State v. Allen

126 So. 3d 675, 2012 La.App. 4 Cir. 1757, 2013 WL 5568731, 2013 La. App. LEXIS 2080
Louisiana Court of Appeal·Decided October 9, 2013·No. No. 2012-KA-1757·Published·Cited by 5 cases

Opinion

DANIEL L. DYSART, Judge.

| .STATEMENT OF THE CASE:

Defendant, Gerrod Allen, was charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967(B)(4)(b).1 A twelve-person jury found Defendant guilty as charged. Defendant was subsequently sentenced to nineteen years at hard labor with the Department of Corrections, to run concurrently with any other sentence, with credit for time served. The State filed a multiple bill, charging Defendant as a multiple offender for having a prior conviction for possession of marijuana, second offense. Defendant pled guilty to being a multiple offender, and Defendant was resentenced to nineteen years in the Department of Corrections with credit for time served.

This appeal followed. Also, pursuant to Defendant’s pm se request, this Court sent him the record to allow him to file a brief; however, he failed to do so.

DISCUSSION:

The sole assignment of error by Defendant is that the prosecutor’s improper comments and arguments in his closing argument influenced the jury and contributed to the verdict and deprived Defendant of a fair trial. Specifically, | ^Defendant argues that the prosecutor personally attacked Defendant’s counsel, vouched for the State’s witnesses, and attempted to shift the burden of proof to the defense. Defendant contends that this Court should vacate his conviction and sentence and remand the case for a new trial.

“The general rule concerning the scope of closing arguments is that they are confined to ‘evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.’ ” State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036 (quoting La.Code Crim. Proc. art. 774).

This Court recently recognized the well-settled rule that prosecutors are allowed wide latitude with regard to strategy and tactics used in closing argument:2

[678] Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. See, e.g. State v. Martin, 539 So.2d 1235, 1240 (La.1989); State v. Copeland, 530 So.2d 526, 545 (La.1988). Even assuming that remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that the remark influenced the jury and contributed to the verdict. Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence. State v. Kyles, 513 So.2d 265, 275-76 (La.1987).

State v. Smith, 11-0091, p. 28 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 694-95, reh’g denied (8/16/12), writ denied, 12-2069 (La.3/15/13), 109 So.3d 375 (emphasis added).

Furthermore, “even when prosecutors have exceeded that latitude, courts have often criticized the improper arguments without finding that they constituted reversible error.” Id. (citing State v. Byrne, 483 So.2d 564, 575 (La.1986)). Likewise, “even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” State v. Casey, 99-0023, p. 17, 775 So.2d at 1036 (citing State v. Martin, 93-0285, p. 17 (La.10/17/94), 645 So.2d 190, 200; State v. Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d 1229, 1234 (La.1982)).

Defendant concedes that in the closing argument for the defense, defense counsel argued that there were discrepancies in the accounts provided by the three police officers who testified at trial. Defense counsel also remarked that the State only called three out of the fifteen officers who participated in the operation.3 |4Pefense counsel also argued that there were mistakes in the police report, that the video recording of the transactions had no audio, and that the State did not produce the [679] twenty-dollar bill in NOPD funds that was recovered on Defendant’s person.

Defendant asserts that the State in rebuttal argued that defense counsel accused the State of hiding something, and made personal attacks on defense counsel. Specifically, Defendant cites the following remarks made by the prosecutor:

We picked you all as jurors because we trust you and I trust my case. I have been up front and honest with you from the beginning and there is not a single thing I want to hide from any of you.
I would submit to you that someone— there are two individuals ladies and gentlemen who all day have been trying to ... trick you and who have been lying to you and they are sitting at that table. [Counsel for Defendant]:
Objection, personal.
THE COURT:
Sustained.
No personal attacks, sir.

Defendant also cites the following remarks made by the prosecutor:

You know another part of this case that truly bothered me is the comment made by defense counsel. They said, oh, the State should be able to bring you that money. The State should be 1 sable to bring you the cash. We are going to be able to show you that cash. It was just a ploy to mislead you.
And then, I want to call my investigator, Mr. Fitzgerald to simply explain why we can’t provide those dollar bills. And what do I get? Objection! And I’m hiding something? I’m trying to mislead you all? That’s who is hiding something and the reason they are hiding something ladies and gentlemen is because they are sitting next to a guilty man.
[Counsel for Defendant]:
We have no burden!
THE COURT:
They know that, ma’am. You don’t have to tell us that.
[Counsel for the State]:
I didn’t say they had a burden.
Once again, I have the burden in this case. Me and Mr. McAuliffe have the burden in this case to prove the case beyond a reasonable doubt in case there is any confusion about that.

Additionally, Defendant asserts that the prosecutor made the following personal attack on counsel for Defendant:

I am not here to waste peoples [sic] time. I’m here to get a drug dealer off the streets and that is what they are sitting next to. And that’s what they know he is.
[Counsel for Defendant]:
Objection!
THE COURT:
Sustained. Let’s wrap it up, sir.

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State v. Allen, 126 So. 3d 675, 2012 La.App. 4 Cir. 1757, 2013 WL 5568731, 2013 La. App. LEXIS 2080 (La. Ct. App. 2013).

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