State v. Simon

544 So. 2d 610, 1989 WL 54955
CourtLouisiana Court of Appeal
DecidedMay 24, 1989
DocketCR88-712
StatusPublished
Cited by11 cases

This text of 544 So. 2d 610 (State v. Simon) 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. Simon, 544 So. 2d 610, 1989 WL 54955 (La. Ct. App. 1989).

Opinion

544 So.2d 610 (1989)

STATE of Louisiana
v.
Antoinette Sheila SIMON.

No. CR88-712.

Court of Appeal of Louisiana, Third Circuit.

May 24, 1989.

*611 Emile A. Carmouche, Crowley, for defendant.

Robin Rhodes, Asst. Dist. Atty., Lafayette, for plaintiff.

Before DOMENGEAUX, STOKER and KNOLL, JJ.

STOKER, Judge.

The defendant, Antoinette Sheila Simon, was charged by Bill of Information with two counts of possession of cocaine with intent to distribute, violations of LSA-R.S. 40:967. After a trial by jury, the defendant was found guilty as charged on the first count, which occurred on December 10, 1986, and not guilty on the second count, which occurred on December 15, 1986. The defendant was sentenced to serve seven years at hard labor with the Department of Corrections. The defendant has appealed her conviction and designated 13 assignments of error. Six of those assignments of error have been expressly abandoned by the defendant and are not considered in this appeal.

FACTS

A confidential informant arranged for the defendant and Det. Jim Miller, of the Lafayette Parish Sheriff's Department, to meet at the Red Top Lounge in Lafayette for a drug transaction. The informant accompanied Det. Miller to the lounge where the defendant was waiting at the door for their arrival. The informant left the vehicle, approached the defendant and pointed out Det. Miller. The defendant joined Det. Miller in his vehicle, at which time she asked Miller "what he wanted." Miller told defendant that he wanted to purchase an "eight ball." An "eight ball" is a slang term for one-eighth of an ounce of cocaine. The defendant then took seven zip-loc bags containing a white powdery substance from the pocket of her jeans. Miller examined the bags and gave the defendant $300 in cash for the cocaine. The defendant got out of the vehicle, Miller picked up the informant and they departed from the lounge. Miller took the bags back to the Sheriff's Department where he packaged them in a brown evidence envelope and prepared the necessary paperwork to accompany it. The envelope was then placed in a locked cabinet in the narcotics section of the Sheriff's Department. Miller testified at trial that he did not handle the evidence after placing it in the cabinet.

On December 15, 1986 Det. Miller was told by the same informant that the defendant was inquiring as to whether or not Miller wished to purchase more cocaine. Miller had the informant set up a meeting for another purchase. Defendant did not want to meet at the Red Top Lounge again, so a meeting was arranged to take place at the oak tree in the parking lot of the Independence Plaza Shopping Center in Scott. This location was midway between defendant's trailer in Duson and the Red Top in Lafayette.

Miller testified that he and the informant arrived at the parking lot and waited several minutes. When the defendant arrived, the informant left Miller's vehicle and departed from the scene. It was raining very heavily that night, so the transaction was done from their vehicles through the windows. Defendant handed Miller seven zip-loc bags, he checked them, then handed her $300 in cash. Miller watched defendant leave going toward Lafayette. Miller then picked up the informant at another location. Miller went back to the Sheriff's Department, packaged the cocaine, did the necessary paperwork and again locked it in the cabinet in the narcotics department.

*612 I.

(Defendant's Assignment of Error No. 1)

By this assignment of error, defendant asserts that the trial court erred in declining to sustain defendant's motion for a mistrial based upon the remarks in the State's opening statement which, in substance, anticipated that the defendant would plead entrapment as a defense and that the State would counter this defense by producing evidence of other crimes to show defendant's predisposition to commit the crimes for which she was charged.

