State v. Jack

614 So. 2d 215, 1993 WL 25686
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1993
DocketCR92-666
StatusPublished
Cited by4 cases

This text of 614 So. 2d 215 (State v. Jack) 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. Jack, 614 So. 2d 215, 1993 WL 25686 (La. Ct. App. 1993).

Opinion

614 So.2d 215 (1993)

STATE of Louisiana, Appellee,
v.
Michael James JACK, Defendant-Appellant.

No. CR92-666.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1993.

*216 Gerald Breaux, Lake Charles, for defendant-appellant.

Paul Reggie, Asst. Dist. Atty., Lake Charles, for appellee.

Before YELVERTON, KNOLL and SAUNDERS, JJ.

*217 SAUNDERS, Judge.

Michael Jack, defendant and appellant herein, was tried by a jury and convicted of aggravated rape, attempted second degree murder, and aggravated crime against nature. Jack was sentenced to mandatory life imprisonment without benefit of parole, probation or suspension of sentence on the aggravated rape conviction. Additionally, he was sentenced to the maximum sentence of fifteen (15) years at hard labor without benefit or parole, probation or suspension of sentence for the aggravated crime against nature conviction and the maximum sentence of fifty (50) years at hard labor for the attempted second degree murder conviction, all to run concurrently. Jack appeals these convictions alleging four (4) assignments of error.

FACTS

In the early morning hours of July 30, 1990, the defendant knocked on the door of the One Hour Martinizing and asked the victim, an employee of the store, to retrieve his clothes allegedly brought there for cleaning. Although the store had not yet opened for business, the victim proceeded to search for the defendant's clothing. While looking for these clothes, the defendant suddenly appeared behind the counter, next to the victim. The defendant grabbed the victim around the throat and threatened to kill her if she screamed. He pushed the victim into the bathroom located in the middle of the store and closed the door behind them. While in this bathroom, the victim convinced the defendant to take the money in the register instead of harming her. However, after the defendant appeared to do this, he again grabbed the victim by the throat and forced her back into the bathroom. At this point, the defendant forcibly undressed the victim. The defendant told her to get down on all fours whereupon he vaginally raped her. After two or three minutes of vaginal intercourse, the defendant then forcibly placed his penis in the victim's mouth for several minutes. The defendant then continued to vaginally rape the victim. Upon ejaculation, the defendant grabbed the victim's torn shirt and strangled her to the point of unconsciousness. When the victim awoke, she saw the defendant pull his fist back and strike her in the face. He told her to stay in the bathroom until he left. Several minutes later, the victim dressed and checked the store to see if the defendant was still present. She then ran to a nearby house for assistance because the phone at the store had been ripped off the wall by the defendant.

Afterward, the police arrived and began their investigation. Among other things, the investigation revealed an amount of defendant's semen in the panties of the victim. DNA analysis placed the chance that the semen was not that of the defendant's to be about one (1) in forty (40) thousand.

The defendant argued that he had been having a sexual relationship with the victim for some months prior to the crime. The victim testified that she had never seen the defendant prior to the attack. The jury convicted him of aggravated rape, aggravated crime against nature, and attempted second degree murder.

ERRORS PATENT

After a thorough review of the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant claims that the trial court erred in denying his motion for mistrial due to a reference by the prosecution to inadmissable evidence of other crimes allegedly committed by the defendant.

The defendant had previously pled guilty to possession of marijuana as a result of a bill of information which charged him with distribution of marijuana. During cross-examination of the defendant, the prosecution asked him how many times he had been convicted of a crime. Defendant's response was, "only once." However, defendant had several prior convictions. The prosecution then asked specifically about several prior convictions, whereupon the defendant stated that he did not consider these prior offenses as convictions. The *218 continuing colloquy between the State and the defendant regarding the prior convictions appears below:

Q (MR. FREY) You also on that same date pled guilty, 6055-90, disturbing the peace with Ms. Bushnell present. Remember that?
A Yes, sir.
Q Same date, 6056-90, resisting arrest. Remember that?
A Yes, sir.
Q 6057-90, criminal mischief. Remember that?
A Yes, sir.
Q Now, I would like for you to tell us why you lied to us about having been convicted more than once?
A Because I didn't take that as a conviction.
Q Oh? You went to jail, didn't you?
A He gave me time served.
Q You served time in jail for these four violations, but you don't count that as a conviction?
A I didn't count it as a conviction.
Q Now, I specifically asked you if you had pled guilty or been convicted by a court. You don't count it a conviction when you go into court and say I'm guilty?
A [No response by the witness].
Q Let me ask you this: Did you go to court and plead guilty for possession of marijuana, amended from distribution of marijuana?
MR. CROCHET: Objection. Move for a mistrial

After a lengthy discussion in chambers, the trial court overruled this objection by stating:

THE COURT: Yesterday's events concluded with the defense moving for a mistrial. The Court has considered the issue and finds the issue to be whether there is quote, another crime, end quote, within the meaning of Code of Criminal Procedure, article 770, paragraph 2, when a prosecutor remarks on a charge for which there was a conviction only of a lesser included offense, which remarks are made in a context of factually describing the guilty plea of the defendant. The Court believes that this is not the meaning of quote, another crime, end quote, in the context of 770, and will on motion of the State for the defendant admonish the jury. This motion for a mistrial is denied.

The trial court did not consider the bill charging him with distribution to be evidence of another crime because he pled to a lesser included offense of the initial charge contained in this bill. In addition, the trial court admonished the jury by stating that the comments on other offenses are not to be considered as evidence of credibility, guilt or innocence of the present crime.

On appeal, defendant argues that due to the above reference to another crime, he is entitled to a mandatory mistrial under LSA-C.Cr.P. art. 770(2) which states as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
....
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Morgan
706 So. 2d 1084 (Louisiana Court of Appeal, 1998)
State v. Krogh
630 So. 2d 284 (Louisiana Court of Appeal, 1993)
State v. Duke
625 So. 2d 325 (Louisiana Court of Appeal, 1993)
State v. Claiborne
624 So. 2d 17 (Louisiana Court of Appeal, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
614 So. 2d 215, 1993 WL 25686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jack-lactapp-1993.