State v. Rodas

202 So. 3d 518, 15 La.App. 5 Cir. 792, 2016 La. App. LEXIS 1727
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2016
DocketNO. 15-KA-792
StatusPublished
Cited by3 cases

This text of 202 So. 3d 518 (State v. Rodas) 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. Rodas, 202 So. 3d 518, 15 La.App. 5 Cir. 792, 2016 La. App. LEXIS 1727 (La. Ct. App. 2016).

Opinion

WINDHORST, J.

Defendant, Brian Rodas, appeals his convictions and sentences for armed robbery in violation of La. R.S. 14:64 (count one); possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count two); and attempted simple escape in violation of La. R.S. 14:110 and La. R.S. 14:27 (count three).1 For the reasons that follow, we affirm defendant’s convictions and sentences and remand for correction of the commitment.

FACTS

On October 13, 2014, Karlene Dealune, an elderly, retired widow, was at her home at 4053 Deerpark Drive in Harvey, when she heard a knock on the door. Thinking it was her daughter, she opened the door and saw a young man, later identified as the juvenile co-defendant, L.L.2 The young man, L.L., told her that his car had broken down and asked if he could call his mother. Ms. Dealune allowed him to come inside because she was kindhearted and would have wanted someone to help her grandson if he was in the same situation. Once inside, the young man demanded her money. She told him that she did not have any money, but he picked up her purse and told her to give him her money. Ms. Deal-une gave him $25.00 and the young man pulled out a gun, aimed it at her, and told her that he wanted more money.

As L.L. was pointing the gun at Ms. Dealune, a heavyset man, who was wearing a scarf/mask over the lower part of his face and a hat, later identified as defendant, walked inside her house and went down the hallway. The young man with the gun demanded Ms. Dealune’s debit and credit cards, but she refused. He then told her that if she did not give him her debit card PIN number, he would kill her. Defendant told L.L. not to kill Ms. Dealune, and carried two flat screen televisions and a computer out the front door. Ms. Deal-une ultimately gave L.L. her debit card PIN number,

L.L. subsequently demanded that Ms. Dealune give him the rings on her fingers. She told L.L. that she could not get them off, and he told her that she had better get them off, and made her run her fingers under water until he could pull them off. L.L. and defendant then took Ms. Deal-une’s purse3 and left in a beige colored car. Ms. Dealune called 9-1-1 to report the robbery. She was later notified by her bank that the robbers used her debit and/or credit cards at three ATM machines and two Game Stop stores. Defendant and L.L. withdrew $200.00 from each ATM machine and bought a PlayStation 4 (PS4), warranty, and accessories at one Game Stop and attempted to purchase a cell phone at the other Game Stop, where [522]*522Ms. Dealune’s card was declined. At trial, Ms. Dealune identified a photograph of defendant at the Game Stop,4 as the heavy set man who robbed her, and identified defendant in the court room as one of the perpetrators.

In his first counseled assignment of error, defendant contends the trial judge erred by denying defense counsel’s motion for mistrial after the prosecutor made improper comments regarding possible other crimes evidence during cross-examination of defendant. He argues the prosecutor’s comments inferred that he was a serial armed robber in violation of La. C.Cr.P. art. 770(2) because the prosecutor’s comments indirectly insinuated that another crime had been committed by him which was not admissible. Defendant contends there was no evidence in the record that he had previously robbed anyone. Thus, declaration of a mistrial should have been mandatory and the trial court’s admonition to the jury was not sufficient to prevent a mistrial. Defendant further argues that this error was not hamless because no evidence was admitted to establish that he committed a prior robbery.

The record reflects that during the cross-examination of defendant, the following exchange occurred:

MR. FORTUNATO (prosecutor):
Q. I mean had you ever done anything like this before, just take people’s stuff, stuff that isn’t yours?
A. Never.
Q. You’ve never been involved in anything—I mean you—
A. Never.
MS. SHEPPARD (defense counsel):
Your Honor, objection.
MR. FORTUNATO:
Q. You almost seem accustomed to it.
MS. SHEPPARD:
Your Honor, objection.
BY MR. FORTUNATO:
Q. Would you be surprised to know that I’m shocked that you would suggest that you are not accustomed to this kind of behavior?
MS. SHEPPARD:
Objection. Approach, Your Honor.
MR. FORTUNATO:
I’ll withdraw the question.
MS. SHEPPARD:
No. Let’s approach.

At the bench conference, defense counsel moved for a mistrial, arguing the prosecutor knew he could not refer to any alleged prior bad acts. She contended this line of questioning was completely inappropriate. The prosecutor withdrew the question, and defense counsel responded that the question was already out there. The prosecutor stated defendant did not answer the question, and the trial judge agreed. The trial judge offered to tell the jury to disregard the comments made by the prosecutor and defense counsel replied, “That’s fine. But my objection—.” The trial judge denied the motion for mistrial and admonished the jury, striking the last comments made by the prosecutor, [523]*523and informing the jury not to consider the comments in any way. The trial judge reminded the jury that statements made by the attorneys and the prosecutor were not evidence, and they could not be considered.

Generally, evidence of other crimes committed by a defendant is inadmissible at trial due to the risk of grave prejudice to the defendant. State v. Williams, 01-1007 (La.App. 5 Cir. 02/26/02), 811 So.2d 1026, 1030.

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. La. C.Cr.P. art. 775. A mistrial is mandated upon a defendant’s motion, “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to.... another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” La. C.Cr.P. art. 770(2). An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. La. C.Cr.P. art. 770. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial. Id.

La. C.Cr.P. art.

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Cite This Page — Counsel Stack

Bluebook (online)
202 So. 3d 518, 15 La.App. 5 Cir. 792, 2016 La. App. LEXIS 1727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodas-lactapp-2016.