State v. Harris

625 So. 2d 228, 1993 WL 366751
Louisiana Court of Appeal·Decided September 22, 1993·No. 25169-KA·Published·Cited by 7 cases

Opinion

625 So.2d 228 (1993)

STATE of Louisiana, Appellee,
v.
Freddie HARRIS aka Nookie, Appellant.

No. 25169-KA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1993.

*229 Daye, Bowie & Beresko by Alfred R. Beresko, Shreveport, for appellant.

James M. Buller, Dist. Atty., by L. Charles Minifield and Charles McConnell, Asst. Dist. Attys., Minden, for appellee.

Before SEXTON, LINDSAY and STEWART, JJ.

STEWART, Judge.

After a trial by jury, Freddie "Nookie" Harris was convicted of four counts of distribution of cocaine. He was sentenced to 12 years at hard labor on each count to run concurrently. Harris was sentenced September 9, 1991. The sentencing guidelines are therefore inapplicable. Defendant appeals his conviction on several grounds. We affirm.

FACTS

In March of 1990, the Bienville-Claiborne-Webster Parishes Narcotics Task Force conducted an operation in which undercover officers and a confidential informant rode around in a car together making drug purchases in Minden.

On March 10, 1990, the undercover officers and confidential informant were on Chestnut Street in Minden where they saw several men standing near a corner. As they pulled up to the corner, they were approached by Harris, who asked them what they wanted. Officer Sample stated that he wanted to buy a $40 rock. Harris sold him two off-white stoney rocks. Officer Jackson also stated he wanted to buy a rock, which he did for $20. Each of the rocks was later determined to be cocaine.

On March 30, 1990, a set of undercover agents again went to the same street in Minden. On that night, Deputy Wilson and Officer Skinner purchased $20 rocks from *230 Harris. Also present with Harris was Toronto Thomas.

Harris was charged with, and convicted of, four counts of distribution of cocaine. He was sentenced to 12 years at hard labor on each count to run concurrently. Harris appeals, asserting that the trial court erred in several of its rulings and that there was insufficient evidence to support his conviction. We disagree.

DISCUSSION

Harris asserts that the trial court erred in allowing presentation of certain testimony and in its rulings on several motions for mistrial. Harris also challenges as error a portion of the jury instruction and contends that the evidence was insufficient to support his conviction.

Mistrial

Harris' counsel made several motions for mistrial. None were granted. Harris asserts that the trial court erred in denying his motions for mistrial regarding (1) prejudicial statements made by two law enforcement officers, and (2) the state's closing argument. We shall first examine the legal principles, then discuss the motions for mistrial, regarding the officers' remarks.

Legal Principles: Remarks by Law Enforcement Officers

Mistrial, based upon prejudicial remarks, is governed by LSA-C.Cr.P. Art. 770. This article provides the mandatory grounds for mistrial under circumstances involving comments from a judge, prosecutor or court official. In general, a law enforcement officer's unsolicited, unresponsive reference to another crime by the defendant is not the comment of a "court official" under the provisions of LSA-C.Cr.P. Art. 770. See State v. Goods, 403 So.2d 1205, n. 2 (La.1981), and cases cited therein. Because a law enforcement officer is neither a judge, prosecutor, nor court official, LSA-C.Cr.P. Art. 770 does not apply under these circumstances. See State v. White, 593 So.2d 882, 886 (La.App. 2d Cir.1992), and cases cited therein; see also, State v. Gene, 587 So.2d 18 (La.App. 2d Cir.1991), writ denied, 604 So.2d 993 (La. 1992).

The authority for a mistrial in this situation is found in LSA-C.Cr.P. Art. 771. This article provides that the judge shall promptly admonish the jury to disregard a remark or comment which is irrelevant or immaterial and is such that might prejudice the defendant,

(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on the motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Thus, a mistrial may be granted under LSA-C.Cr.P. Art. 771 when an admonition is deemed to be insufficient to assure the defendant a fair trial. A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial. State v. Harris, 383 So.2d 1 (La.1980); State v. Goods, supra at 1207. Article 771 places the decision of whether to grant a mistrial or to admonish the jury within the sound discretion of the trial court. State v. Harris and State v. Goods, both supra. This decision will not be disturbed absent a showing of a manifest abuse of discretion. State v. Gene and State v. White, both supra.

An admonition under LSA-C.Cr.P. Art. 771 is not necessary unless the remark constitutes an unambiguous reference to another crime. State v. Walker, 593 So.2d 818, 819 (La.App. 4th Cir.1992). Absent a showing of a pattern of unresponsive answers or improper intent by the law enforcement officer or prosecutor, such comments would not fall within the purview of mistrial pursuant to LSA-C.Cr.P. Art. 771. See State v. Goods, supra, 403 So.2d at n. 2, and cases cited therein.

Testimony of Deputy Wilson

Defense counsel objected and requested a mistrial when Deputy Saul Wilson *231 testified that Deputy Haynes knew that Frederick Harris was a known drug dealer. Harris assigns as error the trial court's refusal to grant a mistrial based upon Deputy Wilson's testimony.

The following colloquy transpired during defense counsel's cross-examination of Deputy Wilson:

Q. Now did the confidential informant tell you that specifically she named Mr. Harris as being the person that sold you drugs?

A. Yes sir, he did. The only thing said was there was about a nickname Nookie.

Q. And who identified him as Mr. Harris?

A. We was later told that his name was Frederick Harris.

Q. Somebody else told you that later?
A. Yes.

Q. Was that during some kind of photographic lineup where you had pictures of the various people?

A. After we released the evidence in and told them who the suspect was I bought from, Deputy Haynes then told us that was Frederick Harris.

Q. Based on no picture?
A. Just ...
Q. There was no picture?
A. I guess just based on him knowing that he's a known drug dealer.

At this point the defense attorney objected and requested that the jury be removed. He then requested a mistrial, which was denied. When the jury returned, the trial judge gave the following admonition:

Ladies and gentlemen of the jury, you need to make certain and disregard anything that this witness or any other witness said that was told to them by somebody else. Like somebody else's opinion about something. You need to disregard that. Particularly the last comment that was made before we took a break.

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