The specific statements made by the State which defendant objected to are as follows:

"After this introduction, then the undercover narcotics detective who is unknown by the suspect is then able in some cases to set a trap for the suspect or to furnish the suspect with an opportunity to distribute illegal drugs which that suspect is already predisposed or ready, willing, and able to do."
* * * * * *
"On December 10th, 1986, the defendant, Antoinette Shelia Simon, already predisposed and ready, willing, and able to distribute cocaine was given the opportunity to do so to an undercover narcotics officer unknown to her as an undercover narcotics officer. On that date the defendant indicated that she was ready, willing, and able to distribute cocaine. Detective Jim Miller of the Lafayette Parish Sheriff's Office operating in an undercover capacity in the narcotics division of the Sheriff's Office was introduced to the defendant for that purpose."
* * * * * *
"In this case the State is going to show you by piecing those puzzle pieces that it is a clear picture that the defendant did indeed distribute cocaine to an undercover narcotics detective without any inducement from him. She ready, willing, and able to distribute that substance to the detective on two occasions."
* * * * * *
"The evidence that the State must present to you must be free of any evidence of entrapment. As I suggested to you earlier in my preface or prefactory of the beginning part of my comments in the opening statement, this defendant in this case was predisposed—
MR. CARMOUCHE: Your Honor, may I approach the bench with counsel?
THE COURT: Yes, sir.
(BENCH CONFERENCE)
THE COURT: You object to the argument opening statement made by the State. The Court overrules your objection. We can do it later after the jury is not present in the courtroom.
THE COURT: You can continue.
MR. STUTES: Thank you, Judge. As I suggested to you earlier, and I'm not telling you anything new at this point, defendant was ready, willing, and able to distribute cocaine on two occasions to the defendant—to the detective without any inducement or any encouragement or without any wrong conduct on the part of the detective. The detective merely gave the defendant two opportunities to do exactly what she was ready, willing, and able to do and that's distribute cocaine."

Defendant's argument is that this should have constituted grounds for a mistrial under LSA-C.Cr.P. art. 770(2) because any evidence reflecting adversely upon a defendant's character is highly prejudicial and therefore inadmissible unless the defendant has first made his character an issue. Defendant argues that State v. Coleman, 499 So.2d 408 (La.App. 4th Cir.1986) and State v. Batiste, 363 So.2d 639 (La.1978) require that a mistrial be granted. In Coleman, the State made a direct reference in its opening statement to defendant's prior criminal record, which qualifies as an indirect reference to other crimes. In Batiste, the testimony elicited during examination of the State's chief witness showed that defendant had previously participated in arranging a drug sale. We do not find either of these cases to be controlling.

*613 It is clear from the transcript that the State at no time in its opening statement made a direct reference to defendant's prior criminal record while in the presence of the jury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. McGinnis
981 So. 2d 881 (Louisiana Court of Appeal, 2008)
State of Louisiana v. Ezekiel Maurice McGinnis
Louisiana Court of Appeal, 2008
Arriola v. Orleans Parish School Bd.
809 So. 2d 932 (Supreme Court of Louisiana, 2002)
State v. Gamble
631 So. 2d 586 (Louisiana Court of Appeal, 1994)
State v. Lee
640 So. 2d 270 (Louisiana Court of Appeal, 1993)
State v. Carey
626 So. 2d 905 (Louisiana Court of Appeal, 1993)
State v. Deal
607 So. 2d 641 (Louisiana Court of Appeal, 1992)
State v. Fann
597 So. 2d 1230 (Louisiana Court of Appeal, 1992)
State v. Jones
587 So. 2d 787 (Louisiana Court of Appeal, 1991)
State v. Davis
568 So. 2d 190 (Louisiana Court of Appeal, 1990)
State v. Campbell
566 So. 2d 1038 (Louisiana Court of Appeal, 1990)
State v. Simon
550 So. 2d 647 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
544 So. 2d 610, 1989 WL 54955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simon-lactapp-1989.