State v. McGary

479 So. 2d 620, 1985 La. App. LEXIS 10185
Louisiana Court of Appeal·Decided November 19, 1985·No. No. 85-KA-0441·Published·Cited by 2 cases

Opinion

EDWARDS, Judge.

Defendant was convicted of second degree murder and simple robbery in connection with the death of Joseph Gonsoulin. The court sentenced him to life imprisonment on the murder conviction1 and to a concurrent two years at hard labor on the robbery conviction. Defendant appeals, urging five assignments of error.2

After receiving an anonymous tip during the afternoon of January 12, 1984, law enforcement officers located the body of an elderly man on the ground beside his automobile in a remote area of Tangipahoa Parish. Autopsy of the victim, later identified as Joseph Gonsoulin, revealed the cause of death as asphyxia due to manual strangulation. Law enforcement officers determined that the victim was last seen leaving a Hammond barber shop during the afternoon of January 10, 1984, and that he always carried a folded fifty dollar bill in his wallet for emergency purposes.

Suspicion focused on defendant when the proprietor of a store located within a short distance of the crime scene reported that defendant and a woman, both known to be residents of that rural area, had purchased alcoholic beverages with a folded fifty dollar bill during the afternoon of January 11, 1984. Defendant was taken into custody for questioning on January 13,1984. After giving law enforcement officers several oral and taped statements detailing his involvement in the murder of Joseph Gonsou-lin, defendant was charged with the instant offenses.

ASSIGNMENT OP ERROR NUMBER ONE

Defendant contends the trial court erred by allowing the prosecution to elicit factual details surrounding defendant’s prior conviction, thereby impermissibly introducing other crimes evidence without the appropriate procedural safeguards.

Defendant chose to take the stand in his own behalf. As the prosecutor sought to impeach defendant’s testimony by establishing that defendant had been convicted of simple kidnapping,3 defendant was allowed to testify without objection. Errors not complained of at the time of occurrence are waived. LSA-C.Cr.P. art. 841; State v. Bennett, 454 So.2d 1165, 1173 (La.App. 1st Cir.), cert. denied, 460 So.2d [622]*622604 (La.1984)4. Accordingly this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant assigns as error the overruling of his motions for mistrial made in response to prejudicial remarks of the prosecutor in closing argument. He points to three instances of such remarks.

First, although no expert psychological evidence had been offered, the prosecutor suggested that psychology experts might have been able to give reasons for defendant’s behavior. However, defendant’s objection to this remark was sustained, and defendant requested neither an admonition to disregard nor a mistrial. Hence he cannot complain on appeal of that alleged error. See State v. Miles, 402 So.2d 644, 648 (La.1981).

Second, the prosecutor commented on defendant’s inconsistent taped statements,5 suggesting that defendant endeavored to pin the crime on two of the State’s witnesses because “[h]e just didn’t want to take the rap.” The third instance occurred as the prosecutor was discussing corroborating evidence. The State had introduced into evidence a Cricket cigarette lighter taken from defendant when he was arrested, a Cricket lighter removed from the victim’s pocket, and the packaging for two Cricket lighters found in the victim’s automobile. The prosecutor speculated that the victim had purchased the package of two lighters and had put one in his pocket, and that defendant had taken the other when he killed him. In each instance the court sustained defendant’s objection and cautioned the prosecutor to stick to the evidence, but refused to grant a mistrial.

Closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” LSA-C.Cr.P. art. 774. The prosecutor’s evaluation of defendant’s attempt to involve others in the crime was argument on defendant’s credibility, which is permitted under article 774. The prosecutor’s theory of how defendant came into possession of the Cricket lighter did refer to the evidence, and in that context, his statement that defendant murdered the victim was based on the evidence, not on any personal knowledge of facts outside the record. Whether defendant did in fact commit the murder was the primary issue the jury had to decide.

Although we do not believe this argument was improper, improper argument is not ground for reversal unless it influenced the jury or contributed to the verdict. State v. Barrow, 410 So.2d 1070, 1075 (La.), cert. denied, 459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982). There is no indication that this was the case. Accordingly this assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

Defendant contends that the trial court should have granted a new trial because (1) there was insufficient evidence, and (2) the State failed to prove venue. Although sufficiency of the evidence is properly raised by motion for post-verdict judgment of acquittal, LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099, 1101 (La.App. 1st Cir.1985), we will nevertheless address defendant’s argument.

Measured by the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence was sufficient to convict defendant. View[623] ing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that the State proved the essential elements of the crime beyond a reasonable doubt. The State clearly established that a crime had been committed. The victim was an eighty-year-old retired accountant. His widow testified that he went to the barber shop on the afternoon of January 10, 1984, and never returned. She also stated that he always carried a folded fifty dollar bill in his wallet for emergencies. When the victim was discovered two days later, his pockets were turned inside out and the fifty dollar bill was missing. He had been beaten and strangled.

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State v. McGary, 479 So. 2d 620, 1985 La. App. LEXIS 10185 (La. Ct. App. 1985).

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