State v. Banks

612 So. 2d 822, 1992 WL 410151
CourtLouisiana Court of Appeal
DecidedDecember 23, 1992
Docket92 KA 0030 C/W, 92 KA 0031
StatusPublished
Cited by8 cases

This text of 612 So. 2d 822 (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, 612 So. 2d 822, 1992 WL 410151 (La. Ct. App. 1992).

Opinion

612 So.2d 822 (1992)

STATE of Louisiana
v.
Abram BANKS.

Nos. 92 KA 0030 C/W, 92 KA 0031.[1]

Court of Appeal of Louisiana, First Circuit.

December 23, 1992.
Writ Denied March 26, 1993.

*824 Doug Moreau, Dist. Atty., Office of the District Attorney, Baton Rouge by Jesse Bankston, Asst. Dist. Atty., for plaintiff/appellee.

Mike Mitchell, Public Defender's Office, Baton Rouge, for defendant/appellant.

Before CARTER and LeBLANC, JJ., and CHIASSON[*], J. Pro Tem.

LeBLANC, Judge.

The defendant, Abram Banks, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. He pled not guilty and, after trial by jury, was found guilty as charged on September 4, 1991. After a hearing, Banks was adjudicated a second felony habitual offender. He was sentenced to sixty-five years at hard labor without benefit of parole, probation, or suspension of sentence with credit for time served. See LSA-R.S. 15:529.1. He has appealed, urging the following assignments of error:

1. The trial court erred when it denied the defendant's motion for mistrial.
2. The trial court erred when it denied the defense challenge for cause.
3. The trial court erred when it overruled defense counsel's objection to the introduction of evidence.
4. The trial court erred when it overruled defense counsel's objection to the form of the habitual offender charge.
5. The trial court erred when it adjudged the defendant to be a second felony offender.
6. The trial court erred when it imposed an excessive sentence and failed to comply with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1.

The defendant expressly abandoned assignments of error numbers two and three. For the reasons expressed, we affirm.

DISCUSSION

On February 12, 1991, at approximately 5:25 p.m., Rhonda Woolsey left the Renaissance Rehabilitation Hospital on North Boulevard in Baton Rouge, Louisiana, where she had been working as a nurse. When she walked out the back door of the hospital, she noticed two men standing in the back corner of the parking lot. As she walked toward her car, she noticed one of the men, who she later identified as Banks, walking toward her. As soon as she opened her car door and sat down, Banks appeared next to her. He pointed a gun at her and demanded that she give him her purse. Ms. Woolsey testified that she said "No." Banks then moved the gun closer to her head, reached across her body and grabbed her purse from her shoulder. He *825 then ran to the other man in the parking lot, who appeared to be a lookout.

The victim immediately reported the robbery to the police. She also canceled all her credit cards that had been in the stolen purse. Later the same evening, Banks was arrested when he, another male and a female attempted to use the victim's credit cards to buy clothes.

ASSIGNMENT OF ERROR NUMBER ONE:

Banks argues in his first assignment of error that the trial court erred in denying his motion for a mistrial. He contends that the trial court should have declared a mistrial after it informed potential jurors that his counsel was from the Office of the Public Defender. Banks asserts that he was prejudiced by this remark and that the court, at least, should have admonished the venire to disregard the improper statement.

During the court's general instructions to the venire, the judge stated:

THE ATTORNEYS—THIS IS MR. JESSE BANKSTON FROM THE DISTRICT ATTORNEY'S OFFICE. THIS IS MR. MIKE MITCHELL FROM THE OFFICE OF THE PUBLIC DEFENDER, AND THIS IS MR. ABRAM BANKS, THE DEFENDANT.

The judge made these statements of general introduction to the venire before the first prospective juror was called for examination. Because the first prospective juror had not been called for voir dire examination at the time the trial judge made this statement, the mandatory provisions of La.C.Cr.P. art. 770 did not require a mistrial. The remark was otherwise not so prejudicial that it deprived Banks of a fair trial. See La.C.Cr.P. art. 771; State v. Martinez-Sanchez, 554 So.2d 1236 (La.1990). Furthermore, according to the record, Banks failed to request an admonition; he cannot now complain of any prejudice resulting from its omission. State v. Baldwin, 388 So.2d 664, 674 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981).

We find that the trial court properly denied the defendant's motion for a mistrial. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

In his fourth assignment of error, Banks argues that the trial court erred in overruling his objection to the form of the habitual offender charge. He contends that the document filed by the State formally charging him as a second felony habitual offender was not a proper bill of information under La.C.Cr.P. art. 463 as certain required language was left out of the form. He further asserts by using this particular form, the state was merely informing the court of his habitual offender status, rather than charging him as an habitual offender. He argues that this particular form is merely a conclusion of law and not a written accusation of a crime as required under La.C.Cr.P. arts. 463 and 464.

An habitual offender bill of information charging that a defendant has previously been convicted of one or more felonies does not charge a substantive crime. Such a proceeding is merely part of sentencing and allows enhanced penalties for repeat offenders. See State v. Langendorfer, 389 So.2d 1271, 1276-77 (La.1980). LSA-R.S. 15:529.1 D(1) provides that a district attorney may file an information charging a defendant as a multiple offender following his conviction for the instant crime if that defendant has prior convictions. However, this additional bill of information is merely a method of informing the court of the circumstances and of requesting an enhancement of the penalty to be imposed. State v. Walker, 416 So.2d 534, 535-36 (La.1982).

In the instant case, the district attorney filed with the trial court a document titled "INFORMATION TO ESTABLISH HABITUAL OFFENDER STATUS." In the document, the State requested that the trial court adjudge Banks to be an habitual offender. The document clearly set forth the defendant's previous convictions and facts which supported this information. Thus, the State adequately alerted the trial court and Banks as to the State's intent to proceed under LSA-R.S. 15:529.1. Additionally, the court sufficiently informed *826 Banks of his rights at the habitual offender hearing.

Banks contends that the document failed to conform to the basic requirements for a bill of information because it lacked technical language suggested in La.C.Cr.P. art. 463. However, because this document asserting habitual offender status did not charge Banks with a new crime, rather it gave the court information for penalty enhancement, we do not find that the habitual offender bill of information was defective or that it either unfairly misled or prejudiced the defendant.[1]

The trial court did not err in overruling the defendant's objection to the form of the habitual offender bill of information. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

Banks contends in his fifth assignment of error that the trial court erred in adjudging him to be a second felony habitual offender.

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Bluebook (online)
612 So. 2d 822, 1992 WL 410151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-banks-lactapp-1992.