State v. Gene

587 So. 2d 18, 1991 La. App. LEXIS 2302
CourtLouisiana Court of Appeal
DecidedAugust 21, 1991
DocketNo. 22574-KA
StatusPublished
Cited by1 cases

This text of 587 So. 2d 18 (State v. Gene) 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. Gene, 587 So. 2d 18, 1991 La. App. LEXIS 2302 (La. Ct. App. 1991).

Opinion

VICTORY, Judge.

Having been convicted by unanimous jury of one count each of distribution of cocaine and possession with intent to distribute cocaine in violation of LSA-R.S. 40:967, and later adjudicated an habitual offender, defendant Dennis Ray Gene now appeals. Through counsel, defendant contends the trial court erred in refusing to grant a mistrial based on a state witness’s reference to other crimes evidence. He also contends the evidence against him was insufficient to find him guilty of possession with intent to distribute and that his sentences are excessive.

Additionally, via pro se supplemental assignments filed here, defendant contends his multiple offender adjudication was improper, his counsel was ineffective, and he is the victim of overzealous prosecution.

Finding defendant’s pro se assignments of error improper and not reviewable, and otherwise finding no reversible error, we affirm defendant’s convictions and sentences.

FACTS

On November 9, 1989, Metro Narcotics Unit (MNU) undercover officer Barbara Smith pulled into a Monroe apartment complex to buy cocaine. Observing a black male wearing a purple jogging suit nearby, Officer Smith pulled up to the curb where he was standing. When the man approached her vehicle, Officer Smith told him she wanted to buy some crack cocaine. The man, later identified as the defendant, told her he had just what she needed and proceeded to pour several rocks out of a small, brown prescription pill bottle into his hand, allowing her to select what she wanted.

After Officer Smith chose a rock, paid the defendant and received her change, she pulled a short distance up the street and gave defendant’s physical description to several MNU surveillance officers in the area. Within a minute of the transaction, MNU officers began closing in on the defendant, who was finally stopped and later arrested by officers in an apartment building breezeway.

After giving defendant his Miranda rights, the officers conducted a “safety search” of defendant’s person and found $221 cash in his pants pocket, $60 of which was marked currency. In addition, the officers found near the defendant, in the apartment corridor where defendant was [21]*21arrested, a $20 bill and a prescription pill bottle containing four rocks later determined to be crack cocaine.

Defendant was tried by jury and convicted by unanimous verdict on both counts and subsequently adjudicated a second felony offender. He was later sentenced to a total prison sentence of 15 years at hard labor. This appeal followed.

OTHER CRIMES EVIDENCE

In his first assignment, defendant contends the trial court erred in failing to grant his motion for mistrial after one of the state’s witnesses, Officer Smith, referred to other crimes evidence during her testimony. While cross-examining Officer Smith, defense counsel questioned her concerning the events during and immediately following the drug buy.

Attempting to determine her location and the circumstances under which she gave the arresting officers defendant’s physical description, defense counsel asked Officer Smith where the defendant was in relation to two other people standing near him. In response, Officer Smith stated there were other people close to the apartment building, but defendant was “out away from them” and “more or less doing transactions on his own.” [R 94/29-95/6] No objection was then made to the witness’s response.

Defense counsel continued questioning her, trying to learn where she was when she reported the drug buy and whether she kept defendant in view. Officer Smith responded:

When I was parked at the second X at the bottom [of the witness’s drawing], ... I could see the agents [approaching] .... When [the agents] came up, [defendant] was still standing out there. When I pulled up [to the second X, defendant] was still standing out there making transactions. Other people were coming and going. (Brackets added)

[R 97/9-19]

Immediately after the witness’s statement, defense counsel objected and moved for a mistrial. Once the jury was removed from the courtroom, the prosecutor argued the reference to other crimes came only from defense counsel and the witness’s remark was unintentional, unsolicited, and not a clear reference to other crimes. Arguing no prejudice resulted, he requested an admonition.

The trial court denied defendant’s mistrial motion. After the jury returned and without referring to the inadmissible statements, however, the trial court admonished the jury, pointing out the witness gave an “unresponsive answer to defense counsel’s question” and advised them to ignore her response which was being stricken from the record. The trial court additionally admonished Officer Smith to answer only the questions asked of her and not to volunteer or make unsolicited statements. [R 99-100]

A mistrial is a drastic remedy available only in instances where mandatory or warranted by substantial prejudice which would deny the accused a fair trial. State v. Tribbet, 415 So.2d 182 (La.1982). A mistrial is mandatory when a judge, district attorney or court official refers to inadmissible other crimes evidence in the presence of the jury. LSA-C.Cr.P. Art. 770. For the purposes of Article 770, a police officer is not a “court official.” State v. Hayes, 414 So.2d 717 (La.1982); State v. Carter, 412 So.2d 540 (La.1982); State v. Hobdy, 494 So.2d 1321 (La.App. 2d Cir.1986), writ denied, 502 So.2d 110 (La.1987).

A mistrial is discretionary when any person other than a judge, district attorney, or court official refers to inadmissible other crimes evidence in the presence of the jury. The trial court need only grant a mistrial if an admonishment would not suffice to secure the accused a fair trial. LSA-C.Cr.P. Art. 771.

Other factors which may be considered in determining whether a mistrial is warranted are whether the statement was deliberately elicited by the district attorney, whether it was responsive to the question, and whether the witness purposely uttered it to prejudice the defendant. State v. Perry, 420 So.2d 139 (La.1982), cert. den., 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983); State v. Goods, 403 [22]*22So.2d 1205 (La.1981); State v. Henson, 351 So.2d 1169 (La.1977).

Generally, ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. State v. Tribbet, supra; State v. Hayes, supra. The decision over whether to admonish the jury or grant a mistrial under Article 771 rests within the sound discretion of the trial court. It will not be disturbed absent a showing of manifest abuse of discretion. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Goods, supra; State v. Hobdy, supra.

In the instant case, the statement was made by a police officer. Thus, a mistrial was not mandatory. Further, the district attorney did not elicit the statement. The witness made the response under cross-examination by defense counsel. When the witness’s statement was first made, no objection was made by defense counsel. She repeated her statement shortly thereafter. Even then, Officer Smith did not elaborate on her statement.1

Considering the circumstances presented here, the trial court properly denied defendant’s motion for mistrial.

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Related

State v. Gene
587 So. 2d 18 (Louisiana Court of Appeal, 1991)

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Bluebook (online)
587 So. 2d 18, 1991 La. App. LEXIS 2302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gene-lactapp-1991.