State v. Bishop

734 So. 2d 674, 1999 WL 44856
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1999
Docket98-1147
StatusPublished
Cited by7 cases

This text of 734 So. 2d 674 (State v. Bishop) 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. Bishop, 734 So. 2d 674, 1999 WL 44856 (La. Ct. App. 1999).

Opinion

734 So.2d 674 (1999)

STATE of Louisiana, Appellee,
v.
Chester BISHOP, Defendant-Appellant.

No. 98-1147.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1999.

*675 Charles F. Wagner, Dist. Atty., T. Gerald Henderson, Alexandria, for State of La.

J. Albert Ellis, for Chester Bishop.

Before THIBODEAUX, AMY and SULLIVAN, Judges.

AMY, Judge.

In this criminal matter, the defendant appeals the trial court's denial of his motions for new trial and mistrial and seeks a reversal of his conviction. For the following reasons, we affirm the trial court's rulings and judgment.

Factual and Procedural Background

On or about February 10, 1997, Defendant, Chester Bishop, entered the home of his neighbor, Stacy Wolfe. Conflicting testimony was presented at trial regarding whether Defendant entered Ms. Wolfe's home with or without her permission.

Ms. Wolfe testified that she thought her cat was scratching at the door and that she opened the door to let it in. She further testified, however, that when she opened the door she saw Defendant outside her door, she did not recognize him, and she attempted to close the door on him.

The State introduced Defendant's testimony from his first trial, where he presented his version of what transpired at Ms. Wolfe's house, along with his reasons for going there. Contrary to Ms. Wolfe's explanation, Defendant testified that when Ms. Wolfe saw him she opened the door wider, leading him to believe that she was inviting him into her house. He also testified that he told her that he was her neighbor. According to Defendant's testimony, his purpose in going to Ms. Wolfe's house was to borrow money to buy crack and that he was addicted to the substance. He further testified that, after he asked Ms. Wolfe for some money, she told him that she did not have any cash, but that she did have an ATM card. He testified that after she gave him the card, she began "flipping out," yelling, "[D]on't hurt me."

Ms. Wolfe, however, presented a different account of the events of that night. She testified, "as I tried to shut the door, the man pushed the door open and grabbed my shoulder." She further stated that she attempted to get away from him, saying "Jesus, Jesus," and that Defendant said, "[S]hut up." She stated that, at one point, they fell to the floor with Defendant on top of her, and that he had pinned her arms down and was choking her. Crying, she stated, "I thought at that point that I was going to die." Additionally, she testified that he pulled her pajama pants down while holding her hair with his other hand, and that she offered to perform oral sex on him instead, telling him that she was still a *676 virgin. She testified that, after a couple of minutes, he asked her if she had any money, to which she responded that she did not. He then asked her if she had an ATM card, which she testified she gave to him, along with a PIN number. She further testified that he put his jacket back on, at which point she noticed his name tag that said "Chester" and another tag that said "England Air Park." After Defendant left, Ms. Wolfe went to a grocery store to call the police.

On March 20, 1997, Defendant was charged by bill of information with committing the offense of aggravated burglary, in violation of La.R.S. 14:60. The bill states that Defendant committed the offense in the following manner:

HE DID ON OR ABOUT THE 10th day of February, 1997, enter[] an inhabited dwelling, with the intent of committing a felony or a theft and committed a battery upon a person, D.O.B. 3-2-72, while in the dwelling, in violation of R.S. 14:81[.]

On April 7, 1997, Defendant was arraigned, at which time he pled not guilty. Defendant was initially tried on December 16, 17, and 18, 1997, but a mistrial was declared because the jury deadlocked. On March 17, 1998, the State filed a notice of intent to use Defendant's testimony from the first trial at his second trial. Defendant was retried on March 17, 18, and 19, 1998. On March 18, 1998, defense counsel made an oral motion for mistrial, which motion was denied by the trial court on March 19, 1998. On March 19, 1998, the jury found Defendant guilty as charged. Defendant filed a motion for new trial on April 24, 1998, which motion was denied by the trial court. Defendant was sentenced to fifteen years at hard labor on the same day. On May 19, 1998, Defendant filed a motion to reconsider sentence, which motion was denied on May 26, 1998. Defendant filed the instant appeal on June 2, 1998, in which he presents the following one assignment of error for our review:

That the trial court erred in denying the defendant's motions for mistrial and new trial following the State admission into evidence in the case-in-chief [of] the allegedly redacted testimony of the appellant which included unrelated other crimes evidence and multiple references to a prior jury trial.

Discussion

Errors Patent Review

In accordance with La.Code Crim.P. art. 920, we begin our evaluation of this appeal by examining the record for errors patent. Upon examination, we find that three errors patent exist. Initially, we find that the trial court failed to inform Defendant of the three-year time limitation for filing post-conviction relief as mandated by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to inform Defendant of the applicable prescriptive period by sending him appropriate written notice within ten days of rendition of this opinion, and filing written proof of Defendant's receipt of this notice into the record. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.1993), writ denied, 623 So.2d 1334 (La.1993).

Secondly, Defendant was sentenced on the same day as the trial court's denial of his motion for new trial. Both of these events occurred on April 24, 1998. Regarding sentencing delays, La.Code Crim.P. art. 873 requires a twenty-four hour delay between the trial court's denial of a motion for new trial and imposition of sentence. Although the trial court's failure to observe the twenty-four hour delay is an error patent, we will generally not reverse the sentence unless the defendant demonstrates prejudice. See State v. Dauzat, 590 So.2d 768 (La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992). In the instant matter, we need not remand for re-sentencing, as Defendant has neither objected to the sentence imposed upon him, nor has he alleged any prejudice due to the trial court's failure to observe *677 the delay. See State v. White, 404 So.2d 1202 (La.1981).

Lastly, the bill of information charging Defendant with aggravated burglary incorrectly cited to La.R.S. 14:81, as La.R.S. 14:81 is the provision regarding indecent behavior with a juvenile. However, the clerk did not read La.R.S. 14:81 when reading the bill to the jury.[1] Regarding an error in the citation, La.Code Crim.P. art. 464 states as follows:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Further, La.Code Crim.P. art. 465 provides that aggravated burglary may be charged as "A.B.

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Cite This Page — Counsel Stack

Bluebook (online)
734 So. 2d 674, 1999 WL 44856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bishop-lactapp-1999.