State v. Banks

503 So. 2d 529
CourtLouisiana Court of Appeal
DecidedMarch 26, 1987
DocketCR86-512
StatusPublished
Cited by5 cases

This text of 503 So. 2d 529 (State v. Banks) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Banks, 503 So. 2d 529 (La. Ct. App. 1987).

Opinion

503 So.2d 529 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
Ronnie K. BANKS, Sr., Defendant-Appellant.

No. CR86-512.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1987.
Rehearing Denied March 4, 1987.
Writ Granted March 26, 1987.

*530 Otha Curtis Nelson, Simmons, Nelson & Dunn, Baton Rouge, for defendant-appellant.

Richard Ieyoub, Dist. Atty., Saundra Isaac, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and KNOLL, JJ.

KNOLL, Judge.

Defendant, Ronnie K. Banks, Sr., an attorney, was convicted of theft over $500, a violation of LSA-R.S. 14:67. The money defendant stole was a settlement for personal injuries sustained by defendant's client, Miss Linda Bellard. He was sentenced to serve 5 years in the custody of *531 the Department of Corrections; the sentence was suspended and defendant was placed on supervised probation for 4 years under the provisions of LSA-C.Cr.P. Art. 895, with the special condition that defendant serve 18 months in the parish jail and make restitution after serving the 18 months jail term, the amount of restitution to be determined by the probation officer.

Defendant appeals his conviction and sentence presenting six (6) assignments of error. We affirm.

Miss Linda Bellard was involved in an automobile accident on March 2, 1982, in Lake Charles wherein she sustained personal injuries as well as damage to her car. She retained an attorney, Herman Mouton, to prosecute her claim. Mouton assigned the case to his new associate, defendant herein. Plaintiff's property damage claim was resolved immediately. Her personal injury claim was settled on June 24, 1982. United States Fidelity and Guaranty Insurance Company (USF & G) mailed defendant a release and draft in the amount of $2,865.75, made payable to Miss Bellard and Ronnie K. Banks, Sr. as her attorney. The release was returned to USF & G bearing the purported signature of Miss Bellard, witnessed by defendant. Defendant testified that he settled the claim without his client's knowledge and consent, forged her name on the settlement check, then cashed it. Defendant alleges that after Mouton informed him that Miss Bellard had executed a power of attorney, he signed her name to the check, negotiated it and gave the money to Mouton. Mouton denies receiving any money from the settlement and suggests that defendant left the money in Mouton's office when defendant left his law firm to start his own practice, and possibly a secretary stole the money. During the ensuing year defendant made no attempts to disclose the nature of the settlement to Miss Bellard, who was repeatedly given the "runaround" by both attorneys when she inquired about the status of her case. Eventually Miss Bellard contacted the State Bar Association who directed her to the district attorney's office in Calcasieu Parish to file criminal charges of theft against the defendant and Mouton. The defendant was tried and found guilty by a six member jury.

ASSIGNMENT OF ERROR ONE

Defendant contends the trial court committed reversible error when it denied a defense challenge for cause of a prospective juror who testified on voir dire examination that she was introduced to the assistant district attorney at a social gathering. Defendant argues that under LSA-C. Cr.P. Art. 797(3) the prospective juror should have been excused because of her relationship with the assistant district attorney. When a trial judge denies a challenge for cause of a prospective juror, the defendant on appeal need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to sustain a challenge for cause by the defendant, and (2) that the defendant exhausted all of his peremptory challenges. State v. Smith, 430 So.2d 31 (La.1983); State v. Albert, 414 So.2d 680 (La.1982). In the present case defendant exercised all of his peremptory challenges, therefore, this issue can be properly raised on appeal.

During voir dire the prospective juror stated that she was acquainted with the assistant district attorney. She also stated that she never socialized with him and that she could be impartial. A juror's relationship with the prosecutor does not disqualify the juror unless the relationship would impair the juror's ability to be impartial. State v. Eastin, 419 So.2d 933 (La.1982). In the present case, the record is void of any evidence that the casual acquaintance between the prospective juror and the assistant district attorney would affect the juror's ability to be impartial. The trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will not be disturbed on appeal absent a showing of abuse of discretion. State v. Benoit, 440 So.2d 129 (La.1983); State v. Smith, 437 So.2d 802 (La.1983). The record supports that the trial court did not abuse its broad discretion. This assignment of error is without merit.

*532 ASSIGNMENT OF ERROR TWO

Defendant contends that the trial court committed reversible error when it sustained the State's objection to a question by defense counsel to defendant's law partner, Mouton, as to whether he was interested in prosecuting the defendant since Mouton paid Miss Bellard restitution for the check negotiated by defendant. Defendant urges that the answer to this question would establish that there was no criminal intent to deprive Miss Bellard of her settlement money. The State objected on the basis that the question was irrelevant. The district attorney has complete control of criminal prosecutions in his district. La. Const. Art. 5, Sec. 26(B); LSA-C. Cr.P. Art. 61; State v. Kibodeaux, 435 So.2d 1128 (La.App. 1 Cir.1983). Any desire by Mouton to prosecute defendant is irrelevant to any decision by the district attorney to prosecute. This assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

By this assignment defendant contends that the trial court committed reversible error when it refused to grant a mistrial based on the following statement by the State during closing argument: "Yet that man knew that that case had been settled, that money had been received, that he had in fact cashed the draft, rather than placing it in a trust account as the Code of Ethics dictates." The defense objected to the statement as being prejudicial to his client's interest. Defendant complains that the State's closing argument referred to other crimes, was outside the scope of the record, and therefore, prejudicial. LSA-C. Cr.P. Arts. 774, 770(2).

During trial the State asked defendant several questions without objection concerning defendant's knowledge of certain provisions of the Code of Professional Responsibility; specifically DR9-102(B), which provides that a lawyer shall promptly notify a client of the receipt of his funds, securities, or other properties. Defendant responded that he was familiar with the provision but that he did not comply with it in Miss Bellard's case. During closing argument the State made reference to this fact; defendant objected and moved for a mistrial. The trial judge ruled that since the Code of Professional Responsibility was not introduced into evidence, the State was to refrain from commenting about it and the court admonished the jury to disregard the statements.

A mistrial is a drastic remedy and, except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive the defendant of a fair trial.

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Bluebook (online)
503 So. 2d 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-banks-lactapp-1987.