State v. Gay

697 So. 2d 642, 1997 WL 333806
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
Docket29434-KA
StatusPublished
Cited by28 cases

This text of 697 So. 2d 642 (State v. Gay) 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. Gay, 697 So. 2d 642, 1997 WL 333806 (La. Ct. App. 1997).

Opinion

697 So.2d 642 (1997)

STATE of Louisiana, Appellee,
v.
Roderick L. GAY, Appellant.

No. 29434-KA.

Court of Appeal of Louisiana, Second Circuit.

June 18, 1997.

*644 Larry Johnson, Stephen Glassell, Shreveport, for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Theresa Bloomfield, Michael Pitman, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS and GASKINS, JJ.

GASKINS, Judge.

The defendant, Roderick L. Gay, was tried by jury and found guilty of first degree murder. He was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. He now appeals his conviction. For the following reasons, the conviction and sentence are affirmed.

FACTS

On the evening of March 24, 1995, the victim, David Morris, drove to his cousin's house on Audrey Lane in Shreveport. He was accompanied by his wife, Dorothy and their twelve year old daughter, Monique. In addition to their other jobs, the Morrises owned a business called "Dot's Boutique," a retail clothing enterprise they operated from the trunk of their car. When they arrived on Audrey Lane, Mr. Morris got out of the car to show his cousin, Marvin Young, the clothes in the trunk.

Several other people approached the car and began looking at the clothing. Mrs. Morris got out to help her husband with the crowd. Suddenly, a blue car with a yellow door pulled up in the driveway. The two men inside were the defendant and Jimmy Spearman. The men got out of the blue car, walked up to the victim's car and looked at the clothes. The defendant walked back to the blue car but then returned to the victim's car. The defendant pointed a handgun at Mr. Morris, who was folding clothes in the trunk, and said "Give me all your shit." Mr. Morris turned and moved toward the defendant. The defendant shot Mr. Morris. The victim either fell onto the defendant or attempted to struggle with him. The defendant shot Mr. Morris a second time and the victim fell to the ground. Mrs. Morris and her daughter escaped the scene, but were able to observe the defendant's further actions. *645 As the victim lay on the ground, the defendant shot him in the head, killing him. The defendant took some clothes from the victim's car, got back into the blue car, and the two men left.

Witnesses at the scene who knew the defendant and Jimmy Spearman told police that the defendant shot the victim, took clothes from the victim's trunk and then fled the scene with Jimmy Spearman, in Spearman's vehicle. Officers obtained a warrant and searched Jimmy Spearman's residence later that evening, finding numerous items of new clothing which were identified by Mrs. Morris as the property stolen from her trunk. Witnesses, including Dorothy and Monique Morris, viewed a photographic line up and identified the defendant as the person who shot the victim. The defendant turned himself in the day after the shooting.

The defendant, who has a prior felony drug conviction, admitted that he was at the scene of the crime and struggled with the victim, but said that the gun went off during the struggle. He testified that he had been drinking heavily and smoking "primos" which are marijuana cigarettes laced with cocaine. According to the defendant, he and Jimmy Spearman went to Marvin Young's house to buy drugs. The defendant said that he had given his money to Spearman to buy drugs from Young, but when Spearman did not return with his change, the defendant became angry. The defendant said that, in his intoxicated condition, he took out his anger on the victim by "tussling" with him, but did not intend to kill or rob him. The defendant denied that he took clothes from the trunk of the victim's car. He testified that his mother came and got him from Spearman's house after the shooting and that he turned himself in the next day at Caddo Correctional Center.

The defendant was charged with first degree murder and the prosecution sought the death penalty. The case was tried in March 1996. The jury convicted the defendant of first degree murder, but declined to impose the death penalty. The defendant was sentenced to serve life in prison without benefit of parole, probation or suspension of sentence. The defendant appealed.

MISTRIAL

The defendant argues that the trial court erred in failing to grant a mistrial under La.C.Cr.P. art. 770(2) due to a police witness' reference to a "mug shot" of the defendant in the police files. The defendant contends that this reference constituted an impermissible reference to other crimes committed by him and that a mistrial was the only acceptable remedy. This argument is without merit.

Shreveport Police Officer Willie Shaw was the lead investigator in this case. Officer Shaw testified that he interviewed Dorothy and Monique Morris, Marvin Young and Lorenzo Brown (a bystander) in connection with the investigation. Mr. Brown had seen the events and knew the defendant by name so the officer developed the defendant as a suspect. The officer then prepared a photo lineup to show the other witnesses. The following testimony, during the state's case in chief, is the subject of this assignment of error:

Q [Prosecutor]: How did you prepare that lineup?
A [Officer Shaw]: What I do is get a suspect name identified by name. I go over and get a photograph of him if he have one in our SPD mug file. And I take five other like or similar photos or similar features and I put them all in a little folder like this and number them one through six. And at that time it's prepared to show to any witnesses.

The defendant objected to this testimony and requested a mistrial, arguing that the officer's testimony about a picture from the "SPD mug file" was an impermissible reference to other crimes evidence. When the court refused to declare a mistrial, but offered to admonish the jury to disregard the remark, defense counsel declined, indicating that an admonishment would "simply make matters worse." On appeal, defendant argues that the officer's answer, while it "may very well have been non-responsive," "nevertheless had an effect on the jury which could not have been cured by anything other than a mistrial."

*646 The defendant argues that a mistrial is required under La.C.Cr.P. art. 770(2), which provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

The defendant erroneously relies upon La. C.Cr.P. art. 770(2) in support of his argument that a mistrial is mandatory in this case. The comment in question was made by a police officer, not the judge, district attorney or other court official. It is well settled that a police officer is not a court official under La.C.Cr.P. art. 770. In State v. Nuccio, 454 So.2d 93 (La.1984), the Louisiana Supreme Court said:

This court has held that a police officer's unsolicited, unresponsive reference to another crime alleged to have been committed by a defendant is not the comment of a court official under C.Cr.P. 770(2), but such an officer will be held to the same standard if his answers show a pattern of unresponsiveness or improper intent. State v. Harris, 383 So.2d 1, 9 (La.1980); State v. Schwartz, 354 So.2d 1332, 1333 n.

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Cite This Page — Counsel Stack

Bluebook (online)
697 So. 2d 642, 1997 WL 333806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gay-lactapp-1997.