State v. Green

478 So. 2d 583
Louisiana Court of Appeal·Decided October 30, 1985·No. 17281-KA·Published·Cited by 3 cases

Opinion

478 So.2d 583 (1985)

STATE of Louisiana, Appellee,
v.
Charles Edward GREEN, Appellant.

No. 17281-KA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1985.

*584 James M. Miller, Oak Grove, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, L.B. "Buddy" Loftin, Dist. Atty., John M. Lancaster, Asst. Dist. Atty., Oak Grove, for appellee.

Before MARVIN, FRED W. JONES, Jr., and NORRIS, JJ.

NORRIS, Judge.

Defendant appeals his conviction by jury verdict of armed robbery, contending in two assignments that a mistrial should have been granted because references to another crime were made before the jury by the clerk of the trial court and that his motion to suppress items seized under a search warrant should have been sustained because of an allegedly defective affidavit.

We agree that the clerk of court, however inadvertently, expressly made reference before the jury to another crime with which defendant was charged and that CCrP Art. 770(2) mandates that defendant be tried anew. Accordingly, we reverse and remand for a new trial.

FACTS

Defendant was charged in separate bills of information with the armed robbery of a convenience store in Oak Grove on April 1, 1984 (No. 13,012) and with the armed robbery of a Western Auto Store in Epps on June 18, 1984 (No. 13,011). Defendant was tried and convicted of the convenience store robbery.

After the jury was sworn and impaneled, upon instructions by the court to read the *585 bill of information and defendant's plea to the jury, the Clerk of Court read:

"State of Louisiana versus 13,011, Charles ..." and was immediately interrupted by the prosecuting attorney.[1] After this interruption, the Clerk then read the bill of information that began:

"State of Louisiana versus 13,012, Charles Edward Green ..."

Following the reading of the bill of information, the clerk then read the minute entry relating to defendant's plea:

State of Louisiana versus 13,012 Charles Edward Green, armed robbery... The accused party was brought into open court in the presence of his court appointed attorney, James N. Miller, waived formal arraignment and enter(ed) a plea of not guilty to each of the charge s against him. Both cases fixed for trial on November 19, 1984 ... Preliminary examination was concluded and the court ruled that the state had shown probable cause and the defendant was held over for trial. (emphasis added)

After requesting that the jury be excused, defendant moved for a mistrial on the grounds that the clerk's comments communicated evidence of another crime to the jury. After argument, the court denied a mistrial, commenting that defendant had not shown prejudice by the clerk's comments, that nothing in the clerk's comments had indicated to the jury that the other charge against the defendant was another armed robbery, and that, instead, the jury could have inferred that the other charge was a misdemeanor or traffic charge.

The clerk of court is a court officer. CCrP Art. 131. When a remark or comment is made by a court official within the hearing of the jury that refers directly or indirectly to another crime alleged to have been committed by the defendant, of which evidence is not admissible, the legislature has mandated that a mistrial shall be granted. CCrP Arts. 5, 770(2). An admonition, as in other circumstances, is not sufficient. CCrP Art. 771. Official Comment (a) to LSA-CCrP Art. 770.

The Art. 770 inquiry is not whether the remark or comment by a court official in the presence of the jury is admissible, but whether evidence of the other crime is or would be admissible. State v. Brown, 428 So.2d 438, 442 (La.1983). If evidence of the other crime is admissible as res gestae evidence, the prejudicial effect of the evidence need not be considered. State v. Stucke, 419 So.2d 939 (La.1982). Otherwise, and in the case of State v. Prieur, 277 So.2d 126 (La.1973) (or LRS 15:445, 446)—evidence of another crime, the prejudicial effect of the evidence must be balanced against its probative value and against the constitutional guarantees of due process and fair trial by impartial jury. State v. Franklin, 353 So.2d 1315 (La. 1978); Brown, supra.

The legislature, in CCrP Art. 770, has effectively established a conclusive or irrebutable presumption that if evidence of the other crime is not admissible, a remark or comment by a court official referring to another crime is prejudicial and is not subject to the harmless error exception. Brown, supra. See also State v. Ola Smith, 418 So.2d 534 (La.1982). Compare State v. Kelvin Smith, 401 So.2d 1179 (La. 1981).

There is scarcely room for a harmless error argument with regard to other crimes evidence. The basis for the rule, and the mandatory provisions of C.Cr.P. 770(2), is that the effect on a jury of inadmissible other crimes evidence cannot be determined, and that such evidence is per se prejudicial and a substantial violation of a statutory right. State v. Green, 315 So.2d 763 (La.1975). *586 C.Cr.P. 921. State v. Brown, supra, at p. 443.

We find no merit in the State's argument that evidence of the other armed robbery would have been admissible because the State gave pretrial Prieur notice to defendant to use the evidence to show system, knowledge, and identity under LRS 15:445, 446. The state's assistant prosecutor agreed before trial that the state would not use evidence of the other armed robbery, notwithstanding the Prieur notice. The State did not attempt to establish in this record the similarity of the two armed robberies. Under these circumstances, the State cannot "cover" or enervate the effect of the clerk's inadvertent, but statutorily prohibited, comments by arguing, and not proving, that evidence of the other armed robbery was admissible.

Cases such as State v. Cushenberry, 407 So.2d 700 (La.1981), are inapposite because they refer to remarks made by someone other than a court official. Cases such as State v. Alexander, 351 So.2d 505 (La. 1977), are inapposite because the remarks of the prosecutor occurred before trial began and referred to remaining charges and other defendants who were not on trial.

State v. Hatch, 305 So.2d 497 (La.1975), upheld the denial of a mistrial where a prosecutor asked what the victims of these crimes saw, because the previous testimony clearly established that there was only one victim and one crime and the jury could not have inferred under any context that defendant was implicated in another crime. In the instant case, the clerk's comments permit no inference other than this defendant, under No. 13,011, was formally charged with another crime besides the No. 13,012 charge and that he had pleaded not guilty to each crime with which he was formally charged. State v. Eastin, 419 So.2d 933 (La.1982), is likewise inapposite because the jury had heard proper or admissible evidence of at least one other burglary and could have inferred that the prosecutor's remark about "these burglaries" referred to evidence of a crime or crimes properly before the jury.

Defendant also argues in this appeal that a mistrial should have been ordered under CCrP Art. 771(1) because the clerk read that the court had ruled that the State had shown probable cause to hold defendant for trial. See minutes quoted supra.

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