State v. Gaudin

493 So. 2d 234
CourtLouisiana Court of Appeal
DecidedJuly 23, 1986
Docket86-KA-82/83
StatusPublished
Cited by10 cases

This text of 493 So. 2d 234 (State v. Gaudin) 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. Gaudin, 493 So. 2d 234 (La. Ct. App. 1986).

Opinion

493 So.2d 234 (1986)

STATE of Louisiana
v.
Gerard GAUDIN.

No. 86-KA-82/83.

Court of Appeal of Louisiana, Fifth Circuit.

July 23, 1986.
Rehearing Denied September 17, 1986.

*235 Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for State of La., plaintiff-appellee.

John Craft, Indigent Defender, Gretna, for Gerard Gaudin defendant-appellant.

Before BOWES and WICKER, JJ., and NACCARI, J. Pro Tem.

J. BRUCE NACCARI, Judge Pro Tem.

The defendant, Gerard Gaudin, was convicted on two separate bills of information, with nine (9) counts of violating LSA-R.S. 14:72—Forgery. Defendant appeals his convictions and sentences based on five assignments of error. For reasons which follow, we affirm the conviction and vacate the sentences and remand to the district court for resentencing in conformity with La.C.Cr.P. art. 894.1

Originally, Gerard Gaudin was charged, on three separate bills of information,[1] with ten (10) counts of violating LSA-R.S. 14:72 —Forgery. The bills of information stated that Gaudin forged Season Passports to the 1984 Louisiana World Exposition. On June 17, 1985 trial began; it was concluded on June 21, 1985 when the jury returned the following verdict: number 84-2800 not guilty; number 84-2245 guilty as charged to one count of forgery; number 84-3189 guilty as charged to eight (8) counts of forgery.

At the sentencing hearing held September 11, 1985, Judge LeBrun sentenced Gaudin to serve a term of three (3) years at hard labor for each of the nine counts. Additionally, LeBrun ordered that the sentences were to run consecutively for a total term of twenty-seven (27) years.

Between the first day of May, 1984 and the thirty-first day of August, 1984, the defendant was linked to a scheme which involved taking photographs of individuals and attaching the photograph to a card entitled "Season Passport" bearing the logo of the 1984 Louisiana World Exposition. The fraudulent Season Passports were then sold to individuals for eighty ($80.00) dollars each.

In August, 1984, a Jefferson Parish detective was visiting a photography studio on an unrelated matter when Gaudin offered to provide him with a Season Passport free of charge. When the officer questioned the authenticity of the Season Passport, Gaudin assured him that he had purchased genuine blank Season Passports from a travel agency. Gaudin asserted that the travel agency had over bought blank Season Passports believing the crowd would be larger at the Fair, he was, *236 therefore, able to get them for a very good price.

The officer, suspecting that the Season Passport he was given was forged, turned it over to an investigator with the New Orleans District Attorney's Office. Subsequently, an investigation ensued which involved an undercover officer who, while wired for sound and recording, visited the photography studio and purchased a Season Passport from Gaudin and an assistant for eighty ($80.00) dollars. The transcript of this recording reveals that Gaudin told the undercover agent the same story that the blank Season Passport was purchased from a Travel Agency. The next day, August 15, 1984, after the undercover agent unsuccessfully tried to purchase blank Season Passports from Gaudin, two arrest warrants, one for Gaudin and one for the other individual, and a search warrant were issued and executed.

Further investigation of the scheme revealed the indentities of several persons who had purchased Season Passports from Gaudin for eighty ($80.00) dollars each. These Season Passports were purchased at a private residence belonging to one of the purchasers. Gaudin did not have a assistant with him while he made these Season Passports.

Defendant presents five (5) assignments of error:

(1) The court erred in permitting testimony concerning prior bad acts and in denying the subsequent motion for a mistrial.

(2) The evidence presented against defendant was not sufficient to justify the verdict.

(3) The court erred in sentencing appellant to an excessive sentence and in ordering that the sentences on each count be served consecutively.

(4) The court erred in failing to grant a mistrial following a reference by the prosecution in argument to the failure of the defendant to take the stand.

(5) Also assigned as error are any and all errors patent on the face of the record.

Defense counsel's first assignment of error is based on the contention that the testimony of Eugene Fields, Chief of Detectives of the Jefferson Parish Sheriff's Office provided evidence of other crimes and constituted mandatory grounds for a mistrial. The testimony to which defense counsel refers is based upon statements made by Chief Fields during the prosecution's cross examination of the witness.

It must be noted that prior to the statement at issue being made, its impact and relevance was fully discussed by the judge and both parties. Defense counsel was admonished by the judge and the Assistant District Attorney not to broach the subject of how Gaudin knew Fields was a police officer if he did not want the prosecution to question Fields on it also.

During the presentation of the state's case, neither the state nor defense counsel asked Chief Fields if Gaudin knew Fields was a police officer. Thus, the subject remained closed and not available to the jury.

Subsequently, however, Fields was called to the stand by defense counsel specifically for the purpose of establishing that the defendant was aware of Field's position as a police officer.

[MR. WALKER:]
Q. And at the time Mr. Gaudin gave you that passport, did he know you to be a police officer?
[CHIEF FIELDS:]
A. Absolutely, yes sir.
Q. Did he know you to be a ranking police officer ...
A. Yes sir.
Q.... with the Jefferson Parish Sheriff's Office?
A. Yes sir.
. . . . .
Q. And you are certain in your own mind that Mr. Gaudin knew that you were a police officer during all of this?
A. Absolutely.
MR. WALKER:
No further questions.

*237 On cross-examination after further discussion of the matter, the state then elicited the following testimony:

MR. HONIG:
Q. Detective Fields, on cross-examin—on direct examination, Mr. Walker asked you very carefully, `Are you certain that the defendant knew that you were a police officer,' and you said `Yes,' is that correct?
A. That's correct, sir.
Q. Okay. Tell the Court why you're certain that the defendant knew you were a police officer.
A. In the latter part of 1980 or early 1981, I'm not sure of the year, I was present at his apartment when detectives from my office executed a search warrant involving stolen property and subsequent to that, he was an inmate at the Parish Prison, worked as a Trustee at the motor pool and serviced my car.

Defendant argues that pursuant to La.C. Cr.P. art. 770 the testimony elicited from Fields by the state constitutes mandatory grounds for a mistrial. La.C.Cr.P. art. 770(2) prohibits reference by a judge, a district attorney or a court official, to other crimes by the defendant as to which evidence is not admissible under penalty of a mandatory mistrial.

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Bluebook (online)
493 So. 2d 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaudin-lactapp-1986.