State v. Simms

505 So. 2d 981
CourtLouisiana Court of Appeal
DecidedApril 8, 1987
DocketCR86-1020
StatusPublished
Cited by8 cases

This text of 505 So. 2d 981 (State v. Simms) 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. Simms, 505 So. 2d 981 (La. Ct. App. 1987).

Opinion

505 So.2d 981 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
Dwight SIMMS, Defendant-Appellant.

No. CR86-1020.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1987.

*982 Steve Gunnell, Cassidy & Gunnell, Jennings, for defendant-appellant.

Wendell Miller, Dist. Atty., D. Keith Wall, Asst. Dist. Atty., Jennings, for plaintiff-appellee.

Before LABORDE and YELVERTON, JJ., and CULPEPPER, J. Pro Tem.[*]

*983 WILLIAM A. CULPEPPER, Judge Pro Tem.

Defendant, Dwight Simms, was charged by bill of information with attempted unauthorized entry of an inhabited dwelling in violation of LSA-R.S. 14:27 and LSA-R.S. 14:62.3. He was found guilty as charged by a six person jury on May 14, 1986. On August 18, 1986, the defendant was sentenced to serve three years at hard labor, to run consecutively with the sentence defendant is currently serving on parole. Defendant now appeals, asserting ten assignments of error. We affirm.

FACTS

On November 19, 1985, the defendant and three companions were traveling to Houston when their car ran out of gas on the interstate near Welsh, Louisiana. Defendant left the car carrying a bat and went to a house on the other side of the highway. The owner of the house, Roger Broderick, returned home and noticed the car on the side of the interstate. As he approached the house, someone in the car started honking the horn. When Broderick turned into the driveway, he noticed a man standing at his side window. The man ran, and Broderick discovered that the window screen had been removed, the glass was broken, and the latch was open. Broderick found a baseball bat below the window. The police arrived and investigated the car on the interstate and its occupants. The police detective noticed fresh mud on defendant's shoes. In a later investigation, the detective found footprints in the ditch between the road and the victim's house which matched defendant's shoe prints. He also discovered another bat near the spot where the broken-down car had been.

One of the occupants of the car testified that defendant left the car with a bat and headed toward a house after the car broke down. She also testified that when defendant returned, he said, "I almost got caught." Another of defendant's companions testified that defendant "carried a bat across the overpass to break into them people's house."

ASSIGNMENT OF ERROR NUMBER 1

By assignment of error number one, defendant argues that the trial court erred in admitting certain testimony by defendant's companions, regarding allegedly inculpatory statements made by the defendant, because the statements were not disclosed to defendant prior to trial pursuant to LSA-C. Cr.P. art. 729.3. The trial court found that these statements, which concerned the defendant's activity prior to, during, and immediately after the crime, were part of the res gestae and therefore admissible under an exception to the hearsay rule.

LSA-R.S. 15:447 defines res gestae as "events speaking for themselves under the immediate pressure of the occurrence." In Louisiana, the res gestae doctrine is broad and includes not only the spontaneous utterances and declarations made before or after the crime, but also the testimony of witnesses pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. State v. Kimble, 407 So.2d 693 (La.1981). The testimony of the witnesses in this case as to defendant's actions before, during, and after the crime clearly fall within the res gestae exception to the hearsay rule and are admissible.

Defendant also contends that the State's failure to give the defendant notice of these statements prior to trial constituted reversible error. It has been consistently held that the State is not required to give notice to the defendant of its intent to use res gestae statements. State v. Barnes, 414 So.2d 711 (La.1982); State v. Belgard, 410 So.2d 720 (La.1982); State v. Smith, 466 So.2d 1343 (La.App. 3 Cir. 1985).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment, defendant contends that the trial court erred in denying his motion for a mistrial, when one of *984 the State's witnesses referred to the defendant's prior criminal record in front of the jury. The remark was in response to a defense attorney's question to which the witness answered, "If you was sent to Angola for twenty years, you have no other choice but to do right when you get out." The court admonished the jury after overruling defense counsel's motion for a mistrial.

An admonition is sufficient to cure any prejudice resulting from a prosecution witness' remarks concerning evidence of other crimes of the defendant, as to which evidence would not be admissible, where the witness' remarks were elicited by defense counsel and there was no specific intention to prejudice the defendant. State v. Jones, 451 So.2d 1181 (La.App. 1 Cir.1984). Such testimony is not chargeable against the State so as to provide a ground for reversal of a conviction. State v. Jackson, 396 So.2d 1291 (La.1981).

Under LSA-C.Cr.P. art. 771, it is within the trial court's sound discretion to grant a mistrial if he believes that an admonition is insufficient to assure the defendant a fair trial. Jones, supra. Since there has not been a showing that defendant was prejudiced by this remark, we find that the trial judge's admonition was sufficient in this case.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 3

By assignment of error number three, the defendant contends that the trial court erred in denying his motion to "recuse" his attorney. The defendant did not complain about his attorney's performance until the day of jury selection, when he apparently was dissatisfied with the manner in which his court-appointed attorney questioned the prospective jurors.

A defendant's right to the assistance of counsel is guaranteed by both federal and state law. U.S. Const.Amend. VI; La. Const. of 1974, Art. I, § 13; La.C.Cr.P. art. 515. However, the Louisiana Supreme Court has consistently held that this right cannot be used to obstruct the orderly procedure of the courts. State v. Seiss, 428 So.2d 444 (La.1983); State v. Champion, 412 So.2d 1048 (La.1982); State v. Johnson, 389 So.2d 1302 (La.1980).

Defendant must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings. State v. Seiss, supra; State v. Leggett, 363 So.2d 434 (La.1978). Absent a justifiable basis, there is no constitutional right to make a new choice of counsel on the very date trial is to begin, with the attendant necessity of a continuance and its disrupting complications. State v. Seiss, supra; State v. Leggett, supra.

Once the trial date has arrived, the question of withdrawal of counsel largely rests with the discretion of the trial judge. The Louisiana Supreme Court has frequently upheld the trial court's denial of motions for withdrawal of counsel made on the day of trial when the defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Leggett, supra.

Since the defendant waited until the middle of voir dire to express dissatisfaction with his attorney, when he had sufficient time to hire other counsel, we find that the trial judge was not clearly wrong in denying his request for withdrawal of counsel.

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Bluebook (online)
505 So. 2d 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simms-lactapp-1987.