State v. Martin

377 So. 2d 259
Supreme Court of Louisiana·Decided November 1, 1979·No. 63303·Published·Cited by 26 cases

Opinion

377 So.2d 259 (1979)

STATE of Louisiana
v.
Jessie Reed MARTIN.

No. 63303.

Supreme Court of Louisiana.

May 21, 1979.
On Rehearing November 1, 1979.

Lewis O. Unglesby, Baton Rouge, for defendant-appellant on appeal only.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for the State.

SUMMERS, Chief Justice.

Defendant Jessie Reed Martin and Wanda Womack were charged by bill of information with forgery on October 23, 1976 of a check on the account of Mr. or Mrs. Tom H. Cavin, a violation of Article 72 of the *260 Criminal Code. Womack pled guilty after trial before a jury of six; Martin was found guilty and was subsequently convicted as a second felony offender and sentenced to imprisonment for five years. La.Rev.Stat. 15:529.1.

Defendant raised six assignments of error to the conduct of the trial. All are argued on this appeal.

Evidence at the trial showed that Martin stole a purse belonging to Mrs. Tom Cavin from her unoccupied car. Later Martin and Womack forged one of Mrs. Cavin's checks at the Woolco Department Store in Baton Rouge to buy a stereo. By having the Woolco clerk who made the sale examine photographs, police were able to identify Martin and Womack as the perpetrators of the crime.

Assignments 1 and 2: Evidence of the burglary of the purse from an automobile the day before the forgery was admitted by the trial judge as part of the res gestae; and evidence of that burglary did not require a "Prieur" notice according to the trial judge's ruling. The defense assigns these rulings as error.

Obtaining the purse from the automobile was properly considered relevant to this prosecution as part of the inception of a continuing scheme to defraud Mrs. Cavin by forging her check. In considering the doctrine of res gestae set forth in Sections 447 and 448 of Title 15 of the Revised Statutes, this Court said in State v. Curry, 263 La. 997, 1006-1007, 270 So.2d 484, 487 (1972):

"Consequently, acts and declarations have been brought within the doctrine if they are connected with, and grow out of, the act or transaction in such a way as to form one continuous transaction, provided they, in some way illustrate, elucidate, qualify or characterize the act, and in a legal sense are a part of it. As a result, incidents offered as res gestae may be separated from the act by a lapse of time more or less appreciable, provided they grow out of and are in a legal sense immediately connected with the litigated act."

Because the burglary of the purse and checkbook from the automobile was part of a continuing scheme to forge Mrs. Cavin's check, the two incidents were not separate and distinct events. No "Prieur" notice was therefore necessary to advise Martin that evidence would be introduced relating to the burglary. Cf. State v. Mitchell, 344 So.2d 1026 (La.1977).

If prejudice is to be considered, and it should be, defendant cannot realistically claim that he was unaware and surprised by the introduction of evidence of the burglary of the purse. Indeed, it is clear from the transcript that he was well aware of the burglary, because his objection indicates that he anticipated the evidence to that effect before the questioning or any answer on the subject.

These assignments lack merit.

Assignment 3: Defendant argues that evidence of physical threats made by defendant to Wanda Womack were irrelevant, and the trial court should not have admitted evidence to that effect.

Womack, rather than defendant, actually forged the check. Threats by defendant were therefore relevant to establish his participation and involvement in the crime, and the testimony that Womack wrote the check at defendant's command tended to show that he was concerned in the commission of the crime and as such was a principal. La.Rev.Stat. 14:24.

Assignment 4: While being questioned by the prosecutor Wanda Womack testified as follows:

"Q. You said you didn't have a job. Is that right?
A. Yes.
Q. And you said that you were taking drugs all this time, all these drugs that Mr. Calmes was talking about? You have to answer.
A. Yes.
Q. How could you afford all those drugs without any money? I mean, were you buying them or what?
A. No.
Q. Where were you getting them?

*261 A. Jessie was buying them."

Defense counsel objected, arguing that this testimony was evidence of other crimes, inadmissible under the facts of this case. He did not, however, ask for a mistrial but consented to an admonition by the judge to the jury. No further testimony of this character was elicited from the witness. The trial judge found the testimony to be relevant to the relationship between the parties and probative of defendant's dominance over the witness at the time of the offense.

There is no merit to this assignment.

Assignment 5: While Lt. Roland C. Knight, a sheriff's deputy, was testifying about the execution of a search warrant and defendant's arrest, this colloquy occurred:

"Q. Okay. Now would you tell the jury please how you happened to go about making this arrest? Where did it take place and who was present?
A. Cpl. J. Thompson and I executed a search warrant in Livingston Parish at a trailer park, I forget the trailer number, to seize several items that came out of different burglaries in the Baton Rouge area.
Q. Who was ...
Mr. Calmer [defense counsel]: I object again, your Honor."

After the jury was excused defense counsel objected and moved for a mistrial, contending the quoted testimony was evidence of another crime. The testimony does not implicate the defendant except, perhaps, by a vague inference. Moreover, a police officer is not an official within the meaning of Article 770 of the Code of Criminal Procedure which requires a mistrial when the judge, district attorney, or a court official refers to other crimes committed by defendant. State v. Boyd, 359 So.2d 931 (La.1978). Nothing about this interrogation supports an argument that the witness' remark was intentionally solicited by the prosecutor to show other crimes committed by the defendant.

This assignment is therefore without merit.

Assignment 6: On redirect examination, the prosecutor asked Wanda Womack how she came to live with the defendant. She testified that while she was staying with people in Denham Springs after her husband was arrested, the defendant told her that if she got the minutes he could look at them and tell her if she could file a writ to get her husband out. The prosecutor then asked: "Is Jessie a lawyer?"; to which the witness replied, "No, but usually people that's been in the penitentiary four times know what to look for on those papers. And I didn't have the money to go to a lawyer."

At the time of the remark, no objection was lodged by the defense. The next day, when the trial resumed, defense counsel objected, saying he did not hear the remark when originally uttered.

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State v. Martin, 377 So. 2d 259 (La. 1979).

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