State of Louisiana v. Terry Young

• Court: Louisiana Court of Appeal
• Decided: November 2, 2011
• Docket: KA-0011-0484
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-484

STATE OF LOUISIANA

VERSUS

TERRY YOUNG

**********

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 156,000 HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

David Lafargue Assistant District Attorney P. O. Box 277 Marksville, LA 71351 (318) 253-7521 Counsel for Appellee: State of Louisiana Charles A. Riddle, III District Attorney P. O. Box 1200 Marksville, LA 71351 (318) 253-6587 Counsel for Appellee: State of Louisiana

Donald R. Dobbins Attorney at Law 327 North Boulevard, Suite 103 Baton Rouge, LA 70801 (225) 387-6010 Counsel for Defendant/Appellant: Terry Young DECUIR, Judge.

After a jury trial, Defendant, Terry Young, was convicted of illegal use of a

weapon or dangerous instrumentality, a violation of La.R.S. 14:94. Defendant

alleges the trial court erred by denying his request for a mistrial after the testimony

of one of the witnesses.

FACTS

The victim, Francis Keller, was previously married to Abigail Lastrapes

Keller, and they had three children together. The Bunkie Police Department had

calls on a weekly, if not daily, basis involving Defendant, Ms. Keller, and Mr.

Keller. Defendant’s charge arose out of an incident on March 9, 2009.

Mr. Keller alleged Defendant, on that date, drove by his business while he

was placing a trash can at the road and fired a revolver at him. When asked at trial

what he was doing that afternoon, Mr. Keller responded with testimony lasting

more than two pages in the transcript that included a reference to Defendant as ―a

convicted drug dealer.‖ Defendant did not object immediately but waited until the

State offered its next exhibit to ask the trial court to excuse the jury so that he

could make a motion for mistrial.

As grounds for the mistrial, Defendant argued Mr. Keller had ―basically

forced [him] to take the stand to defend himself‖ by ―[c]alling him a convicted

drug dealer in front of the jury‖ and had thus taken away Defendant’s

constitutional right to remain silent. He contended the reference to a crime other

than that for which he was on trial provided the basis for the mistrial. The trial

judge found the reference to a prior felony conviction was ―totally improper.‖ The

State offered a stipulation to be read to the jury that the testimony was not to be

accepted as a correct statement, but Defendant would not agree to it. The trial

judge then ruled he would admonish the jury and instruct Mr. Keller not to make further ―unsolicited remarks concerning the character of [Defendant],‖ with the

warning he would declare a mistrial if Mr. Keller did not heed. He denied the

motion for mistrial, and Defendant noted his objection.

Defendant took the stand and testified about the events of the day of the

incident. During cross-examination, the State asked Defendant if he had ever been

convicted of a crime. Defendant responded he was convicted of possession of

cocaine with intent to distribute in 1989. In 1992, a cocaine rock belonging to

someone else was found in Defendant’s car, and he ―had to take to the charge‖

because the vehicle was his. Defendant testified he has been a ―[p]roductive

citizen . . . even so productive the Judge who convicted [him], let [him] open up

his million dollar business at Piggly Wiggly,‖ and he ran the Judge’s store for

―almost three years.‖

Defendant was found guilty, and he received the minimum sentence of five

years.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find one

error patent.

Although the minutes from sentencing indicate the trial court advised the

Defendant of the prescriptive period for filing post-conviction relief as required by

La.Code Crim.P. art. 930.8, the transcript of the sentencing hearing does not. Thus,

the trial court is directed to inform the Defendant of the provisions of Article 930.8

by sending appropriate written notice to the Defendant within ten days of the

rendition of this opinion and to file written proof in the record that the Defendant

received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265,

writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

2 ASSIGNMENT OF ERRORS NO. 1 AND NO. 2

Defendant contends the trial court erred by failing to declare a mistrial after

Mr. Keller’s inadmissible remarks. He argues this amounted to prejudicial conduct

inside the courtroom that made a fair trial impossible.

―[A] mistrial shall be ordered . . . when prejudicial conduct in or outside the

courtroom makes it impossible for the defendant to obtain a fair trial . . . .‖

La.Code Crim.P. art. 775. When a witness makes a remark that is ―irrelevant or

immaterial and of such a nature that it might create prejudice against the defendant,

or the state, in the mind of the jury,‖ the trial court may ―admonish the jury to

disregard a remark or comment.‖ La.Code Crim.P. art. 771. The trial court’s

denial of the motion may not be overturned absent an abuse of discretion. State v.

Winston, 97-1133 (La.App. 3 Cir. 12/9/98), 723 So.2d 506, writ denied, 99-205

(La. 5/28/99), 743 So.2d 659 (citing State v. Ortiz, 96-1609 (La. 10/21/97), 701

So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352 (1998)).

In Winston, a witness, in an unsolicited comment, referred to the defendant

as a ―con man all up and down Louisiana.‖ Id. at 512. The trial judge admonished

the jury to disregard the remark. Likewise, in State v. Harris, 625 So.2d 228

(La.App. 2 Cir. 1993), a deputy testified another deputy knew the defendant as a

drug dealer. The second circuit found the jury admonition to disregard evidence

not coming from the witness’s personal knowledge was sufficient.

Here, the trial judge told the jury it was ―not to consider and accept that

testimony as being true.‖ He instructed them to ―entirely disregard any testimony

by Mr. Keller stating that he did not want his children around [Defendant] because

he was a convicted drug dealer.‖ In light of the jurisprudence, the trial court did

not abuse its discretion in denying the mistrial and admonishing the jury in

3 accordance with La.Code Crim.P. art. 771. Further, Mr. Keller’s remark did not

create such a prejudicial environment that Defendant could not receive a fair trial.

DECREE

For the foregoing reasons, the trial court did not err in denying Defendant’s

motion for mistrial. Defendant’s conviction and sentence are affirmed.

The case is remanded and the trial court is directed to inform the Defendant

of the provisions of Article 930.8 by sending appropriate written notice to the

Defendant within ten days of the rendition of this opinion and to file written proof

in the record that the Defendant received the notice.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.