State v. Jackson

767 So. 2d 833, 2000 WL 1027245
Louisiana Court of Appeal·Decided July 25, 2000·No. 00-KA-191·Published·Cited by 6 cases

Opinion

767 So.2d 833 (2000)

STATE of Louisiana
v.
Lindy JACKSON.

No. 00-KA-191.

Court of Appeal of Louisiana, Fifth Circuit.

July 25, 2000.

*834 Paul D. Connick, Jr., Ellen S. Fantaci, Assistant D.A., Terry M. Boudreaux, Assistant D.A., Joe Aluise, Assistant D.A., Gretna, LA, for Plaintiff-Appellee.

J. Rodney Baum, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant.

(Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and MADELINE JASMINE, Judge Pro Tempore.)

DUFRESNE, Judge.

The defendant, Lindy Jackson, challenges his conviction and sentence for possession of a firearm by a convicted felon. For the reasons set forth herein, we affirm the defendant's conviction and sentence.

The Jefferson Parish District Attorney filed a bill of information charging the defendant with possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1. The matter proceeded to trial before a twelve person jury at the conclusion of which the defendant was found guilty as charged. As a result of this conviction, the court sentenced the defendant to twelve years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals.

*835 FACTS

On August 12, 1998, at approximately 7:30 a.m., officers with the Kenner Police Department executed a search warrant at 2601 Jasper Street in Jefferson Parish.[1] Detectives William Sandino and George Ansardi, along with other narcotics officers, entered the residence, while Detective Jenell Godfrey remained outside until the residence was secured. Upon entry, the officers observed the defendant and a juvenile, identified as Ernest Jackson, in the living room. They also found occupant Laurie Johnson's two young girls in the rear bedroom. After these individuals were secured, Detective Sandino commenced a physical search of the residence. Pursuant to this search, Officer Sandino found a loaded gun in the first bedroom on top of a dresser in plain view. Sandino brought the weapon to the living room and said, "Look what I found." In response, the defendant "threw his hands up and said, `I knew it was there, but it's not mine'." All three detectives testified that they heard the defendant make this comment.

Further investigation revealed that the residence was rental property owned by Mr. Shindler. Detective Sandino obtained a copy of the lease agreement which the defendant and Laurie Johnson, his girlfriend at the time, signed. Based on these facts, the defendant was arrested and subsequently charged with being a felon in possession of a firearm.

At trial, the defense presented several witnesses to controvert the testimony of the officers. The testimony of the defense witnesses indicated that the gun belonged to Donald Rodriguez, and that Rodriguez, not the defendant, lived at the Jasper Street address at the time of the search. The defense testimony further indicated that the defendant never possessed the gun and did not know of its existence.

After listening to this contradictory testimony, the jury found the defendant guilty of possession of a firearm by a convicted felon.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, the defendant complains that the trial court erred in denying his motions for mistrial based on testimony elicited by the state from Detective Sandino and the defendant regarding other charges and the nature of the defendant's prior conviction. The defendant asserts that since the parties entered into a stipulation that the defendant was previously convicted of a felony enumerated in LSA-R.S. 14:95.1, the state was precluded from bringing up other charges as well as the nature of the prior conviction.[2]

We will first address Detective Sandino's testimony. The defendant specifically complains about the following:

Q. Now, why is it that you decided to charge Mr. Jackson with possession of that gun?
A. Well, that was Mr. Jackson's house, and, furthermore, he stated that he knew it was there. He had a past conviction, and that's what he was charged with, along with other charges [emphasis added].

After the detective responded to a few other questions, defense counsel asked for a bench conference, at which point he moved for a mistrial on the basis that the officer's testimony constituted impermissible other crimes evidence. The trial judge denied the defendant's motion.

The trial court is required to grant a mistrial, upon motion of the defendant, *836 when a remark or comment about another inadmissible crime committed by the defendant is made by the judge, district attorney, or a court official. LSA-C.Cr.P. art. 770. A police officer is not a court official under the mandatory mistrial provisions of LSA-C.Cr.P. art. 770. State v. Watson, 449 So.2d 1321 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985).

Thus, the defendant's request for a mistrial is governed by LSA-C.Cr.P. art. 771, which reads as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(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 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.

On the motion of defendant, the trial court has discretion to grant a mistrial if it believes an admonition is insufficient to assure the defendant a fair trial and that ruling will not be disturbed on review absent an abuse of discretion. A mistrial is warranted only if the comment or remark results in substantial prejudice to the accused. State v. Bell, 97-896 (La. App. 5 Cir. 10/14/98), 721 So.2d 38, writs denied, 98-2875 (La.3/12/99), 738 So.2d 1085 and 98-2890 (La.3/12/99), 738 So.2d 1085.

Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Ducote, 614 So.2d 735 (La.App. 5 Cir. 1993). A witness's voluntary, unresponsive testimony which implicates a defendant in other crimes does not require a mistrial, at least where the form of the prosecutor's question does not indicate bad faith. State v. Ingram, 29,172 (La.App. 2 Cir. 1/24/97), 688 So.2d 657.

In the present case, we find that the trial judge did not err in denying the defendant's motion for mistrial based on Detective Sandino's testimony. The comment was unresponsive to the question asked. Furthermore, the complained of testimony was vague and made no specific mention of the crimes the defendant was charged with at the time of his arrest. Therefore, LSA-C.Cr.P. art. 771 does not mandate a mistrial.[3]

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State v. Jackson, 767 So. 2d 833, 2000 WL 1027245 (La. Ct. App. 2000).

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