State v. Lewis

662 So. 2d 77, 1995 WL 573798
Louisiana Court of Appeal·Decided September 28, 1995·No. 95-KA-0412·Published·Cited by 7 cases

Opinion

662 So.2d 77 (1995)

STATE of Louisiana
v.
Vataggo D. LEWIS.

No. 95-KA-0412.

Court of Appeal of Louisiana, Fourth Circuit.

September 28, 1995.

Harry F. Connick, District Attorney, Charmagne Padua, Assistant District Attorney, New Orleans, for State/Appellee.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Defendant/Appellant.

Before BYRNES, CIACCIO and MURRAY, JJ.

CIACCIO, Judge.

Defendant, Vataggo D. Lewis, was charged by bill of information with attempted armed robbery, a violation of La.R.S. 14:(27)64. At *78 his arraignment, he pleaded not guilty. On receiving a copy of the police report, defense counsel waived a preliminary hearing and withdrew all discovery motions. After trial, a twelve-member jury found him guilty as charged. The trial court sentenced defendant to serve thirty years at hard labor without benefit of parole, probation, or suspension of sentence as a second offender under R.S. 15:529.1. Defendant now appeals.

At trial Vincent P. Poret, the victim, testified that he was driving his cab on the evening of July 13, 1994, when he was called to pick someone up at 1429 South Rampart Street. On arriving at that address, he found two men—one sitting on steps and the other standing beside him—who wanted to go to Second and Laurel Streets. One man, the appellant, got into the front seat, and the other sat in the back. Mr. Poret said the appellant kept putting his hand under his shirt which was alarming to the driver, who suspected the man was reaching for a gun. Neither passenger said anything during the ride until Mr. Poret was turning into Third Street; then the man in the back seat put a gun in Poret's face and said "Give it up, all of it." Mr. Poret reached up and held the barrel of the gun with his right hand; meanwhile with his left hand he took his own gun and shot into the back seat. (Poret said he carries a gun on his seat when he is working). At that moment the appellant raised his hands toward Poret, who assuming he had a gun, shot him several times. The taxi went out of control during the gun fire coming to rest up on a curb and against a utility pole. The two passengers opened their doors and fled; one—the appellant— going toward the river, and the other going in the opposite direction. Moments later the police arrived, and shortly after that Poret was told that a wounded man had been found a few blocks away. When Poret first saw the man, he identified him as the man in the back seat, but then he realized he was mistaken, he testified, and he identified the wounded man as the man from the front seat to the officers on the crime scene. He said he was confused because the man in the front seat had on a light-colored shirt and the man in the back seat had on a multi-colored shirt while they were in the taxi; yet when he saw the man from the front seat after the police found him, he had on a multi-colored shirt. That man—the appellant—also had in his possession a light colored shirt. The police report taken by Officer Ballex recorded Mr. Poret's first impression only—that the appellant was the man in the back seat of the taxi.

Dr. Washington Brian of the surgical trauma team at Charity Hospital testified that he was working on July 14, 1994, when the appellant was treated for multiple gunshot wounds. Dr. Brian found at least three entry wounds producing injuries on his left shoulder blade, on his left flank, on his left axilla, and on his interior shoulder.

NOPD Officer Steven Lentz testified that he answered a call on an armed robbery about 10 p.m. to find Vincent Poret standing beside his taxicab; shortly thereafter the officer received a call that a wounded man had been found on Chippewa Street, just one block south of the accident site. Officer Lentz said that when the appellant was brought to the scene, he had on tan jeans and a multi-colored shirt. Lentz also stated that the man appeared to have two gunshot wounds to the left side of his upper body.

NOPD Officer Gene Ballex testified that he wrote the police report from information given him from police officers and the victim, Vincent Poret. Ballex explained that the shifts for the officers were changing and that because he was just coming on duty and the other officers were leaving, he was given information to write the police report even though he had not been there during the investigation. Officer Ballex said that he was told by Officer Lentz that Mr. Poret had named the appellant as the man in the back seat of the taxi. Ballex admitted that he could have misunderstood Officer Lentz or Lentz could have given him the wrong information. Officer Lentz was recalled to testify in rebuttal; he said that Mr. Poret had told him that the man captured in the armed robbery had been sitting in the front of the taxi. Lentz said that when he read the police report prior to his earlier testimony at trial, he realized the mistake in the report and informed the assistant district attorney. Lentz estimated that he told the assistant *79 district attorney about thirty minutes prior to trial.

A review of the record for errors patent reveals there are none.

The appellant first argues that the trial court erred in denying the request for a mistrial when it was found that the defense had been misled in discovery.

The defense admits that by waiving all pretrial evidentiary hearings it precluded discovery of the mistake in the police report prior to trial, and it also concedes that there was no wrongdoing on the part of the State in withholding information. In its brief the defense cites no statutory authority for its position that a thirty minute delay in receiving information concerning a mistake in the police report merits a mistrial.

Further, mistrial is a drastic remedy which should be declared when unnecessary prejudice results to the defendant. State v. Smith, 430 So.2d 31 (La.1983). The trial court has discretion to determine whether a fair trial is impossible, or whether an admonition is adequate to assure a fair trial when the alleged misconduct does not fit into the provisions for mandatory mistrial, and the ruling will not be disturbed on review absent an abuse of discretion. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).

Although the defense argues it did not know where the appellant was seated in the taxi until Vincent Poret testified, there is evidence in the opening statements that the defense was aware of a discrepancy in the police report. In her opening statement, the assistant district attorney summarized Vincent Poret's testimony as follows:

Now Mr. Poret will tell you....
* * * * * *
The first individual who got in the front passenger's seat was that man seated before you today, Vataggo Lewis. There was a second perpetrator. He got in the rear seat directly behind Mr. Poret.
* * * * * *
[T]he man in the backseat put a revolver against his face, demanding money.....
He's [Poret's] going to tell you that he reached over his shoulder and shot at that individual [rear passenger]. That the man in the passenger's seat, the defendant before you, he saw—and again, this is happening very quickly, he saw this man going for what he believed was a gun underneath his shirt.

In the defense's opening statement, the attorney responded to the facts he had heard:

And you're going to see what occurred is this man,

Vataggo, gets in the vehicle; Poret freaks out, Poret overreacts, a

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State v. Lewis, 662 So. 2d 77, 1995 WL 573798 (La. Ct. App. 1995).

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