State v. Scott

503 So. 2d 1173, 1987 La. App. LEXIS 8823
CourtLouisiana Court of Appeal
DecidedMarch 4, 1987
DocketNo. CR86-484
StatusPublished
Cited by1 cases

This text of 503 So. 2d 1173 (State v. Scott) 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. Scott, 503 So. 2d 1173, 1987 La. App. LEXIS 8823 (La. Ct. App. 1987).

Opinion

DOMENGEAUX, Judge.

The defendant, Leonard Scott, was indicted by a Beauregard Parish Grand Jury for the crime of first degree murder, a violation of La.R.S. 14:30. The indictment was amended to second degree murder, a violation of La.R.S. 14:30.1. On October 10, 1985, a motion to suppress hearing was held before the Honorable L.H. Coltharp, Jr. of the Thirty-sixth Judicial District Court. On November 7, 1985, Judge Col-tharp denied defendant’s motion. On December 2, 1985, trial commenced and on December 4,1985, the defendant was found guilty before a twelve person jury of a lesser included offense, manslaughter, a violation of La.R.S. 14:31. On March 24, 1986, the defendant was sentenced to forty-two years at hard labor under the habitual offender statute. La.R.S. 15:529.1.

The defendant now appeals the conviction and sentence based on five assignments of error.

FACTS

On May 29, 1986, defendant Leonard Scott met the victim, Thomas Bradford, in DeRidder. Scott was living with his aunt on Magnolia Street in DeRidder and Bradford lived next door. The two went drinking and ended up in Leesville. Eventually, the two men returned to Bradford’s apartment, where they began arguing. Bradford took a swing at Scott and Scott swatted Bradford’s hand down and hit him with his fist, and knocked him on the couch. Bradford got up and swung at Scott again, and Scott grabbed a hammer off a table and hit Bradford in the head with the hammer. Scott repeatedly hit Bradford in the head with the hammer, approximately ten times. Scott then threw a sheet over Bradford, took some of Bradford’s money, his car keys, and left in Bradford’s car and threw the hammer, clothes and towel in an isolated area near Rosepine, Louisiana. Scott then returned to drinking in Lees-ville.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the defendant argues that the trial court erred by not granting a mistrial after prejudicial remarks had been made during the jury voir dire examination. Specifically, the defendant contends that the trial judge, in a discourse with a potential juror, made prejudicial statements in the presence of the entire jury venire.

The language which the defendant finds prejudicial concerns an examination of a juror about her religious beliefs. The potential juror, Kerry Woods, expressed that she could not judge another human being because of her strong religious beliefs. She also stated that she was a member of the Church of Christ. The trial judge then commented on Mrs. Woods’ religious convictions, stating:

“All right, I understand what you are saying, but I hope you can understand that if everybody had_ Just a minute. If everybody had your view, our system of law simply wouldn’t function, and we’d all run around knocking each other off ... ”

After this comment, the defense attorney approached the bench and the trial judge admonished the jury as follows:

“Let me say to you jurors that have been chosen and to all of you, my choice of words perhaps was unfortunate when I commented about what might be the result of jurors who are — or citizens who felt that they could not serve as jurors by running around knocking one another off. Please disregard that comment. I did not ... was not making that with reference to this case, and since there is a homicide involved, it was a poor choice of words on my part. But I simply meant to indicate that there has to be for our system to work citizens who are willing to sit in judgment. This is because of the need for fairness to the communi[1176]*1176ty in which the offense occurs. So please disregard that terminology, and we’ll proceed on here.”

Prior to the new witnesses being sworn in, defendant moved for a mistrial and that motion was denied.

La.C.Cr.P. Articles 770 and 771 address the situations when prejudicial remarks are made in the presence of a jury.

La.C.Cr.P. Article 770 provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered 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:
(1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury:”

La.C.Cr.P. Article 771 applies in situations outside the scope of Article 770. La. C.Cr.P. Article 771 provides in pertinent part:

“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;
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.”

La.C.Cr.P. Article 771 leaves the decision whether to grant a mistrial or to admonish the jury to avoid the prejudicial testimony to the sound discretion of the trial court. State v. Smith, 418 So.2d 515 (La.1982); State v. Goods, 403 So.2d 1205 (La.1981). In State v. Burdgess, 434 So.2d 1062 (La. 1983), the Supreme Court held that a trial judge should grant a mistrial only where the prejudicial remarks result in substantial prejudice to the defendant, and it is impossible for the defendant to obtain a fair trial.

In the present case, the juror’s religious beliefs were relevant to her appropriateness as a juror. No connection was made between the juror and the defendant. No mention was made of the defendant’s religion or his religious beliefs. Nor was there any showing that the comments would create prejudice against the defendant in the mind of the jury. Therefore, the trial judge’s comments are outside the scope of La.C.Cr.P. Article 770, and we must look to the provisions of La.C.Cr.P. Article 771.

The trial judge, in his discretion, believed an admonition would suffice, despite the defendant’s motion for a mistrial. Prom the context of the judge’s initial comments and subsequent admonition, the record reveals that the trial judge was not trying to prejudice the jury against the defendant. The trial judge’s admonition tried to cure any problems that may have resulted from the casual remarks he made to the jury. “Casual remarks of the trial court not calculated to influence the jury are not grounds for mistrial or for the setting aside a verdict after conviction and sentence.” State v. Kenner, 290 So.2d 299 (La.1974).

We also conclude that the trial judge’s remarks are not comments on the facts under La.C.Cr.P. Article 772. The comments here were made prior to any evidence being received. They were not made with reference to defendant. Nor did they express the judge’s opinion as to the guilt or innocence of the defendant.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

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Related

State v. Scott
512 So. 2d 1174 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
503 So. 2d 1173, 1987 La. App. LEXIS 8823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-lactapp-1987.