STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 KA 0476
STATE OF LOUISIANA
VERSUS
JASON BRINGIER
DATE OF JUDGMENT. DEC 3 o 2021
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 7140649, SECTION 8, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE ANTHONY J. MARABELLA, JR., JUDGE
Hillar C. Moore, III Counsel for Appellee
District Attorney State of Louisiana
April Leon
Jerri Ann Lee
Assistant District Attorneys
Baton Rouge, Louisiana
Mary Constance Hanes Counsel for Defendant -Appellant
New Orleans, Louisiana Jason Bringier
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: CONVICTION AND SENTENCE AFFIRMED.
CHUTZ, I
The defendant, Jason Bringier, was charged by grand jury indictment with
second degree murder, a violation of La. R.S. 14: 30. 1, and pled not guilty.
Following a jury trial, he was found guilty as charged by unanimous verdict. He
was sentenced to life imprisonment at hard labor without benefit of probation,
parole, or suspension of sentence.' He now appeals raising two assignments of
error. For the following reasons, we affirm the conviction and sentence.
FACTS
On March 24, 2014, at approximately 1: 00 a. m., the victim, Lucinda White,
was fatally shot in the head at her home in Baton Rouge. At the time of her death,
she was living with the defendant, who was the father of two of her three children.
When the police arrived at the scene of the shooting, the victim' s body was lying
sideways on the bed in the children' s room, with her head closest to the closet and
her legs hanging off the bed. Most of the blood splatter was on the lower portion
of the right closet door. A . 40 caliber semiautomatic handgun was found at the
head of the bed, with its hammer cocked back. The magazine contained ten
rounds, but no live round was chambered in the weapon. A bullet projectile was
found " sort of bound up" in a white sweater located near the foot of the bed. The
sweater appeared to have two bullet holes, powder burns, and contained skull
fragments. The exterior of the bedroom door " had a hole like a [ fist] ... had been
forced into it some kind of way." The damage to the bedroom door and frame was
consistent with the door having been kicked in or forced in from the outside.
I
The commitment order reflects a sentence of 999 years. The sentencing minutes and
sentencing transcript, however, reflect a sentence of life imprisonment at hard labor without
benefit of probation, parole, or suspension of sentence. The sentencing transcript prevails in the
event of a discrepancy in the record concerning the sentence. See State v. Lynch, 441 So. 2d
732, 734 ( La. 1983).
2
Several hours after the shooting, at approximately 4: 32 a.m., both of the
defendant' s hands and both sides of his face tested positive for gunpowder
particles. A gunshot residue ( GSR) test of the victim' s right hand was negative.
Dr. Beau Clark, East Baton Rouge Parish Coroner, testified at trial that a
gunshot wound to the head was the cause of the victim' s death, and the manner of
death was homicide. The victim was killed by a bullet traveling in a downward
trajectory, entering the right side of her head and exiting the left side of her head,
while moving from back to front. According to Dr. Clark, the muzzle of the gun
that killed the victim was " either touching the [ victim' s] skin or just barely
touching the [ victim' s] skin" at the time she was shot. An examination of the
victim' s body revealed she had suffered contusions of the head, torso, and the
extremities " of various ages[,]" as well as an abrasion to her right lower leg. Dr.
Clark opined that the bruises to the victim' s wrists and upper arm varied from
several days old to approximately a week old.
Dannette Daigle Story, a long-time friend and roommate of Dawn Van ( the
victim' s mother), was a witness at trial. Story last saw the victim alive on March
23, 2014, sometime near midnight when the victim visited her mother and Story to
deliver a pack of cigarettes. The victim was wearing the white sweater found in
the children' s room after her death. She was frustrated because she needed money
to pay bills, and she and the defendant had not paid their rent.
Story also testified concerning an incident when the victim called her to
come and pick her up. Story went to the residence the victim shared with the
defendant, but no one would open the door. Looking through a window, Story saw
the defendant holding a knife to the victim' s neck.
The defendant provided different accounts of how the victim was shot.
