State v. Milto

751 So. 2d 271, 1999 WL 1006429
CourtLouisiana Court of Appeal
DecidedNovember 5, 1999
Docket99 KA 0217
StatusPublished
Cited by5 cases

This text of 751 So. 2d 271 (State v. Milto) 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. Milto, 751 So. 2d 271, 1999 WL 1006429 (La. Ct. App. 1999).

Opinion

751 So.2d 271 (1999)

STATE of Louisiana
v.
Jason Louis MILTO.

No. 99 KA 0217.

Court of Appeal of Louisiana, First Circuit.

November 5, 1999.
Rehearing Denied December 30, 1999.

*273 Walter P. Reed, Office of District Attorney, Covington, LA, for State of Louisiana.

Dorothy A. Pendergast, Special Appeals Counsel, Metairie, LA, Robert Glass, Glass & Reed, New Orleans, LA, for defendant-appellant Jason Louis Milto.

Before: SHORTESS, PARRO, and KUHN, JJ.

PARRO, J.

The defendant, Jason Louis Milto, was charged by bill of information with possession of a firearm by a convicted felon in violation of Louisiana Revised Statutes 14:95.1. After trial by jury, he was found guilty as charged. He was sentenced to serve ten years of imprisonment at hard labor, to run consecutively to his sentence for his parole violation. The defendant has appealed, urging nine assignments of error. Since only assignments of error numbers 3, 5, and 9 are briefed, the remaining assignments of error are considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4.

FACTS

On August 13, 1997, the defendant and Gregory Mitchell, his friend of approximately ten years, went out together for the evening. The defendant drove his own car, and Mitchell rode in the passenger seat. At approximately 2:00 a.m., they were stopped by Slidell police officer Kevin O'Neill, because the temporary license plate on the defendant's vehicle was not clearly visible. Mitchell testified that, at the time of the stop, the defendant told him to take his (defendant's) gun out of the glove compartment while he got out of the car to talk to the police officer. Mitchell complied and put the gun under the seat. Officer O'Neill testified he saw Mitchell's movements in the car and called for backup. He ordered Mitchell out of the car and saw the gun sticking out from under the seat. At that point, he did a pat-down search for weapons and found a small amount of marijuana and a pipe in Mitchell's pocket. The officer also found a box of bullets for the gun in the glove compartment. At the scene, both men denied any knowledge of the gun. Mitchell was taken into custody. The defendant was cited with a summons for the license plate, given a field sobriety test, and released.

Officer O'Neill testified that when they got to the police station, Mitchell indicated that the gun belonged to him. Mitchell was charged only with possession of marijuana. He testified he told the police officer that the gun was his because he was concerned about getting the defendant into trouble. Mitchell was aware that his friend had a prior felony conviction. He testified that after talking to the lawyer he obtained to represent him on the marijuana charge, he went to the police to tell the truth about the ownership of the gun. He contacted Officer O'Neill, who advised him to come to the station to make a written statement.

On August 24, 1997, he went to the police station. Oscar Patrick, who worked with Mitchell at Kmart, accompanied him. Patrick also gave a written statement to police that evening. He stated he was familiar with the defendant, because the defendant had come to the store on a number of occasions to visit Mitchell. Patrick indicated that the defendant came to the store to visit Mitchell one night and discovered that he was on vacation. On that occasion, the defendant told Patrick that he had a gun and showed the gun to *274 Patrick. Patrick said the defendant purchased bullets for the gun at Kmart that night. He said he knew the defendant purchased the bullets because it was his job to check the bags of customers when they exited the store through the garden center where he worked.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends the trial court erred in admitting, over defense objection, a prior statement by one of the state's witnesses. Patrick testified at trial that the defendant had shown him the gun in question on an occasion before the stop of the defendant and Mitchell. Defense counsel, during cross-examination, attempted to impeach Patrick by pointing out an alleged inconsistency in his original statement to the police, as well as by attacking his credibility on the basis that he had some bias or motive to lie. Counsel implied the witness would lie for Mitchell, due to the fact that he worked with Mitchell at Kmart and allegedly knew that Mitchell might have problems with his job if he got into trouble involving the weapon. Defense counsel also insinuated that, because Mitchell was an assistant manager at the store, Patrick might feel pressure to protect him in order to keep his (Patrick's) job.

Louisiana Code of Evidence article 801(D)(1) states that a prior statement of a witness is not hearsay if:

[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: ... (b) [c]onsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper ... motive.

Former Louisiana Revised Statutes 15:497 contained additional language that "it is proper to show that the witness made a similar statement at a time when the supposed motive did not exist and the effect of such statement could not be foreseen." The Louisiana Code of Evidence, effective in 1989, is silent as to that requirement. The official comments to that article, while not authority, are helpful in determining whether the omission of that language effects a change in the admissibility of the type of statement complained of here. The comments indicate this section of the code is based on Federal Rule of Evidence 801(d)(1)(B) and "the requirement that the statement [be] made at an unsuspicious time has been eliminated. But see Article 403."

In a leading treatise on Louisiana evidence law, the authors' notes indicate that the analysis as to the admissibility of a statement under Article 801(D)(1)(b) of the Louisiana Code of Evidence would necessitate a determination of whether the statement was made at a time when the alleged bias or motive to lie did not exist, in order for it to satisfy the relevancy requirements of Articles 401 through 403.[1]See George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law 464 (1999). The notes indicate that Article 801(D)(1)(b) "does not deal with relevancy.... Statements consistent with testimony made subsequent to the ... circumstances suggesting a motive to fabricate generally have insufficient relevancy to be admissible." Id. Again, the authors' notes are not authority; however, because this issue of Louisiana evidence law has not been addressed by this circuit or by the Louisiana *275 Supreme Court since the adoption of the Code of Evidence, the authors' notes are persuasive as to the proper analysis to be used when examining the admissibility of a statement introduced under Article 801(D)(1)(b).[2]

The defendant contends that Patrick's out-of-court statement was inadmissible because defense counsel merely attempted to impeach the witness with an inconsistency in a portion of that statement. On the contrary, defense counsel asked numerous questions on cross-examination designed to show that the witness had a motive to lie for Mitchell and thus attacked Patrick's credibility, both on the basis of inconsistency and improper motive.

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Cite This Page — Counsel Stack

Bluebook (online)
751 So. 2d 271, 1999 WL 1006429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-milto-lactapp-1999.