State v. Mandosia

842 So. 2d 1252, 2003 WL 1824831
CourtLouisiana Court of Appeal
DecidedApril 9, 2003
Docket36,827-KA
StatusPublished
Cited by10 cases

This text of 842 So. 2d 1252 (State v. Mandosia) 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. Mandosia, 842 So. 2d 1252, 2003 WL 1824831 (La. Ct. App. 2003).

Opinion

842 So.2d 1252 (2003)

STATE of Louisiana, Appellee,
v.
Billy Oscar MANDOSIA, Appellant.

No. 36,827-KA.

Court of Appeal of Louisiana, Second Circuit.

April 9, 2003.

*1254 Louisiana Appellate Project, by J. Wilson Rambo, Paula Corley Marx, Lafayette, for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Donna Hall, J. Thomas Butler, Assistant District Attorneys, for Appellee.

Before WILLIAMS, PEATROSS & MOORE, JJ.

PEATROSS, J.

Defendant, Billy Oscar Mandosia, was charged with two counts of aggravated assault of a peace officer, in violation of La. R.S. 14:37.2. Defendant was tried by a jury and convicted as charged. Subsequently, the State filed an habitual offender bill of information charging Defendant as a second felony offender. The trial court found Defendant to be a second felony habitual offender and sentenced him to ten years at hard labor without the benefit of probation, parole or suspension of sentence. The trial court ordered this sentence to run concurrent with any other sentence Defendant is required to serve. Defendant now appeals his conviction and sentence. For the reasons stated herein, we affirm the conviction of Defendant, but we amend his sentence and, as amended, we affirm.

FACTS

On October 30, 2000, Shreveport police officers Thomas McCarthy and Paul Robinson were working an off-duty night job with the Shreveport Housing Authority ("Housing Authority") at Wilkinson Terrace Apartments. During the course of the officers' shift at the Housing Authority, the emergency equipment in their patrol car blew a fuse. The two officers took the car back to the police station and exchanged it for a different patrol car. On the way back to the Housing Authority, the officers tested the lights and sirens on the replacement patrol car to make sure the equipment was working properly; and, at that same time, both officers simultaneously noticed two males traveling on bicycles headed east on Texas Street. The officers observed that the two males increased their speed once the lights and sirens were activated on the patrol car.

Immediately after the officers observed the two males on bicycles, a vehicle came screeching into the middle of the intersection on Texas Street. A male, later identified as John Hardwick ("Hardwick"), jumped out of the vehicle and informed the officers that two assailants riding bicycles and wearing Halloween masks had just robbed him at the Hibernia Bank ATM machine at the intersection of Line Avenue and Jordan Street. Hardwick had followed the assailants as they rode their bicycles from Jordan Street to Texas Street.

*1255 Officers McCarthy and Robinson immediately began to pursue the two males on bicycles. As the officers approached the two males, they observed that one of them, later identified as Defendant, was pointing a silver object at them. Believing that this object was a gun and concerned about the imminent possibility of being shot, Officer McCarthy instructed Officer Robinson, who was driving, to run Defendant over with the patrol car. Officer Robinson then struck Defendant with the patrol car, running over him and his bicycle. The officers got out of the patrol car to apprehend Defendant, but he had already gotten up and had started running away from the scene.[1] Defendant was ultimately apprehended and a .357 six-shot blue metallic revolver was also recovered.

A jury trial commenced on September 10, 2001. After the prosecutor's opening statement, Defendant's attorney moved for a mistrial, arguing that the prosecutor had referred to the allegation of Defendant as a suspect in the armed robbery of Hardwick and that, since this allegation is inadmissible as evidence of other crimes under La. C.E. art. 404(B), the statement was prejudicial to Defendant. The trial judge denied Defendant's motion for a mistrial, finding that the State did not make reference to Defendant's committing the armed robbery, but only referred to Defendant as a person later identified as one of the individuals riding a bicycle. The trial resumed; and, on September 11, 2001, the jury found Defendant guilty as charged.

Since Defendant had a previous conviction for attempted manslaughter and was on parole at the time of the incident on October 30, 2000, the State filed an habitual offender bill of information charging Defendant as a second felony offender. The trial judge found Defendant to be a second felony habitual offender and sentencing was scheduled for January 24, 2002. On January 17, 2002, Defendant filed a motion for new trial, claiming that new evidence had been discovered since the trial which probably would have changed the verdict against him. This motion was subsequently denied by the trial judge who found that Defendant did not state in his motion with any degree of specificity the alleged new evidence and that Defendant's motion consisted of only "conclusory allegations."

At the sentencing hearing, Defendant moved for a post-verdict judgment of acquittal, arguing that the State failed to prove its case against Defendant beyond a reasonable doubt. The trial judge denied Defendant's motion, finding that the jury was justified in the verdict it returned and that there was sufficient evidence to support the conviction. After sentencing, Defendant filed two separate motions to reconsider his sentence, asserting that the sentence was excessive in that the trial judge failed to consider certain mitigating factors in the case, such as the lack of premeditation; that Defendant was under the influence of significant mental or emotional distress; and that there were no physical injuries to the police officers. Both motions to reconsider the sentence were denied by the trial judge. This appeal ensued.

On appeal, Defendant raises the following assignments of error (verbatim):

1. The Honorable Trial Court erred in denying Appellant's Motion for Mistrial;
2. The Honorable Trial Court erred in imposing upon Appellant an excessive sentence;
*1256 3. The Honorable Trial Court erred in denying Appellant's Motion to Reconsider Sentence;
4. The Honorable Trial Court failed to adequately comply with the requirements of L.S.A.-C.Cr.P. Art. 894.1 in fashioning Appellant's punishment by failing to adequately state for the Record those factors considered in sentencing, the factual basis for those factors considered, and by failing to give adequate consideration and appropriate weight to the presence of certain mitigating circumstances in Appellant's case; and
5. The Trial Court erred in denying Appellant parole eligibility in the imposition of the ten year hard labor sentence imposed in this case.

DISCUSSION

Motion for Mistrial

Defendant's motion for a mistrial is based on the prosecution's opening statement. Defendant contends that the prosecutor, in her opening statement, referred to Defendant as a robbery suspect. During opening statements, the prosecutor stated,

... they [the police officers] observed two black males on bicycles ride past them on Texas Street. And when they did the equipment test [on their patrol car], those two males sped up on those bicycles. Seconds later, the officers received reason to believe that these males were suspects of a robbery, and then they started a pursuit of the suspects on the bicycles.

Defendant argues that a mistrial is warranted under La.C.Cr.P. art.

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Bluebook (online)
842 So. 2d 1252, 2003 WL 1824831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mandosia-lactapp-2003.