State v. Mitchell

606 So. 2d 17, 1992 La. App. LEXIS 2766, 1992 WL 236234
Louisiana Court of Appeal·Decided September 16, 1992·No. No. 92-KA-259·Published·Cited by 2 cases

Opinion

CANNELLA, Judge.

Defendant, Herbert Mitchell, appeals from his convictions, two counts of distribution of cocaine in violation of La.R.S. 40:967(A)(1), and sentences, twelve years at hard labor on each count, to run consecutively. For the reasons which follow, we affirm the convictions and sentences.

On May 12, 1989, Officer Anthony Akins, working undercover, first met with Detective Dale Roussel, his supervisor, then proceeded to a lounge in Vacherie, St. James [19] Parish. Akins parked his vehicle, was approached by the defendant and engaged in general conversation. The subject of drugs came up and Akins said that he was looking for a large quantity of cocaine. The defendant said that he had three “25 cent packs1’, but he could get more later. The defendant entered a vehicle, then produced three clear plastic bags containing a white powder substance. Akins paid $75 for the three bags. Akins and the defendant then resumed their conversation.

At approximately 1:30 a.m., Akins again met with Detective Roussel at a prearranged location and turned over the three bags. She put the evidence in an envelope, sealed it, and brought it to the evidence locker. Roussel later brought the evidence to the Louisiana State Police Crime Lab where scientific analysis of the substance was performed. The result of the analysis was positive for the presence of cocaine.

Akins saw the defendant the next two days at Grant’s Lounge in Vacherie. On these occasions, Akins only spoke with him.

Between 7:00 and 7:30 p.m. on May 17, 1989, Akins again saw the defendant at Grant’s Lounge. The defendant approached Akins and began talking about drugs. He told Akins that he had more “25 cent packs.” They went outside, sat in Akins’ vehicle and Akins purchased one pack from the defendant for $25. Later that night, Akins met with Detective Rous-sel and turned over the evidence. It was also brought to the Louisiana State Police Crime Lab, analyzed and found positive for the presence of cocaine.

On May 9, 1990, Akins was in the courthouse with detectives Roussel and Werner on an unrelated case, when he saw the defendant. Akins asked Detective Roussel if the defendant had ever been arrested for the previous offenses. She replied that he had not been arrested. Detective Werner approached the defendant, advised him that two warrants were outstanding for his arrest for distribution of cocaine and asked him to accompany him. Initially the defendant denied that he was Herbert Mitchell and argued that he did not sell cocaine to anyone. When they reached the booking room, the defendant admitted that he was Herbert Mitchell.

In the trial by jury, the defendant presented several alibi witnesses. John Smith, his brother, and Mark Gibson, a friend, testified that on May 12, 1989, they got off of work early in Vacherie, rode to New Orleans to see the defendant and were continually in the presence of the defendant in New Orleans until late in the evening. They remember the date because it was Mother’s Day weekend and they went shopping. They also testified that they went to the defendant’s house in New Orleans on May 17, 1989 to attend an anniversary party for the defendant and his girlfriend, Gilda Simmons. They arrived in New Orleans a little after 7:00 p.m. and stayed at the party until approximately 12:30 to 1:00 a.m. when they returned to Vacherie. They were in the presence of the defendant, continually, during this visit. Their testimony was corroborated by Gail Favorite and Hazel Rodriguez, who accompanied them to the party.

Gilda Simmons, the defendant’s former girlfriend, testified that she and the defendant had an anniversary party on May 17, 1989. She also testified that the defendant was with her on both May 12 and May 17, 1989, and that he did not go to Vacherie.

After hearing all the evidence, the jury returned a verdict of guilty, as charged, on both counts. The trial court sentenced the defendant to twelve years at hard labor, on each count, to run consecutively.

The defendant brought this appeal arguing four assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE:

The defendant contends that the trial court erred by allowing the prosecutor to make prejudicial remarks to the jury. In the prosecutor’s opening statement, he said, “as was told to you earlier a grand [20] jury, a group of individuals such as yourself, indicted Herbert Mitchell.” The defendant argues that this comment suggested to the jury that the defendant was probably guilty of the offenses because the grand jury, composed of persons like themselves, had indicted him.

Defense counsel did not object to the above remarks. According to La.C.Cr.P. art. 841 A, “an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” It has been held that alleged errors in remarks made by the prosecutor during opening statements are not preserved for appellate review, where defendant failed to object to remarks at trial. State v. Sosa, 328 So.2d 889 (La.1976); State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sepcick, 473 So.2d 380 (La.App. 5th Cir.1985), appeal after remand, 485 So.2d 559 (La.App. 5th Cir.1986).

Furthermore, considering the record as a whole, it does not appear that the defendant was prejudiced by the remarks. The jury had been informed, by the clerk’s reading of the indictment, that the defendant was charged by the grand jury with two counts of distribution of cocaine. And, more importantly, the trial judge, in instructing the jury, stated:

An indictment, which is what you heard the clerk read to you immediately prior to the opening statements, is nothing more than a written formal accusation against a defendant charging him with the crime. You are not to consider the indictment as evidence against the defendant. The mere filing of an indictment creates no inference whatsoever that the defendant is guilty.

Therefore, we find the defendant’s contention, that he was prejudiced by remarks in the opening statement of the prosecutor to lack merit.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that the trial court erred by allowing a prosecution witness to give hearsay testimony. Officer Dale Roussel, explained why the evidence envelope had the name “Herbert Smith” on it, with “Smith” scratched out and “Martin” written above. She explained that when Akins gave her the evidence in this case “he thought that Herbert’s last name was Smith.” Defense counsel objected. The witness further explained that the name of the defendant’s brother was Smith and this was the cause of the error in the defendant’s last name. Defense counsel objected again and moved for a mistrial, which was denied. The defendant argues that this was impermissible hearsay.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Mitchell, 606 So. 2d 17, 1992 La. App. LEXIS 2766, 1992 WL 236234 (La. Ct. App. 1992).

606 So. 2d 17 (State v. Mitchell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Johnson
750 So. 2d 398 (Louisiana Court of Appeal, 2000)
State v. Pendelton
696 So. 2d 144 (Louisiana Court of Appeal, 1997)