Initially, he claimed the victim returned home with her friend, Jessica Stephens, on
3
March 23, 2014, between 9: 00 p.m. and 10: 00 p.m. In this account, the defendant
claimed he was in the master bedroom and the victim was in the children' s room
getting a basket of clothes at the time of the shooting. According to the defendant,
the victim did not know where the clothes were, and he told her they were in the
top of the closet. He stated he then heard a gunshot. The defendant claimed the
victim had a gun in her hand when she went into the children' s room because she
was interested in " learning to shoot[,]" and he had recommended that she ( or they)
call her stepfather, Gary Fontenot, and ask to shoot on his property The defendant
further claimed a phone call was made to Fontenot at approximately 12: 30 a.m.
According to Fontenot, however, the phone call was made at 10: 30 p.m.
Additionally, the defendant claimed he and the victim rarely argued and never had
physical confrontations. Lastly, he claimed the door to the children' s room had
been damaged three months prior to the incident when one of the children hit it
with a basketball.
Subsequently, after being confronted with the evidence concerning the
victim' s sweater, the results of the GSR tests, and the autopsy results, the
defendant admitted he shot the victim, but claimed it was accidental. According to
the defendant, he had a gun in his hand, the victim fell back as she was getting a
basket out of the closet, and he accidentally shot her.
DISCHARGE OF JUROR
In his first assignment of error, the defendant contends his rights were
violated when, over defense objection, the trial court removed a juror who had
been selected and sworn —and then failed to re -empanel her after offering to do so
based on the State' s speculation that the juror might " at some point" blame or be
prejudiced against the State because of the trial judge' s previous threat to hold her
in contempt for tardiness.
M
On September 24, 2019, Mahlinda Evans was called in panel 2 of the
prospective jurors. Thereafter, she was selected as preliminary juror number 10
and sworn to serve.
On September 25, 2019, Evans could not be found, and her telephone was
turned off. The court asked counsel for the defendant and counsel for the State
whether there was any objection to striking Evans for cause for nonappearance and
continuing with jury selection. The defense stated it wanted her on the jury. The
State noted Evans' nonappearance " may shed some light on her interest in the
case." The State conceded it " may just be a human error or honest mistake," but
pointed out " in the interest of justice, we cannot proceed with 30 minute delays,
especially when the trial gets going." The court ruled:
All right. The defense objection is preserved for the record and
noted but it is overruled.In the interest ofjudicial economy, since we
do not have a jury, and since it does not prejudice the defense in any
way, no preempts were used, the objection is overruled. We' re going
to strike Ms. Evans as a juror, so we will proceed under the
assumption that we now have ten preliminarily selected.'
During the voir dire of panel 3 of the prospective jurors, Evans entered the
courtroom. She explained she had failed to appear earlier because she went to her
child' s school for a parent conference. The court asked if Evans' telephone was
working, and she answered affirmatively. The court stated when it had attempted
to call Evans, it had received " a disconnect notice." Evans claimed her phone had
been on and perhaps the wrong number had been dialed.
Evans exited the courtroom, and the court advised counsel it had made a
decision to strike her under the " impression that she was not going to be found and
could not be found." The court offered to put Evans back on the jury "unless there
2
At the end of voir dire on September 24, 2019, eleven preliminary jurors had been
selected.
5
was] an objection."
The court asked counsel to write down whether they objected
to Evans being placed back on the jury.
The defense objected to Evans' exclusion, arguing that other jurors had been
late and the court " may have prematurely offered [ Evans] up for ... exclusion."
The defense noted Evans did eventually appear for service and had a reasonable
explanation for being late. The defense also stated that Evans had not indicated
that she would consistently be late in the future. The defense asked the court to
reconsider having Evans back on the jury (i. e., defense counsel voted to have Evan
placed back on the jury).
The State noted it had " objected to [ Evans] the first go round" and the fact
she had to address the court " not knowing who that came from" might prejudice
the State if she was allowed to return to the jury.' The State argued " there is an
appearance that [ Evans] may at some point be prejudicial to the State and that is
the only reason why I object to her being re -impaneled on the jury." When the
court inquired whether the State wished to exercise a peremptory challenge against
Evans, the State answered negatively. Thereafter, the court overruled the defense
objection to Evans' exclusion from the jury.
Voir dire of prospective jurors is specifically designed to test their
qualifications and competency. An accused has " a right to full voir dire
examination" for this purpose. La. Const. art. I, § 17. If not qualified, the
prospective juror can be challenged for cause before he is sworn. La. Code Crim.
