 So.2d 270, cert.
denied, 538 U.S. 1038, 123 S.Ct. 2084, 155 L.Ed.2d 1071, in which the appellate
court found that the trial court erred in failing to tender all prospective jurors to the
state first, as provided by La. C.Cr.P. art. 788(A).
La. C.Cr.P. art. 775 provides that “[a] mistrial shall be ordered, and in a jury
case the jury dismissed, when the state and the defendant jointly move for a
mistrial.” Two of the three defendants in this matter moved for a mistrial and the
State subsequently joined in their motion. Accordingly, because there was a joint
motion, pursuant to La. C.Cr.P. art. 775, we find the trial court erred by denying
the motion for mistrial. Accordingly, we grant this writ application, grant relators’
motion for mistrial, and remand for further proceedings. Relators’ request for a
stay is denied as moot.
Gretna, Louisiana, this 30th day of March, 2023.
CER
MEJ
SJW
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 03/30/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
23-K-159
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
MAILED
Price Quenin (Relator) Joseph L. Perez (Relator) Paul C. Fleming, Jr. (Relator)
Attorney at Law Attorney at Law Attorney at Law
848 2nd Street 848 Second Street 848 Second Street
Third Floor P. O. Box 468 Third Floor
Gretna, LA 70053 Gretna, LA 70054 Gretna, LA 70053
Christen DeNicholas (Relator)
Attorney at Law
Jefferson Parish Public Defender
848 Second Street
Third Floor
Gretna, LA 70053
SENDER: COMPLETE THIS SECTION COMPLETI: THIS Sf:CTION ON Dl:LJVH?Y
• Complete Items 1, 2, and 3.
• Print your name and address on the reverse
so that we can retum the card to you.
• Attach this card to the back of the mallplece,
or on the front If space pennlts.
1. Article Addressed to:
Price Quenin
Attorney at Law
848 Second Street
Third Floor
Gretna, LA 70053
23-K-159 03-30-23
3. Servioe "fype 0 Priority Mall ecpes.e
1111111111111111111111111111111111111111111111
Cl Adult Signature
Cl Jdlilt. $lgl18lur9 Reatcted OelMly
llifCertflled Malle
=.lsterad
Cl Registered Mall""
Mall Restricted
9590 9402 2434 6249 3645 95 Cl Celti1lecl Mall Rlllltrlc'9d Oellvely flell.m ~ fgf
Cl Collect on DelNely t.ierotlandl8e
-2.-4nv.--~..-111-11-mn..r-m-,..-,.,-,,_-,.,...,,..,--,,_,,-,r.11-btlva/I-------( Cl Collect on DelNely Res!rk;led Oellvely D Slgnatu'a Conflrmallon""
0 Slgnatln Conflrmatlon
?a11:i 2070 aoaa 0954 b 7 5 5 Res1rlcted Dellwiy Rastrlcl8cl OelNely
PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Retum Receipt .J