State v. Moss

488 So. 2d 231, 1986 La. App. LEXIS 6964
CourtLouisiana Court of Appeal
DecidedMay 14, 1986
DocketNo. CR85-1061
StatusPublished

This text of 488 So. 2d 231 (State v. Moss) 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. Moss, 488 So. 2d 231, 1986 La. App. LEXIS 6964 (La. Ct. App. 1986).

Opinion

GUIDRY, Judge.

The defendant, Creighton Timothy Moss, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. The defendant was arraigned and pleaded not guilty. The defendant was tried before a twelve person jury and found guilty by an 11 to 1 vote. On September 9,1985, the defendant was sentenced to serve forty-five (45) years at hard labor without benefit of parole, probation or suspension of sentence. Defendant perfected this appeal from his conviction and sentence and urges three assignments of error.

FACTS

Theresa Green, a cashier at . the Sigmor Shamrock Service Station at the corner of Admiral Doyle and Bank streets in New Iberia, testified that on January 12, 1985, between 10:00 p.m. and 10:30 p.m. she was robbed at gunpoint. Miss Green testified that at first, the defendant entered, purchased a can of beer and then walked out. Two or three minutes later, after other customers left, the defendant returned and purchased another can of beer. When Miss Green attempted to put the money in the register, the defendant pulled a gun and ordered her to give him what she had in the drawer. Miss Green then took the money out of the register, defendant took the money from her and left the store.

ASSIGNMENT OF ERROR NO. 1

The defendant first contends that the trial court erred in denying his motion for a mistrial based upon an allegedly prejudicial comment made by a prospective juror, a Miss Thomas. Specifically, defendant contends that on voir dire, Miss Thomas stated that she was involved in a hit and run accident with a “Creig Moss” and that this person had called and threatened her. The trial record reflects the following:

“Q. Do you know any of the people involved in this case, whose names we’ve mentioned earlier?
A. I’ve heard of one of the witnesses called in.
Q. Who was that?
A. It was one of the Mosses. I don’t remember the first name. I was involved in a traffic accident with Creig Moss. A hit and run. And he called my house several times and threatened me BY MR. COMEAUX: Your Honor, may we approach the bench?”

After Miss Thomas made this remark, the trial judge questioned her in chambers and the defendant moved for a mistrial in [233]*233accordance with La.C.Cr.P. art. 775, which states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

The trial judge denied defendant’s motion for a mistrial. After returning to the courtroom, the trial judge not only gave a general admonition to the jury, but also asked each individual juror whether the testimony of Miss Thomas would have any effect on them. The prospective jurors indicated that Miss Thomas’ statement would not influence their decision. The trial judge also told the jury that he had checked the defendant’s back record and could find no indication of a hit and run charge.

In State v. Smith, 433 So.2d 688 (La. 1983), our Supreme Court stated:

The determination as to whether a mistrial should be granted under this provision [La.C.Cr.P. art. 775] is within the sound discretion of the trial judge, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Alexander, 351 So2d 505 (La.1977); State v. Haynes, 339 So2d 328 (La.1976). The motion should be granted only where the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Cushenberry, 407 So2d 700 (La.1981); State v. Goods, 403 So2d 1205 (La.1981); State v. Sepulvado, 359 So2d 137 (La.1978)....”

In State v. Brown, 434 So.2d 1166 (La. App. 1st Cir.1983), a mistrial was requested when a prospective juror made a statement in french which translated, “[wjhat tree are we going to hang him on?” Subsequently, the juror was chastised by the trial judge and excused for cause and the trial judge admonished the jury to disregard the remark. The reviewing court found that the defendant failed to show that the remark affected the other jurors or that defendant was prejudiced. See also State v. Monroe, 397 So.2d 1258 (La.1981).

The defendant argues that this court’s decision in State v. Roman, 473 So.2d 897 (La.App. 3rd Cir.1985), mandates a reversal in this case. In Roman, after the first day of trial, five members of the jury read a newspaper article concerning the defendant’s prior convictions. The trial judge, who had failed to instruct the jury not to read, listen to, or watch any news account regarding the defendant, admonished the jurors to disregard what they had read in the newspaper and to judge the defendant solely on the evidence. Reversing Roman’s conviction, this court found that the references to the defendant’s previous convictions were too prejudicial to be overcome by a mere admonishment and that there was a substantial possibility that the jurors who had this knowledge were unable to be impartial, thereby denying the defendant a fair trial.

Defendant’s reliance upon Roman, supra, is misplaced. The prejudicial news article read by the jurors concerned the defendant’s prior criminal history, which was apparently extensive. The defendant chose not to take the witness stand specifically to avoid having his prior convictions revealed to the jury.

In the cáse sub judice, the trial judge gave a thorough admonition to the jury venire, emphasizing that Miss Thomas did not know if the defendant was the same Creig Moss as the one in the accident with her; the threats she had alluded to were not physical or violent threats; and, the defendant had not been charged with a hit and run accident. As in Monroe, supra, those jurors who were eventually enpa-nelled swore to accept the law as given them by the trial judge. Thus, we do not find that there has been any showing that Miss Thomas’ statement affected the other prospective jurors or that defendant was prejudiced. Therefore, the trial judge did not abuse his discretion in denying the mo[234]*234tion for mistrial. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant next contends that the jury erred because the evidence presented was not sufficient to sustain his conviction for the crime of armed robbery.

The standard of review as to the sufficiency of the evidence is whether viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded that the State proved beyond a reasonable doubt each element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 650 (1979); State v. Captville, 448 So.2d 676 (La.1984).

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Roman
473 So. 2d 897 (Louisiana Court of Appeal, 1985)
State v. Captville
448 So. 2d 676 (Supreme Court of Louisiana, 1984)
State v. Brown
434 So. 2d 1166 (Louisiana Court of Appeal, 1983)
State v. Sepulvado
367 So. 2d 762 (Supreme Court of Louisiana, 1979)
State v. Monroe
397 So. 2d 1258 (Supreme Court of Louisiana, 1981)
State v. Smith
433 So. 2d 688 (Supreme Court of Louisiana, 1983)
State v. Sensley
460 So. 2d 692 (Louisiana Court of Appeal, 1984)
State v. Walker
15 So. 2d 874 (Supreme Court of Louisiana, 1943)

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Bluebook (online)
488 So. 2d 231, 1986 La. App. LEXIS 6964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moss-lactapp-1986.