State v. Pollard

585 So. 2d 634, 1991 La. App. LEXIS 2317, 1991 WL 165214
CourtLouisiana Court of Appeal
DecidedAugust 29, 1991
DocketNo. 88-KA-1283
StatusPublished
Cited by2 cases

This text of 585 So. 2d 634 (State v. Pollard) 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. Pollard, 585 So. 2d 634, 1991 La. App. LEXIS 2317, 1991 WL 165214 (La. Ct. App. 1991).

Opinion

SCHOTT, Chief Judge.

Defendant Samuel Pollard was convicted of armed robbery (R.S. 14:64) and attempted second degree murder (R.S. 14:27 and 14:30.1) and was sentenced to serve ninety-nine years at hard labor and fifty years at hard labor, respectively, sentences to run consecutively. Defendant moved for a new trial which was denied.

On the evening of July 22, 1986, defendant and Eric Boudreaux were in the Glass House Lounge when defendant asked Bou-dreaux to join him outside to talk about Janice Celestine, the defendant’s girlfriend and Boudreaux’s friend. Boudreaux joined defendant and Celestine outside and a fight ensued, during which defendant stabbed Boudreaux above the left arm pit. As Boudreaux tried to run away, he fell, and, as he lay on the ground, the defendant stabbed him in the right arm and ripped three gold chains off of his neck.

At trial the defendant called only Janice Celestine, who testified: She had been at the defendant’s mother’s house when they were informed that the defendant might be in trouble, and she left the house with the defendant’s sister and niece. The fight occurred when defendant became upset because she and Boudreaux had smoked “clickems.” Although she witnessed the fight she did not see any weapons and Boudreaux had not been wearing any jewelry. Her testimony that Boudreaux had not been wearing any jewelry was disputed by prosecution witness Emmett Boudreaux, the victim’s nephew, who testified that gold chains his uncle was wearing earlier in the evening were missing after the attack.

Defendant’s first assignment of error is as follows:

[636]*636The trial court erred in denying a mistrial when the district attorney told the jury that there was evidence he would like to introduce, but could not under the law, and in closing argument when the prosecution and trial court combined to suggest that evidence of the defendant’s drug habits had been excluded.

Defendant claims that the trial court erred by failing to declare a mistrial because the prosecutor referred to another crime with the following statement during voir dire:

I cannot tell you why it is that it has been a year and a half since the crime happened and we are in court. It really doesn’t have anything to do with you but the law prohibits me from telling you why....

A mistrial shall be ordered when the district attorney ... directly or indirectly refers to another crime committed or alleged to have been committed by the defendant, as to which evidence is not admissible. C.Cr.P. Art. 770. In this instance, the prosecutor’s statement does not make a direct or indirect reference to another crime committed by defendant. Furthermore, this statement does not invite the jury to speculate on other negative behavior exhibited by the defendant and is not prejudicial.

Defendant also contends that the prosecutor made inadmissible and prejudicial statements during defense counsel’s closing argument. During re-direct examination defense counsel had asked Celestine if defendant had ever used “Clickems” and Celestine responded negatively. During closing argument, defense argued:

Well, he certainly can remember whether or not he was smoking clickems with Janice Celestine a few days before which is why her boyfriend was upset. You ever heard anybody come in here and say that Samuel Pollard was smoking click-ems. Janice Celestine says he didn’t use the stuff. You haven’t heard them call any rebuttal witnesses to come in and say oh, yes, I know Samuel Pollard. Yes, he was smoking clickems all the time.
State: That’s because it’s inadmissible and I object to that.
Court: Alright. Alright, the objection is sustained.
Defense Counsel: Excuse me, Your Hon- or?
Court: The objection’s sustained. Defense: Well, I am going to move for a mistrial based upon the D.A.’s comment saying it’s inadmissible, it’s not inadmissible.
Court: Alright, that’s for the court to decide and the court has ruled it is inadmissible.

Since the defense produced evidence that the defendant did not use drugs, rebuttal evidence by the state would have been admissible. Consequently the position taken by the prosecutor and the trial judge that such evidence was inadmissible was wrong. Defendant asserts that the state had no evidence that he used drugs but by means of the ploy that such evidence would be inadmissible the state was able to provide the jury with a clear insinuation that he did use drugs. Defendant also asserts that this maneuver by the state was reinforced by the trial judge and consequently the idea that the defendant used drugs, planted in the minds of the jurors by the state, was expanded by the judge, all to defendant’s prejudice.

We fail to see how this operated to the prejudice of the defendant. The evidence was uncontradicted that Boudreaux was cut in a fight with defendant. Janice Cel-estine herself acknowledged that there was a fight. The only items she added were that 1) she didn’t see a knife; 2) Boudreaux wasn’t wearing jewelry; and 3) defendant started the fight because she and Bou-dreaux were using drugs. Assuming that the jury was wrongfully led to believe that defendant used drugs this had absolutely no bearing on the first and second points made by Celestine. As to the third point the juror’s belief that defendant used drugs might have led them to question Celestine’s testimony that he was righteously indignant over Boudreaux’s using them but this has no relevancy to the question of defendant’s guilt of attempted mur[637]*637der of Boudreaux by cutting him with a knife and robbery of his jewelry. Indeed, the suggestion that he used drugs may have operated to defendant’s advantage on the issue of specific intent. We conclude that these errors were harmless and this assignment is meritless.

By his second assignment of error, defendant contends that his conviction should be reversed because the jury charge defining “reasonable doubt” is unconstitutional under Cage v. Louisiana, — U.S. -, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). At the time the charge was given, defense failed to make a contemporaneous objection, thus precluding consideration of this issue on appeal. Application of the plain error exception is also precluded. State v. Dobson, 578 So.2d 533 (La.App. 4th Cir. 1991). This assignment is without merit.

By his third assignment of error, defendant claims that the trial court erred in denying his motion for new trial based upon ineffectiveness of trial counsel. A successful ineffective assistance of counsel claim requires proof that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh. den. 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

First, defendant argues that counsel was ineffective because he failed to impeach the victim’s testimony that he had never used PCP by introducing medical reports indicating that he had abused alcohol and used marijuana. Since these records had no probative value as to the crimes charged and did not serve to contradict his statement that he never used PCP they were inadmissible.

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Related

State v. Salone
648 So. 2d 494 (Louisiana Court of Appeal, 1994)
State v. Pollard
588 So. 2d 1122 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
585 So. 2d 634, 1991 La. App. LEXIS 2317, 1991 WL 165214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pollard-lactapp-1991.