State v. Neidlinger

560 So. 2d 526, 1990 La. App. LEXIS 896, 1990 WL 47741
CourtLouisiana Court of Appeal
DecidedApril 10, 1990
DocketNo. KA 89 0783
StatusPublished
Cited by2 cases

This text of 560 So. 2d 526 (State v. Neidlinger) 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. Neidlinger, 560 So. 2d 526, 1990 La. App. LEXIS 896, 1990 WL 47741 (La. Ct. App. 1990).

Opinion

ALFORD, Judge.

The defendant, Dale Neidlinger, was charged by bill of information with unauthorized entry of a place of business, in violation of La.R.S. 14:62.4. He pled not guilty and, after trial by jury, was found guilty as charged. Subsequently, the prosecution filed a habitual offender bill of information; and, after a hearing, the defendant was adjudicated a third felony habitual offender and sentenced to serve six years at hard labor. He has appealed, alleging three assignments of error,1 as follows:

1. There was insufficient evidence to support the instant conviction.
2. The prosecutor improperly questioned a defense witness about the criminal record of the defendant’s brother.
3. The trial court erred in denying a defense motion for post-verdict judgment of acquittal.

FACTS

At approximately 1:30 a.m. on June 5, 1988, Pearl River Reserve Police Officer [527]*527Steven Ball was on routine patrol when he noticed a brown, 2-door, Ford LTD parked on the side of Riverside Drive next to Country Girl Seafood Restaurant. As he turned around and approached this vehicle from behind, he observed a subject throw a large object into the passenger side of the car. This subject then went around the front of the car, got in the driver’s side, and sped away, running the stop sign at the intersection of Riverside Drive and Louisiana Highway 41.

With flashing lights and siren, Officer Ball pursued the vehicle in a high-speed chase. In a nearby subdivision, at the intersection of Morgan Bluff Road and Ash-lin Drive, the subject failed to make a left turn, left the road, and struck a street sign and a tree. The subject then fled the scene of the accident by jumping a nearby fence and running away. As the subject emerged from the vehicle, Officer Ball was able to identify him as the defendant, Dale Neidlinger. Officer Ball did not attempt to pursue the defendant because he concluded that, having identified him, he knew where to find him later.

A subsequent registration check of the suspect vehicle revealed that it was owned by the defendant’s father, Hubert Neidlinger. Inside the vehicle were four sacks of crawfish, a pair of bolt cutters, and a red baseball cap. The sacks of crawfish had Country Girl Seafood Restaurant tags on them.

The Pearl River police contacted the owner of Country Girl Seafood Restaurant, Janet Daspit. Ms. Daspit discovered that the padlocks on the seafood cooler and a storage structure containing paper products had been cut and removed from the doors. Six sacks of crawfish and two sacks of oysters were missing from the seafood cooler, which was located behind the main building. Ms. Daspit followed a trail of crawfish behind the restaurant which led to one of the missing sacks of oysters. Later, the Pearl River Police returned the four sacks of crawfish found in the defendant’s car to Ms. Daspit. Two sacks of crawfish and one sack of oysters were not recovered.

The defense presented the alibi testimony of two witnesses, Lou Ann Luke and Joseph Blackledge. They testified that on Saturday, June 4, 1988, the defendant helped them clean up their mother’s property and install a new trailer. Their mother’s trailer had burned down a few days earlier. Ms. Luke testified that she was at her mother’s trailer until midnight, and when she left, the defendant was there drinking beer with her brothers and others.

Blackledge testified that he and the defendant remained at the trailer all night drinking beer with several other people. According to Blackledge, the defendant left the trailer at approximately 9:00 a.m. Sunday, June 5, when Blackledge’s mother gave the defendant a ride home.

The defendant’s father, Hubert Neidlinger, testified that there were two Ford LTDs at his home. He testified that he was the only person who drove the brown LTD and that his son, the defendant, drove the other, a blue LTD. According to Neidlinger, the brown LTD had been stolen from his home sometime between 10:00 p.m. on June 4, and 7:00 a.m. on June 5. He first reported the theft to the Pearl River Police that morning and called them back again that afternoon. When he called the Pearl River Police the second time, they informed him that the car had been in an accident and that they we^e looking for his son.

According to Neidlinger, the brown LTD had very bad brakes, a fact which his son knew. Neidlinger testified that, because of the condition of the brakes on the brown LTD, it would have been impossible to drive at high speed on the roads from the Country Girl Seafood Restaurant to the site of the accident. He stated that it would have been foolish for his son to take the brown LTD (with bad brakes) that night when he could have driven the blue LTD. He testified that he did not recognize the red baseball cap found in the brown LTD and that he informed the Pearl River Police that the defendant never wore a hat. The defendant did not testify at the trial.

[528]*528ASSIGNMENT OP ERROR NUMBER TWO

In this assignment of error, the defendant contends that the prosecutor improperly questioned a defense witness about the criminal record of the defendant’s brother. He contends that a mistrial should have been granted pursuant to La. C.Cr.P. art. 771 and that his conviction should be reversed because the trial court’s admonition to the jury was insufficient to cure the damage caused by the prosecutor’s prejudicial conduct.

During the cross-examination of the defendant’s father, the following exchange took place:

Q. Mr. Neidlinger, how many sons do you have?
A. Three.
Q. And what are their names?
A. Billy, Hubert and Dale.
Q. And Dale is the youngest; is that correct?
A. Yes.
Q. Where is Billy right now?
A. He’s at Angola.
Q. How long is he going to be there? A. I really don’t know.
Q. About forty-five years, isn’t it, Mr. Neidlinger?
A. You should know. You’re the one that put him there.
[DEFENSE COUNSEL]: All right. Your Honor, at this point I object to this line of questioning. It has no relevance to this case and I’m surprised that Mr. Knight is asking this question.
THE COURT: What’s the relevance? [PROSECUTOR]: I withdraw the question.
THE COURT: Disregard the question and disregard the answer.

Louisiana Code of Criminal Procedure Article 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

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Related

State v. Lockhart
629 So. 2d 1195 (Louisiana Court of Appeal, 1993)
State v. Baudoin
583 So. 2d 907 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
560 So. 2d 526, 1990 La. App. LEXIS 896, 1990 WL 47741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neidlinger-lactapp-1990.