State v. Joseph

573 So. 2d 1248, 1991 WL 3638
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1991
Docket89-KA-1399
StatusPublished
Cited by7 cases

This text of 573 So. 2d 1248 (State v. Joseph) 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. Joseph, 573 So. 2d 1248, 1991 WL 3638 (La. Ct. App. 1991).

Opinion

573 So.2d 1248 (1991)

STATE of Louisiana
v.
Bernard JOSEPH.

No. 89-KA-1399.

Court of Appeal of Louisiana, Fourth Circuit.

January 17, 1991.
Writ Denied April 5, 1991.

*1249 Harry F. Connick, Dist. Atty., Brian T. Treacy, James A. Williams, Asst. Dist. Attys., Orleans Parish, New Orleans, for appellee.

Gary W. Bizal, New Orleans, for appellant.

Before CIACCIO, WILLIAMS and BECKER, JJ.

WILLIAMS, Judge.

Defendant, Bernard Joseph, and Marcus Hamilton were indicted on January 14, 1988 for first degree murder, a violation of LSA-R.S. 14:30. Defendant and Hamilton pleaded not guilty. Their cases were severed, and Hamilton was subsequently found not competent to stand trial. A twelve person jury found defendant guilty as charged. Because the jury was deadlocked as to the sentence, defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

Defendant filed this appeal. The issues before this Court are whether the trial court erred 1) in denying a mistrial under LSA-C.Cr.P. art. 770; 2) in admitting into evidence the typewritten statement which defendant gave to police, which did not contain defendant's prior exculpatory statement; 3) in failing to admit into evidence declarations allegedly made by Hamilton concerning Hamilton's motive for attacking the victim; 4) in admitting hearsay statements made by Hamilton; and 5) in not admitting into evidence a true copy of Hamilton's indictment for the 1986 murder of another person. For the reasons assigned, we affirm defendant's conviction.

Facts

On the evening of December 17, 1987, defendant was invited by Fr. Patrick McCarthy to the rectory of the Blessed Sacrament Church in New Orleans for dinner and to help decorate the Christmas tree. Defendant's half brother, Marcus Hamilton, was temporarily living with Fr. McCarthy because someone had threatened to kill Hamilton as a result of a drug deal. Both defendant and Hamilton had known Fr. McCarthy for several years.

After decorating the tree, defendant ate with Fr. McCarthy and Hamilton. Fr. McCarthy later gave Hamilton the house key to let defendant out and then went upstairs to bed. Defendant and Hamilton stayed downstairs and talked.

Hamilton told defendant he was getting fed up with Fr. McCarthy because Fr. McCarthy had been making sexual advances toward him. Hamilton feared that Fr. McCarthy was going to make him move out of the rectory since he refused the advances.

Defendant prepared to leave, and Hamilton went upstairs to retrieve the key. A short time later, defendant heard Fr. McCarthy scream for help. Defendant ran upstairs to the bedroom and saw Fr. McCarthy on the floor with a gash to his forehead and Hamilton standing over him with a hammer in his hand. Defendant testified that Hamilton was cursing the victim, saying that he was tired of the sexual advances.

Hamilton told defendant to get an extension cord. Defendant did this and bound the victim's hands and feet. Hamilton demanded money, and the victim directed him to a box in the closet. This box was retrieved *1250 by defendant. Defendant untied the victim's feet, and the three of them went into Fr. McCarthy's office, where Hamilton instructed Fr. McCarthy to write out two checks for $500.00.

Defendant and Hamilton returned to the bedroom with Fr. McCarthy. When Hamilton asked what was in another closet, Fr. McCarthy gave him the key. A straw basket containing more money was in that closet. Defendant dumped the money into a bag and re-tied the victim's feet.

Hamilton then told defendant to get another piece of cord and wrap it around Fr. McCarthy's neck. Defendant did this. Defendant testified that Hamilton told him to tie the end of the cord to the bed. When defendant could not find a place to tie the cord, Hamilton wrapped it twice around the victim's feet and pulled it until the victim coughed blood and fainted. Defendant testified that Hamilton then stabbed Fr. McCarthy in the neck. When Hamilton saw that Fr. McCarthy was still breathing, he told defendant to get some salt from downstairs. Defendant got the salt container and poured salt into the victim's nose and throat to stop his breathing.

Defendant and Hamilton took a television set, V.C.R. and other items, loaded them into Fr. McCarthy's Chevrolet Blazer and left the rectory. Hamilton dropped defendant off at home and fled.

On December 23, 1987 defendant turned himself into the police. Hamilton was arrested by F.B.I. agents in Baytown, Texas on December 31, 1987. Prior to trial, Hamilton suffered a stroke and was found incompetent to stand trial.

At trial, defendant testified that he wanted to help Fr. McCarthy but instead participated in the homicide because he was afraid Hamilton would kill him if he refused. Defendant cited past instances when Hamilton got angry and violent and he further testified that in 1986 Hamilton admitted to defendant that he had murdered another individual.

The jury returned a verdict of guilty as charged, and defendant appeals.

Errors Patent

Our review of the record for errors patent reveals none.

Assignment of Error No. 1

First, defendant contends that the trial court erred in failing to grant a mistrial after counsel for the state made a remark within the hearing of the jury which allegedly referred to another crime committed or alleged to have been committed by defendant. Specifically, defendant objects to the following remarks made during the State's examination of its own witness, Detective Elena Cox:

Q. [BY JIM WILLIAMS, D.A.]
Now, in connection with the arrest of Marcus Hamilton, did you also develop other information that led to a second suspect?
A. No, we developed that information prior to his arrest. We developed that from followup investigation from the scene and from the witnesses and through our computer ability.
* * * * * *
Q. All right, Detective Cox, in connection with your investigation which led to the arrest of Bernard Joseph did you cause to run on the police computer accomplices, known accomplices of Marcus Hamilton [sic]?
A. Yes, I did.
Q. And did you come up with the name of Bernard Joseph?
A. Yes, I did.

LSA-C.Cr.P. art. 770 reads, in pertinent part:

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; ....

In the instant case, Detective Cox testified that information leading to the arrest of defendant came, in part, from the police department's "computer ability." The D.A. *1251 then asked Detective Cox whether the computer check involved running accomplices of Marcus Hamilton.

While the word "accomplice" is perhaps suggestive of some wrongdoing, it does not necessarily connote criminal activity. Here, the D.A. did not refer to any particular criminal activity committed by defendant or suggest that defendant had ever been arrested in the past. We cannot say that the simple use of the word "accomplice" by the D.A. amounted to a violation of LSA-C.Cr.P. art. 770(2) mandating a mistrial.

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Cite This Page — Counsel Stack

Bluebook (online)
573 So. 2d 1248, 1991 WL 3638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-joseph-lactapp-1991.