State v. Francis

709 So. 2d 834, 1998 WL 79100
CourtLouisiana Court of Appeal
DecidedFebruary 20, 1998
Docket97 KA 0201
StatusPublished
Cited by5 cases

This text of 709 So. 2d 834 (State v. Francis) 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. Francis, 709 So. 2d 834, 1998 WL 79100 (La. Ct. App. 1998).

Opinion

709 So.2d 834 (1998)

STATE of Louisiana
v.
Michael F. FRANCIS.

No. 97 KA 0201.

Court of Appeal of Louisiana, First Circuit.

February 20, 1998.
Writ Denied May 8, 1998.

*835 Walter P. Reed, District Attorney, Covington, and Terry M. Boudreaux, Gretna, for State.

Frank Sloan, Covington, for Defendant-Appellant Michael F. Francis.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

*836 LOTTINGER, Chief Judge.

The defendant, Michael F. Francis, was charged by bill of information with one count of armed robbery, La.R.S. 14:64, and with two counts of second degree kidnapping, La. R.S. 14:44.1. He pleaded not guilty to all three counts. After a jury trial, he was found guilty as charged on all three counts. He moved for a motion for new trial and post-verdict judgment of acquittal, but the motions were denied.

Subsequently, the State filed a habitual offender bill of information, alleging that the defendant was a second felony habitual offender. After a habitual offender hearing, the defendant was adjudged to be a second felony habitual offender, pursuant to La.R.S. 15:529.1(A)(1)(a), as to all three counts and was sentenced to fifty years for the armed robbery offense, and forty years for each of the second degree kidnapping offenses. The trial court ordered that the sentences run concurrently and without benefit of probation, parole, suspension of sentence, or good time.[1]

The defendant now appeals, designating three assignments of error.

FACTS

The State presented facts to establish the elements of the defendant's crimes with testimony from one of the defendant's accomplices, John C. Markey, Jr., and with testimony from the victims of the crimes, Diane Fay Howard and Donald Harris. The testimony differed in regard to what the victims had been doing when the defendant committed his crimes against them. The State contended that Markey's testimony concerning that time frame was correct, and that the victims lied concerning only that time frame to avoid incriminating themselves in a drug deal.

Markey testified as follows. On May 18, 1994, while in the process of helping Loyd Wise move into Wise's new apartment, Markey met the defendant at the defendant's apartment. The defendant, Wise, and Markey, subsequently went to a daiquiri shop in Mandeville, where they discussed purchasing cocaine. Wise made a telephone call and arranged for some drug dealers (the victims) to bring cocaine to the defendant's apartment. The victims arrived at the defendant's apartment at approximately 10:00 p.m. After the victims arrived, the defendant, Wise, and Markey, tested the victims' cocaine by "snorting" it. Thereafter, the defendant went over to the couch, grabbed a sawed-off shotgun, and pointed it at the victims. The defendant ordered the victims to lie on the ground with their hands behind their backs. The defendant then grabbed a bandanna and a leather string and told Markey to tie the victims up, which he did. The defendant then "asked" Harris for the keys to Harris's vehicle. Harris told the defendant that the keys were in his (Harris's) pocket, and the defendant took the keys from Harris' pocket. The defendant, Wise, and Markey, forced the victims into Markey's vehicle, and the defendant took Harris's vehicle. Both vehicles were driven to Abita Springs, with the Markey vehicle following the Harris vehicle. In Abita Springs, the vehicles stopped at a small store, where the defendant and Wise began dividing the cocaine between themselves. At this point, Markey told the defendant and Wise that he was getting the "`F' out of [there]," and told Wise that if he wanted to leave, he should get into the car (Markey's vehicle) immediately. Wise got into Markey's vehicle along with Howard. The Markey and Harris vehicles were driven to a dirt road, where the victims were abandoned. During the course of the events of that night, Markey had overheard the defendant and Wise plan to abandon the Harris vehicle at the Abita Springs store. However, while Markey was driving his vehicle home, he saw the defendant drive the Harris vehicle past the Abita Springs store. During the course of the events of that night, Markey never heard either of the victims give permission to anyone to take Harris' money, his car, or the cocaine.

The victims testified as follows. On May 18, 1994, Howard flagged down her friend Harris and asked him for a ride home. On the way to Howard's home, Harris stopped at a gas station for gas, and Howard exited the *837 vehicle to use the bathroom. After Howard exited Harris's vehicle, a red car with three men pulled into the gas station. Harris knew one of the men, the defendant, and began talking to him. While Harris and the defendant were talking, one of the other men, Wise, confronted Howard and Harris with a sawed-off shotgun and ordered them into the red car. The defendant got into Harris' car and told the other men to follow him. The vehicles were driven down a road, across a highway and into a subdivision. When the vehicles stopped, Wise tied Howard's and Harris' hands and threatened to kill them, and the defendant asked Harris if he had any money. Harris answered the defendant affirmatively, telling him that he had eighty dollars. The defendant told Harris that the parole officer was looking for him (the defendant) and they had to get out of town. The defendant took Harris's eighty dollars, but then gave it back to him, asking for forty dollars, which Harris gave him. The men subsequently drove Howard and Harris to a dirt road, left them there, and told them where they would be able to find Harris's car.

Harris's vehicle, driven by the defendant, was subsequently pursued by a campground manager/former sheriff's deputy (after being driven through a campground, without its lights on). The defendant was apprehended after a high speed chase.

MOTIONS FOR MISTRIAL

In assignments of error numbers 1 and 2, the defendant challenges the trial court's denial of his motions for mistrial.

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case, the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by La.Code Crim.P. arts. 770 or 771. La.Code Crim.P. art. 775. The determination as to whether or not a mistrial should be granted under La.Code Crim.P. art. 775 is within the sound discretion of the trial court, and a denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. State v. Young, 569 So.2d 570, 583 (La.App. 1st Cir.1990), writ denied, 575 So.2d 386 (La.1991).

La.Code Crim.P. art. 770(2) provides for a mandatory mistrial when a remark is made by the judge, the district attorney, or a court official within the hearing of the jury and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. However, such a remark by a witness does not require a mistrial if the court is satisfied that an admonition to the jury is sufficient to assure the defendant of a fair trial. La.Code Crim.P. art. 771. A mistrial pursuant to the provisions of article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. See State v. Dixon, 620 So.2d 904, 911 (La.App. 1st Cir. 1993).

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Cite This Page — Counsel Stack

Bluebook (online)
709 So. 2d 834, 1998 WL 79100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francis-lactapp-1998.