State v. Bias

337 So. 2d 426
CourtSupreme Court of Louisiana
DecidedSeptember 13, 1976
Docket57458
StatusPublished
Cited by18 cases

This text of 337 So. 2d 426 (State v. Bias) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bias, 337 So. 2d 426 (La. 1976).

Opinion

337 So.2d 426 (1976)

STATE of Louisiana
v.
Ruben BIAS.

No. 57458.

Supreme Court of Louisiana.

September 13, 1976.

*427 James B. Supple, Robertson & Supple, Morgan City, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to thirtyfive years at hard labor, without benefit of parole, probation or suspension of sentence. He appealed and filed eight assignments of error, one of which has been abandoned.

On the evening of September 24, 1974, William Pace, who was hitchhiking on Highway 90 near Morgan City, accepted an offer of a ride from three men in a light colored Plymouth. Shortly after entering the vehicle he was taken to a side road, threatened with a knife, beaten and robbed of $31 and his wedding ring. Pace narrowly escaped further physical abuse and perhaps death by breaking away from his assailants and running into some nearby woods. Later he was found crawling on the side of a road by a truck driver who took him to a pipe yard in the vicinity and called the police.

In addition to Pace's positive identification of the defendant as one of the robbers, the State presented the following evidence:

The defendant and two companions were seen at a bar soon after the robbery. At this time one of the companions was wearing a wedding ring resembling the one taken from Pace in the robbery. The defendant and his companions were together most of that evening and they were traveling in a Plymouth automobile similar to the one described by Pace. Later, when the automobile was searched, Pace's false teeth were found on the back floorboard. When one of the defendant's companions was arrested he had Pace's wedding ring in his possession.

ASSIGNMENTS OF ERROR NOS. 1 and 3

A deputy sheriff testified that he was at a hospital interviewing Jack Jason, the victim of a different armed robbery, which occurred on the same night, when he was instructed to proceed to the pipe yard to see Pace. Defendant's motion for a mistrial, based on the ground that the State had introduced evidence of another crime committed by the defendant, was denied. Later in the trial, the deputy was recalled by the State for the purpose of testifying that there was no evidence which would connect the defendant with the robbery of *428 Jack Jason and that it was merely coincidental that he was at the hospital interviewing Jason when he was summoned to investigate the robbery of Pace. Before the deputy was recalled, defendant objected on two grounds: that the State should not be allowed to recall him because he had finished his testimony; and that his testimony would give the jury the impression that defendant was implicated in the crime against Jason. At this point the judge instructed the jury to disregard the testimony of the deputy regarding the robbery of Jack Jason and admonished the jury to draw no inference that the defendant was connected with the offense involving Jason.

The State's apparent motive in introducing the deputy's testimony about his seeing Jason at the hospital was to counteract the testimony which it anticipated would be given by one of defendant's witnesses. Edward Welch was called as a witness by the defendant, and he testified that he was at the hospital on the night of the robbery and heard Pace say he was robbed by some persons in a gold GTO whom he could not identify as being either black or white. Therefore, the State undoubtedly was attempting to establish that there were two robberies on the same evening, that both victims were brought to the same hospital, but that Welch had confused Jason with Pace and, consequently, was mistaken when he attributed what he overheard to Pace.

Defendant argues that the trial judge committed reversible error for several reasons. First, he contends that the State was permitted to introduce evidence of a prior offense committed by the defendant without giving notice as required by State v. Prieur, 277 So.2d 126 (La. 1973). Next, he argues that the deputy's remarks, intentionally elicited by the district attorney, referred directly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, and therefore constituted grounds for a mandatory mistrial. La.C.Cr.P. art. 770. Finally, defendant complains that, at the very least, the State's tactics were improper because the deputy's testimony was introduced in anticipation of his defense, which he contends is not allowed by La.R.S. 15:446.

Under the circumstances of this case, we find no merit in defendant's arguments. Taking the record as a whole we do not think that any suggestion was intended or made to the jury that defendant had robbed Jason or any person other than Pace. The safeguards set forth in State v. Prieur, 277 So.2d 126 (La.1973) and La.C.Cr.P. art. 770 afford an accused protection in cases where the State seeks to expose the jury to evidence or remarks relating to his previous offenses or conduct. Since the jury in the instant case was not exposed to any such material we conclude these safeguards were not abridged and that defendant was not entitled to a mistrial on either of these grounds.

La.R.S. 15:446, the statute cited by defendant, affords no basis for defendant's argument that the State's evidence concerning the presence at the hospital of the second robbery victim, Jason, was improperly admitted during the prosecution's case in chief. Instead, the statutory basis, if any, for defendant's contention is supplied by the following provisions:

La.R.S. 15:282 provides:

"The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution's rebuttal."

La.Code of Criminal Procedure art. 765(5) provides:

"The normal order of trial shall be as follows:
"* * *
"(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;
" * * *."

In State v. White, 206 La. 744, 20 So.2d 10 (1944), we held that the introduction by the State of rebuttal evidence during its case in chief was irregular but harmless because the defendant subsequently introduced *429 evidence in contravention thereof. Here, a similar sequence of events occurred. The State improperly introduced in chief rebuttal evidence showing the existence of a second robbery victim, but the subsequent introduction by the defense of Welch's testimony casting doubt on Pace's ability to identify his assailant served to clarify for the jury the reason for the earlier introduction of the State's evidence. We do not condone the State's action in this instance, but we cannot find that the defendant was prejudiced by it, because the prosecution properly could have offered the same testimony in rebuttal at the close of the defendant's case.

Defendant presented two subsidiary arguments in which we find no merit. He contends that the trial judge's action forced him to call Welch as a witness, but we find nothing harmful whatsoever to defendant's case in Welch's testimony, and we cannot conceive of any reason why Welch would not have been used in any event as a witness for the defense.

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337 So. 2d 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bias-la-1976.