State v. Gibson

591 So. 2d 416, 1991 La. App. LEXIS 3312, 1991 WL 259850
CourtLouisiana Court of Appeal
DecidedDecember 11, 1991
DocketNo. 90-KA-0825
StatusPublished
Cited by1 cases

This text of 591 So. 2d 416 (State v. Gibson) 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. Gibson, 591 So. 2d 416, 1991 La. App. LEXIS 3312, 1991 WL 259850 (La. Ct. App. 1991).

Opinion

ARMSTRONG, Judge.

The defendant, Donald Gibson, was charged by bill of information with unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3. At trial a six member jury found the defendant guilty as charged. He was sentenced to serve six years at hard labor. The Defendant now appeals.

On September 12,1989, Ms. Floria Washington was living with her friend, Ms. Mercedes Gibson, the defendant’s aunt, at 5118 Burgundy Street. After Ms. Washington was finished speaking with friends outside, she went inside this house to use the bathroom. When she was in the bathroom, she saw the defendant standing outside the bathroom door. Ms. Washington asked him to leave the residence and he complied. Ms. Washington saw that the microwave oven was missing in the kitchen and walked to a bar at 5200 Burgundy Street where Mercedes Gibson was working.

Ms. Gibson returned home and saw that the microwave was missing from the kitchen. The defendant was sitting on the back steps and Ms. Gibson asked him to help her look for it. Ms. Gibson found the microwave in her backyard hidden under a garbage bag. When she indicated she was going to call the police, the defendant ran from the backyard. Ms. Gibson later found that two wall clocks were also missing from her house. Approximately two weeks later, she saw the defendant and called the police. The defendant was arrested at that time. Ms. Gibson testified that the defendant had lived with her until approximately two years before this incident when she had him removed from her residence and did not allow him into her house after that time.

Ms. Wanda Firstly, a friend of the defendant, testified at trial that the defendant often spends time at Ms. Gibson’s house but that the defendant’s aunt had refused to allow him to enter the house within the last two years. Ms. Firstly also testified that Ms. Gibson’s children take things from her, prompting her to call the police. She also testified that when Ms. Gibson drank excessively, she would get angry and refuse to allow the defendant to enter the house, but, on other occasions was more accommodating.

The defendant testified that he had previously lived with his aunt and that his aunt and his cousins would often allow him to stay at her house. The defendant denied breaking into the house through the back door although the police found that the back door had been kicked in. The defendant denied taking the microwave and the wall clocks. There was an extensive discussion during the defendant’s cross-examination regarding a prior incident where the victim filed charges against the defendant for breaking into her house. These charges were later dropped because of an apparent agreement between the defendant and his aunt that the defendant would not go near his aunt’s house.

A review of the record for errors patent reveals none.

By defendant’s first and second assignments of error, he contends that the trial court erred in permitting the State to cross-examine him regarding a prior criminal act of which the State did not furnish adequate notice under State v. Prieur, 277 So.2d 126 (La.1973).

[418]*418Defendant argues that the State was in possession of the other crimes evidence. Yet, the State failed to disclose this evidence in discovery, failed to give prior notice of its intent to use this evidence, and failed to conduct a Prieur hearing on the admissibility of the evidence. Consequently, defendant was deprived of time to prepare an adequate defense. Furthermore, had defendant known that this other crimes evidence would be introduced, he may have changed his trial strategy, including his choice to testify.

The victim in this case is the defendant’s aunt, who apparently had a running battle with the defendant and with several of her children. The defendant had been permitted to stay in the victim’s house until two years before the alleged crime occurred. The victim testified during direct examination that two years prior to the alleged crime, she evicted the defendant from her house and she had not allowed him in her house since that time. The victim also testified on direct examination that her children may have allowed the defendant to sleep at her house during the prior two years.

The defendant testified on direct examination that the victim had previously called the police on him and also on her children, but then testified that he would not have entered the house had the victim forbidden him from entering. On cross-examination the following exchange took place:

Q. Was there anybody in the house when you went in?
A. I remember seeing Floria. I couldn’t recall if she was in the house. I goes in the house often, just walks in.
Q. You ever take anything while inside there?
A. No.
Q. You ever take a shotgun?
A. My father’s.
MS. JONES:
Objection, Your Honor.
BY THE COURT:
I’ll overrule that.
BY MR. BOLLMAN:
Q. You ever take a purse?
MS. JONES:
Objection, Your Honor.
BY THE COURT:
Unless it’s alleged to have occurred at the time of this alleged offense I'm going to sustain it.
BY MR. BOLLMAN:
Q. Did you ever break into that house before?
MS. JONES:
Objection to relevance, Your Honor. BY THE COURT:
On further reflection—
BY MR. BOLLMAN:
He said he comes and goes and (sic) he pleases, Your Honor. He said that on direct. He’s broken into the house. That doesn’t sound like coming and going as he pleases.

Defense counsel never moved for a mistrial or an admonition.

The mandatory mistrial provision of La. C.Cr.P. article 770 does not apply to this case because trial counsel did not move for a mistrial or request an admonition. State v. Givens, 445 So.2d 9 (La.App. 4th Cir.1983). Defendant’s argument regarding the discovery rules of the Code of Criminal Procedure is also not a tenable argument in this case because the defendant never filed any motions in the trial court requesting that the State furnish him with discovery.

In State v. Jenkins, 573 So.2d 1214 (La.App. 4th Cir.1991), the prosecutor cross-examined the defendant about drug paraphernalia seized at the time of his arrest. This Court held that admission of this testimony was proper to impeach the defendant’s testimony during which he denied knowing about the paraphernalia and which contradicted that of the arresting officer. This Court cited La.C.E. article 607 in finding, that the trial court did not err by allowing this testimony. This Court stated, “The evidence was not used to show him as a ‘bad person’, La.C.E. article 404(B)(1), but was clearly intended to question the accuracy of his testimony which contradicted that of the arresting officer.” Jenkins, at 1219.

[419]

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Bluebook (online)
591 So. 2d 416, 1991 La. App. LEXIS 3312, 1991 WL 259850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gibson-lactapp-1991.