P. arts. 795 and 797. This procedure is designed to protect the defendant and the
State from unqualified and incompetent jurors and to avoid an aborted trial if an
incompetent juror should serve. State v. Baxter, 357 So. 2d 271, 274 ( La. 1978).
3
The State argued it would be prejudiced if Evans " on the jury. Evans,
remain[ ed]"
however, had already been struck from the jury at this point, so the issue was whether or not she
would be permitted to return to the jury.
6
A trial court is afforded broad discretion in determining whether to strike a
juror for cause because of the trial court' s ability to form a first -person impression
of prospective jurors during voir dire. The trial court " has the benefit of seeing the
facial expressions and hearing the vocal intonations of the members of the jury
venire" as they respond to questioning, whereas the reviewing court reviews the
matter only on a transcript in a record. Therefore, the trial court' s rulings will not
be disturbed unless a review of the voir dire as a whole indicates an abuse of that
discretion. State v. Diggs, 2019- 0956 ( La. App. 1 st Cir. 12/ 27/ 18), 294 So. 3d 487,
491- 92, writ denied, 2020- 00181 ( La. 7/ 24/ 20), 299 So. 3d 69.
Further, the Louisiana Criminal Code provides the trial court with wide
latitude to determine the qualifications of prospective jurors and the right to
disqualify them independently of challenges by counsel. See La. Code Crim. P.
art. 787 ("[ t] he court may disqualify a prospective petit juror from service in a
particular case when for any reason doubt exists as to the competency of the
prospective juror to serve in the case.").
Louisiana Code of Criminal Procedure article 787 should be read in pari
materia with La. Code Crim. P. arts. 797 and 798, which set forth the grounds
upon which a juror may be challenged for cause. The excusal of a prospective
juror by the trial court, even ex proprio motu, is within its authority under La. Code
Crim. P. art. 787. Substantial deference is to be accorded a trial court' s
determination that a particular juror is unfit for service; in reviewing such
determinations, the standard is whether the trial court' s finding was " fairly
supported by the record." Additionally, absent a clear showing of abuse of
discretion, the trial court' s ruling as to the qualifications of a juror to serve should
not be disturbed on appeal. State v. Letulier, 97- 1360 ( La. 7/ 8/ 98), 750 So. 2d
784, 790.
7
Louisiana Code of Criminal Procedure article 796 provides:
If it is discovered after a juror has been accepted and sworn,
that he is incompetent to serve, the court may, at any time before the
first witness is sworn, order the juror removed and the panel
completed in the ordinary course.
State v. Williams, 500 So.2d 811, 813 ( La. App. 1st Cir. 1986), involved
review of the substitution of an alternate juror for a juror who arrived late, but prior
to the beginning of trial. This court held:
Here, the juror was absent, as she was late for court. It is
immaterial that she subsequently arrived for duty. At the time the trial
judge was called upon to make a decision whether to replace her with
the alternate, her whereabouts and reason for her absence were
unknown. As in [ State v. Clay, 441 So. 2d 1227 ( La. App. 1st Cir.
1983), writ denied, 446 So.2d 1213 ( La. 1984)], the discharged juror
was unavailable for questioning as to her inability or incompetency to
serve.
Consistent with Clay, 441 So.2d at 1230, and for the reasons
stated above, we determine that the trial judge herein reacted in a
prudent manner in replacing the juror. A court has the duty to require
that criminal proceedings shall be conducted in an orderly and
expeditious manner. A juror' s failure to attend court interferes with
the orderly administration ofjustice. See La. C. Cr.P. arts. 17, 20, 21.
A defendant' s right to have the original twelve jurors selected
decide his fate is not absolute. Ample cause was present to discharge
the juror. Clay, 441 So. 2d at 1231.
Williams, 500 So. 2d at 814.
Hamilton v. Winder, 2004- 2644 ( La. App. 1st Cir. 2/ 10/ 06), 924 So. 2d
2671 269- 70, reversed, 2006- 0994 ( La. 6/ 16/ 06), 931 So. 2d 358 ( per curiam),
involved review of a trial court ruling disqualifying a juror and striking him from
the jury when he was not in court ten minutes after court began on the day of trial.
