State v. Grant

614 So. 2d 344, 1993 La. App. LEXIS 473, 1993 WL 33000
CourtLouisiana Court of Appeal
DecidedFebruary 11, 1993
DocketNo. 92-K-2315
StatusPublished
Cited by1 cases

This text of 614 So. 2d 344 (State v. Grant) 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. Grant, 614 So. 2d 344, 1993 La. App. LEXIS 473, 1993 WL 33000 (La. Ct. App. 1993).

Opinions

SCHOTT, Chief Judge.

We grant certiorari in order to review the trial court’s denial of relator’s application for post conviction relief. Relator was convicted of second degree murder in violation of R.S. 14:30.1 and he was sentenced to serve life imprisonment. This court affirmed the conviction and sentence. State v. Grant, 531 So.2d 1121 (La.App. 4th Cir. 1988), writ den. 567 So.2d 1117 (La.1990).

In that opinion the court summarized the pertinent facts supporting relator’s conviction.

On application for post conviction relief, relator raises two claims: (1) that the trial court committed reversible error in giving an erroneous jury charge on reasonable doubt; and (2) that he was denied effective assistance of counsel because trial counsel twice failed to move for a mistrial when the prosecutor made impermissible references to other crimes, namely relator’s alleged drug use.

First, relator argues that the jury instruction on reasonable doubt was erroneous under the standard enunciated in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Cage announced a new rule of law and cannot be applied retroactively. Skelton v. Whitley, 950 F.2d 1037 (5th Cir.1992). Since the relator asserts that the erroneous jury charge was similar to that in Cage, his claim is without merit and is denied.

Secondly, relator argues that he was denied effective assistance of counsel at trial when counsel twice failed to state objections or move for a mistrial when the State made impermissible references to other crimes evidence. Upon motion of defendant, Article 770(2) mandates the granting of a mistrial, if the district attorney refers directly or indirectly to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to

disregard the remark or comment but shall not declare a mistrial.

On direct appeal relator had claimed that the trial court committed reversible error because it failed to order a mistrial when the prosecutor made impermissible references to the relator’s use of cocaine during cross examination of a defense witness, Vera Coleman.

Q. He had gotten fired from south Central Bell because of his cocaine use, right?

BY MR. WOODS:

Oh, Judge, Objection.

BY THE COURT:

Why are you laughing, Mr. Woods. I don’t think you need to laugh.

I don’t think it’s funny at all Judge. I think it’s highly improper, and I’d like to make a motion outside the presence of the Jury.

Okay, please come into my chambers. * * * * * *

For the record, there was a comment made in the last answer and question that I wish the Jury to disregard, and to put it out of your mind. Please act as if it had never been said.

On direct appeal, this court concluded that on the record “counsel’s objection was sustained and he was granted his request for an admonition to disregard [the drug use reference.] There is no indication that he requested and was denied a mistrial; the court apparently granted his request. Defendant cannot now on appeal complain of any alleged error.” Grant, at page 1123.

In his application for post conviction relief now under review, relator presents the same argument within the context of an ineffective assistance of counsel claim. The standard of review for a sixth amendment ineffective of counsel claim requires that relator affirmatively show that counsel’s performance was deficient and that but for counsel’s unprofessional errors the result of the proceeding would have been [346]*346different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The crux of relator’s argument is that counsel’s deficiency in the performance of his duty consisted in his failure to move for a mistrial and but for this failure the result would have been a mandatory mistrial pursuant to C.Cr.P. art. 770, a different result than the one which he obtained.

This argument flies in the face of art. 770 which provides a defendant with the option of moving for a mistrial or requesting only that an admonition be given. It can hardly be said that requesting an admonition rather than moving for a mistrial when there has been an impermissible reference to another crime constitutes ineffective assistance of counsel in every case as a matter of law because there may be a variety of valid practical reasons why counsel does not want to abort the trial and start all over from the beginning. The decision to ask for the admonition in the present case involved trial tactics and was a reasonable judgment by counsel in the trial setting. It was not a deficiency in his representation of defendant or even an error on his part.

Based upon the reasoning of the court when defendant’s direct appeal was considered we are convinced that counsel did not move for a mistrial, but elected to move for an admonition which was given by the trial judge. However, we are referred to an entry in the docket master for June 10, 1987, which reflects that a motion for mistrial was denied by the court along with two minute entries which also report the denial in chambers of defense counsel’s motion for mistrial. These secondary entries of an event that transpired in chambers and which was not contemporaneously transcribed do not alter the facts that when the judge emerged from chambers she admonished the jury and there is no recorded objection or affirmative request on the record for a mistrial. Even if a motion for a mistrial was mentioned and discussed in chambers the record makes it clear that following that conference counsel was satisfied with the admonition. Since this was a perfectly legitimate and appropriate option provided by art. 770 counsel’s election of that option cannot be considered as deficient representation of defendant.

The second alleged impermissible reference to other crimes to which relator objects occurred during cross examination of relator.

Q: Could it be, Mr. Darcel Grant, that you know about cocaine not from Constance’s use but from your own personal experience?
A: I never use cocaine.
Q: Could it be that cocaine was part of the problem or part of the reasons why you were fired from South Central Bell? You were missing work because you couldn’t get up because you were too doped up with cocaine?
A: That’s not true.
BY MR. ASHLEY:
Judge, I renew my objection and my motion.
BY THE COURT:
And it’s denied.

This colloquy must be considered in the light of the direct examination of the defendant in which he portrayed himself as one who was knowledgeable about the evils of cocaine and was intent upon saving his wife and children from it. Examples of this testimony are as follows:

Q. This was the morning after Halloween?

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Related

State v. Spears
647 So. 2d 1313 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
614 So. 2d 344, 1993 La. App. LEXIS 473, 1993 WL 33000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grant-lactapp-1993.