State v. Rowe

489 So. 2d 1069
CourtLouisiana Court of Appeal
DecidedMay 28, 1986
DocketKA 86 0030
StatusPublished
Cited by6 cases

This text of 489 So. 2d 1069 (State v. Rowe) 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. Rowe, 489 So. 2d 1069 (La. Ct. App. 1986).

Opinion

489 So.2d 1069 (1986)

STATE of Louisiana
v.
Bobby Glenn ROWE.

No. KA 86 0030.

Court of Appeal of Louisiana, First Circuit.

May 28, 1986.

*1070 Bryan Bush, Dist. Atty., Baton Rouge, by Don Johnson Asst. Dist. Atty., for plaintiff-appellee.

Carvel A. Sims, Baton Rouge, for defendant-appellant.

Before LOTTINGER, WATKINS and CRAIN, JJ.

WATKINS, Judge.

Defendant, Bobby Glenn Rowe, was charged by bill of information with armed robbery, in violation of LSA-R.S. 14:64. He pled not guilty and elected to be tried by jury. Defendant was initially tried on July 17 and 18, 1980, convicted and sentenced to fifty years imprisonment at hard labor. On appeal, defendant's conviction was reversed, and the case remanded for a new trial. State v. Rowe, 416 So.2d 87 (La. 1982). On retrial, held March 16 and 17, 1983, the jury returned a verdict of guilty of armed robbery and he was subsequently sentenced to fifty years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, and ordered to pay court costs amounting to $782.90. From this conviction and sentence defendant has appealed, urging the following three assignments of error:

1. The trial court erred in failing to declare a mistrial when a witness volunteered the information that she had received threatening telephone calls before the trial;

2. The trial court erred in allowing the prosecutor to give testimony during the trial; and

3. The trial court erred in imposing an excessive sentence.

FACTS

The instant offense was perpetrated by defendant and co-indictees Larry James Mack and Robert Pratt. On January 3, 1980, the trio met and planned the robbery of Lee's Grocery in Baton Rouge. They decided defendant would drive the automobile; Pratt would undertake a reconnaisance mission to determine the number of persons in the store; and Mack would enter the store alone and execute the robbery.

Around 10:30 or 11:30 a.m. Mack entered the store, removed a .32 caliber Smith and Wesson revolver from his pocket and pointed it at Barbara Elizabeth Aucoin, the store's cashier and only occupant at the time. Mack announced that a robbery was occurring and instructed her to put the money in a bag. Aucoin complied placing about eighty dollars in cash and some food stamps inside a grocery bag. A pistol belonging to the store's owner was also taken. Mack ran from the store with the stolen property and entered the back seat of the car driven by defendant with Pratt in the front seat. They then drove to the East End Hotel where they divided the money.

Aucoin immediately reported the robbery and Mack and defendant were apprehended later that day. Money, food stamps and the gun belonging to the store owner, as well as the .32 caliber Smith and Wesson used by Mack, were recovered by the police.

*1071 ASSIGNMENT OF ERROR NUMBER ONE

By means of this assignment, defendant asserts the trial court erred in failing to declare a mistrial when a state witness, Barbara Ann Hayes, volunteered information on cross-examination that she had received threatening telephone calls before the trial. Defendant argues that the question propounded to the witness did not call for the response given. Defendant contends that the failure of the witness to give a response in conformity with the question asked, together with the prosecutor's insistence that the witness explain her answer, caused the witness to give the alleged improper response. He further argues that the witness' response suggested to the jury that defendant might have had something to do with the threats.

Hayes initially stated she could not recall the robbery. Upon further questioning, she acknowledged she recalled the incident, but did not want to testify. The trial court informed Hayes she had no constitutional right to refuse to testify, and thereafter the jury was retired. The prosecutor informed the court that Hayes was not "even a suspect", but in any event he would state for the record that he was giving her transactional immunity. After the trial court explained her responsibility to testify, Hayes stated the reason for her reluctance to testify was that she had received threatening telephone calls and letters. The court noted that it was cognizant of the threats, but the witness had no choice. The trial court then ordered her to testify and the jury was returned.

Immediately following the conclusion of the state's direct examination, the following exchange occurred on cross-examination by defense counsel:

By Mr. Calmes:
Q. Ms. Hayes, you previously testified that you really couldn't recall this incident.
A. Pardon me?
Q. You previously testified that you really couldn't recall this incident. Is that true?
A. Okay, the reason why I did that—do you want to hear it?
Q. I just want you to answer my question.
Mr. Roy: I'm sure he doesn't want to hear that.
Mr. Calmes: Judge, I'm going to object to—
Mr. Roy: I insist she answer—I insist she answer the question.
Mr. Calmes: Judge, she has a right to answer the question.
A. I'm fixing to answer it. Okay, the reason why I did that is because I've been getting threatening phone calls—

The jury was retired, and defense counsel asked for a mistrial on the basis that Hayes' answer was unresponsive to his question and was prejudicial to defendant. Defense counsel contended his question called for only a yes or no answer and not for an elaboration. The trial court disagreed with this contention, denied the motion for mistrial and offered to admonish the jury. Defense counsel declined the offer, stating an admonishment would further focus the jury's attention on the alleged improper response.

Defendant did not elaborate for the trial court the specific grounds for his request for a mistrial, nor does he do so in brief before this Court. He merely argues that the witness' response implied defendant had made the threatening calls.[1] We assume, therefore, that defendant's argument relies upon La.C.Cr.P. art. 771,[2] which provides in pertinent part:

*1072 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:
* * * * * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Herein, we are not convinced the witness' disclosure that she had received threatening telephone calls was unresponsive to defense counsel's question. To the contrary, we believe defense counsel could reasonably have anticipated the alleged improper disclosure. Defense counsel had been privy to the same disclosure previously made by Hayes to the trial court outside the jury's presence.

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Bluebook (online)
489 So. 2d 1069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rowe-lactapp-1986.