The trial court noted the juror had been late after every break and had already been
admonished to be on time. Id. This court examined State v. Cass, 356 So. 2d 396
La. 1977) and Clay, 441 So.2d 1227, in deciding the issue.
We noted that in Cass, the trial court summarily dismissed a juror in open
court after observing the juror apparently sleeping for two to four minutes.
8
Thereafter, the Louisiana Supreme Court reversed that decision, finding no legal
cause to dismiss the juror and holding the trial court erred in failing to allow the
parties to question the juror, on the record, as to his inability to perform his duties.
Cass, 356 So. 2d at 397- 98. We compared Clay, where the juror had telephoned
the trial court on the morning of the second day of trial stating that she was unable
to attend trial because of some accident or a problem in her family that required her
presence. In Clay, 441 So. 2d at 1231, this court distinguished Cass on the basis of
the " discharged juror' s unavailability for questioning as to her inability or
incompetency to serve."
In Hamilton, 924 So. 2d 272, we concluded, " the establishment of the
unavailability of a juror requires either an attempt by the trial court to contact the
absent juror to determine his or her unavailability or actual contact or information
regarding the juror' s unavailability." We found the trial court had neither
attempted to contact the discharged juror to determine his availability to serve nor
was there any information that he was unavailable to serve. Id. Accordingly, we
vacated the judgment of the trial court and remanded for a new trial. Id.
The Louisiana Supreme Court reversed the decision of this court in
Hamilton, finding this court had " failed to appreciate the district court' s
discretionary power under La. Code Civ. Proc. art. 1631( A) to control the
proceedings." Hamilton, 931 So.2d at 358.
In the criminal context, La. Code Crim. P. art. 17, in pertinent part, provides:
A court possesses inherently all powers necessary for the
exercise of its jurisdiction and the enforcement of its lawful orders,
including authority to issue such writs and orders as may be necessary
or proper in aid of its jurisdiction. It has the duty to require that
criminal proceedings shall be conducted with dignity and in an orderly
and expeditious manner and to so control the proceedings that justice
is done.
9
See State v. Hardman, 2019- 151 ( La. App. 3d Cir. 10/ 9/ 19), 280 So. 3d
787, 792 (" Given the virtually identical language of La. Code Civ. P. art. 1631( A)
and La. Code Crim. P. art. 17, we find that the trial court' s discretionary authority
to ensure criminal proceedings are conducted in ` an orderly and expeditious
manner' includes the authority to remove a juror for repeated tardiness.")
In the instant case, the defendant attempts to distinguish Williams on the
basis that " Malinda Evans, was precluded from serving as a juror for a reason
unrelated to her tardiness. The trial court was willing to re -empanel her after
hearing her excuse and apology, which means the trial court no longer believed she
should be disqualified from serving due to one incident of tardiness."
The issue is whether the trial court' s determination that Evans was unfit for
service is " fairly supported by the record." See Letulier, 750 So. 2d at 790. The
defendant fails to show a clear abuse of discretion in that determination. The
record indicates on the second day of trial, Evans could not be found or contacted
by telephone. When Evans eventually came to court, she revealed she had
attended a parent conference rather than coming to court to serve on the jury. She
apparently had made no attempt to contact the court to advise she would be tardy.
Further, she claimed her telephone had been working even though when the court
had attempted to call her, it had received " a disconnect notice." While the court
offered to put Evans back on the jury, the offer was made contingent on neither the
defense nor the State objecting, and the State did object. The defendant' s claim
that the trial court no longer believed Evans should be disqualified is pure
speculation. The trial court acted within its discretion and its " duty to require that
the] criminal proceedings shall be conducted with dignity and in an orderly and
expeditious manner and to so control the proceedings that justice is done." La.
10
Code Crim. P. art. 17; see Hamilton, 931 So. 2d at 358; Williams, 500 So. 2d at
M;
This assignment of error is without merit.
OPINION TESTIMONY BY LAY WITNESS
In his second assignment of error, the defendant contends the trial court
erred in overruling the defense' s objection to a detective, who was not qualified as
an expert, giving opinion testimony that blood splatter evidence was inconsistent
with the defendant' s explanation of how the shooting occurred.
Louisiana Code of Evidence article 701 provides:
If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are:
1) Rationally based on the perception of the witness; and
2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.
The general rule is that a lay witness is permitted to draw reasonable
inferences from his or her personal observations. State v. Ulfers, 2007- 0832 ( La.
App. 1st Cir. 2/ 8/ 08), 2008 WL 441488, * 14, writ denied, 2008- 1100 ( La.
1/ 16/ 09), 998 So. 2d 90. State v. Short, 368 So. 2d 1078, 1081 ( La. 1979), cert.
denied, 444 U.S. 8849 100 S. Ct. 174, 62 L.Ed.2d 113 ( 1979), held that " the opinion
rule should not be applied so strictly as to exclude first-hand testimony that may be
several inferences removed from raw sense perceptions, yet more helpful to the
jury than mere recitation of such perceptions." Thus, if the testimony constitutes a
natural inference from what was observed, no prohibition against it as the opinion
of a non -expert exists as long as the lay witness states the observed facts as well.
Therefore, the reviewing court must ask two pertinent questions to determine
whether the trial court properly allowed such testimony: ( 1) was the testimony
11
speculative opinion evidence or simply a recitation of or inferences from fact based
upon the witness' observations; and ( 2) if erroneously admitted, was the testimony
so prejudicial to the defense as to constitute reversible error. State v. Casey, 99-
0023 ( La. 1/ 26/ 00), 775 So. 2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S. Ct.
104, 148 L.Ed. 2d 62 ( 2000).
East Baton Rouge Parish Sheriff' s Office Detective Rob Chambers testified
he was the lead detective in the investigation of the victim' s death. The defense
asked to approach the bench after the following exchange:
STATE]: And wrapping up, Detective Chambers, you testified that
you arrested [ the defendant] because his statement, the second one,
the inconsistent one that was inconsistent with the prior statements,
you stated and your testimony that it still didn' t line up with the
evidence; how so?
CHAMBERS]: Because the -- the blood splatter on the bed is
going from [ left] to right --
At the bench, the defense objected that Detective Chambers' testimony was
inappropriate because he was not a blood splatter expert. The State responded:
My question was to ask about how the evidence -- physical
evidence at the crime is inconsistent with the second statement that
was inconsistent previously.
I' m not seeking to elicit any responses on expert testimony, but
what I am seeking to elicit where the subject of the testimony is such
that a person of ordinary experience may make a natural [ inference]
about certain facts, a lay witness may testify as to such [ inferences].
Additionally, where the subject of the testimony is such that any
person of experience may make an inference from assertive acts or the
witness may testify as to such inference as long as he provides an
explanation of the facts.
The trial court ruled, "[ t] he objection is overruled insofar as [ Detective
Chambers] can just lay the witness opinions as to his observations where they were
and why he felt they were -- anybody can testify to that. But it' s a close call." The
court noted, " I think the location of blood splatters and the fact that they were at a
12
different place [ than] where a layperson might have expected them to be, if he
testifies to that opinion then I' m going to let him give it."
Thereafter, over defense objection, Detective Chambers testified the
defendant' s statement that "[ the victim] was falling back, [ the defendant] caught
her, they were standing up, and [ the defendant] shot her in the head" was
inconsistent with the physical evidence because if the defendant' s account was
accurate, "[
t]he blood splatter would have been higher up on the closet." The
following colloquy then occurred:
STATE]: Where was the blood -- blood splatter located?
CHAMBERS]: It was on the bed, across the bed going left to right,
and --
STATE]: Going left to right, if you were in what position?
CHAMBERS]: If you' re facing.
STATE] : Okay.
CHAMBERS]: Into -- into low on the closet level with the bed, --
STATE]: And let me --
CHAMBERS]: -- which -- which indicates that the person' s head
was on the bed shot from right to left in the -- shooting across the bed
and to -- to the closet.
Detective Chambers also indicated the blood splatter was " leveled with the
bed[,]" rather than " leveled with the top of the closet[.]" On cross- examination,
however, he conceded " there is some [ blood splatter] up high."
The trial court properly allowed Detective Chambers' testimony. Rather
than being speculative opinion evidence, the testimony was a recitation of facts
based upon Detective Chambers' personal observation of blood splatter at the
scene. Detective Chambers made the reasonable inference that if the victim had
13
been standing up when the defendant shot her, as the defendant claimed, the blood
splatter would have been higher up on the closet doors rather than on the bed.
Moreover, any error in the admission of Detective Chambers' testimony was
harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921. The guilty
verdict rendered in this case was surely unattributable to the challenged testimony,
which was only one of many pieces of evidence that cast doubt on the defendant' s
theory that he accidentally shot the victim in the head while she was falling back.
See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d
182 ( 1993); State v. LeBlanc, 2005- 0885 ( La. App. 1st Cir. 2/ 10/ 06), 928 So. 2d
5991 604 (" lay opinion testimony on the relevant aspects of the physical evidence
was merely cumulative of the eyewitness testimony, and any error in admitting
the witness'] opinion as to causation ... was clearly harmless."). Initially, the
GSR evidence established the defendant lied to the police when he claimed the
victim shot herself. Lying raises the inference of a guilty mind and an awareness
of wrongdoing. See State v. Frickey, 2015- 0511 ( La. App. 1st Cir. 9/ 18/ 15), 2015
WL 55163001 * 4, writ denied, 2015- 1966 ( La. 11/ 18/ 16), 210 So. 3d 283. Further,
injuries to the victim' s body indicative of domestic violence, as well as physical
evidence at the scene indicating that the door to the room where the victim was
killed had been recently punched and forced open, supported the State' s theory that
the defendant intentionally shot the victim after forcing his way into the room.
Lastly, the State presented testimony from Story that the defendant had held a
knife to the victim' s neck in a prior incident. While this testimony was
inadmissible as character evidence to prove the defendant acted in conformity with
bad character in the instant incident, the testimony was admissible as proof of
absence of mistake or accident in the instant incident. See La. Code Evid. art.
404( B)( 1).
14
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.
15
STATE OF LOUISIANA STATE OF LOUISIANA
VERSUS COURT OF APPEAL
JASON BRINGIER FIRST CIRCUIT
NO. 2021 KA 0476
HOLDRIDGE, J., concurs.
I respectfully concur with the report. In a criminal jury trial, " when a
prospective juror is accepted by the state and the defendant, he shall be sworn
immediately as a juror." La. C. Cr.P. art. 788. After all parties have completed the
selection of the jurors and all challenges are resolved, " the jurors shall then be
sworn together -to try the case ... ." La. C. Cr.P. art. 790. Prior to the final
swearing in of the jurors, in accordance with La. C. Cr.P. art. 790, the state and the
defendant may exercise all peremptory challenges available to each side even as to
jurors who had been previously accepted and sworn. La. C. Cr.P. art. 799. 1.
Similarly, at this stage in the proceeding, the trial judge has great discretion to
remove any juror " for any reason" if doubt exists in the trial judge' s mind as to the
competency of the prospective juror to serve. La. C. Cr.P. art. 787.
In this case, the trial judge did not abuse his great discretion to remove a
prospective juror who did not timely appear in court, did not call to let the trial
court know that she may be late to attend a personal matter, which placed her late
for appearing in court, and was unavailable when the trial court' s staff attempted to
contact her. Clearly, the trial court was reasonable in finding that " doubt existed as
to the juror' s competency to serve." See La. C. Cr.P. art. 787
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 KA 0476
STATE OF LOUISIANA
VERSUS
JASON BRINGIER
GUIDRY, J., dissents and assigns reasons.
GUIDRY, J., dissenting.
I am constrained to dissent in this matter. The discretion afforded the trial
court regarding Evans service on the jury was not properly exercised by the judge,
but instead was delegated to the state and defense. They were allowed to decide
whether to veto the judge' s willingness to put Evans back on the jury in lieu of
exercising a peremptory challenge. The state took advantage of this opportunity
after responding negatively to the trial court questioning whether it wished to
exercise a peremptory challenge. The judge heard Evan' s explanation for her
singular instance of tardiness and stated that his decision to strike her was made
under the impression that she was not going to and could not be found. He then
offered to put Evans back on the jury " unless there [ was] an objection." That
statement indicates that the trial court no longer believed she was incompetent to
serve. This was his decision to make in his role as judge and it was error to abdicate
that role. Therefore, I respectfully dissent from the majority' s opinion in this matter.
1