State v. Smith

418 So. 2d 534
Supreme Court of Louisiana·Decided June 21, 1982·No. 81-KA-3189·Published·Cited by 17 cases

Opinion

418 So.2d 534 (1982)

STATE of Louisiana
v.
Ola SMITH.

No. 81-KA-3189.

Supreme Court of Louisiana.

June 21, 1982.
Rehearing Denied September 3, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., G. M. Grosz, Abbott J. Reeves, William Credo, Asst. Dist. Attys., for plaintiff-appellee.

Joseph L. Montgomery, Metaire, for defendant-appellant.

WILLIAM NORRIS, III, Justice Ad Hoc[*].

Defendant was charged by bill of information with the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, she was found guilty as charged resulting in the imposition of a sentence of 20 years at hard labor without benefit of probation, parole, or suspension of sentence.

*535 It is from this conviction and the resulting sentence that defendant appeals asserting two assignments of error, to-wit: (1) The Trial Court committed reversible error by failing to grant defendant's motion for mistrial following questioning and comments by the District Attorney in violation of La.C.Cr.P. Art. 770(2) and La.R.S. 15:495; and (2) The Trial Court failed to properly delineate its reasons when it imposed sentence, and that the sentence was excessive.

FACTS

On January 6, 1977, at approximately 11:30 a. m. two black males and two black females entered the Hum Bug Jeans Store located on Williams Boulevard in Kenner, Louisiana. The two men stood at one end of the store while the two women selected two pair of jeans and shopped for shirts. There were two employees in the store during this time, one of whom was working behind the check-out counter. One of the two men came up behind this particular employee and said, "Turn around slow. This is a stick-up." When the employee turned around, he was confronted by the two men, one of whom had a gun. The two employees were then taken to the rear of the store and forced to lie on the floor of the stockroom. The black female later identified by the victims as the defendant, Ola Smith, held a gun to each of the victims' heads while they were being tied up by one of the men. The foursome stole approximately $3400 worth of jewelry, leather coats, jeans and suits and about $200 in cash. After they exited the store, they were seen by an adjoining shopowner who called the police and untied the victims.

Defendant was arrested the next day on a fugitive warrant from the 29th Judicial District Court for an armed robbery in St. Charles Parish. After her arrest, officers of the Kenner Police Department arranged a photographic line-up which was shown to the victims of the instant offense, who identified defendant as the female participant who had held the gun to their heads during the robbery at the Hum Bug Jeans Store.

ASSIGNMENT OF ERROR # 1

Prior to and on the same day as defendant's trial, a hearing was held on a motion to suppress defendant's identification at the photo line-up. After defendant's motion to suppress was denied, defense counsel stated to the court that he had been served with notice of intention to use certain oral and written statements given by defendant. Defense counsel also objected to the use of the written statement because it did not relate to the instant offense but only related to the pending charge in St. Charles Parish. The court sustained the objection insofar as it related to the warrant for arrest from St. Charles Parish and gave the following instruction directed to the prosecutor:

I will sustain the objection to the written statement insofar as it relates to any warrant for arrest from St. Charles Parish. Also, I want you to caution the police officers not to go into the St. Charles Parish warrant. What other motions do we have?

Thereafter, trial on the instant offense commenced. The first witness called was Nick Congemi, a supervisor with the Kenner Police Department. He testified that he had directed Detective Fayard to take the photographs of defendant and arrange for the photo line-up. During cross examination, defense counsel pursued a line of questioning seeking to determine why a photo line-up rather than a physical line-up had been utilized for identification purposes. When defense counsel asked why the witness did not utilize the facilities of Jefferson Parish for a line-up, the court excused the jury.

The court then asked the question to the witness outside the jury's presence. The witness then answered as follows:

Initially, she was arrested on a warrant from St. Charles Parish for armed robbery there and after we had her in our custody and prior to transporting her to Jefferson Parish, we took photographs of her prior to transferring her to St. Charles Parish. There was no way of taking her to Jefferson Parish at that time.

*536 After further questioning by defense counsel [also outside of the presence of the jury], the court informed him that this line of questioning was leading to the St. Charles Parish armed robbery charge. The court further remarked that he might "open the door" with this line of questioning. The court finally remarked:

I am perfectly willing to let you talk about why the procedure wasn't proper, but are you willing to let him repeat this in front of the jury. I would think that it would be very prejudicial to your client and I am trying to avoid any prejudicial evidence getting before this jury, such as testimony about an outstanding charge of armed robbery in another parish. I think you have made your point. (Emphasis added.)

After this statement, the jury returned, and defense counsel asked no further questions of this witness.

No further reference was made to any prior arrests until the defendant took the stand in her own defense. On direct examination she testified that she had no criminal record. Furthermore, she specifically denied having participated in the instant armed robbery.

Thereafter, on cross examination, the following exchange occurred between the defendant and the prosecutor:

[PROSECUTOR]
Q You testified that you have no criminal record, is that right?
A No.
Q Are you the same Ola Smith that was arrested in 1974, in Harahan, for possession of narcotics?
A No, I have never been arrested.
Q Are you not the same Ola Smith that was arrested on a fugitive warrant from St. Charles Parish for armed robbery?
A Yes, I was.
Q But, you don't have any criminal record?
A No.
[PROSECUTOR]
That's all I have.

No objection was made to this line of questions.

Subsequent to this exchange when the defendant completed her testimony on re-direct examination, the state attempted to introduce an exhibit which was termed the "rap sheet of Ola Smith." The defense then objected, and the court sustained the objection admonishing the jury to disregard the offering.

Then during closing argument, the prosecutor made the following comments:

* * * * * *

Another thing, she doesn't have a good memory about her criminal record, and she denies having ever been arrested for narcotics and about the St. Charles Parish—

MR. WILLIAMS:

Your Honor, I object and I'm going to move for mistrial.

The court sustained the objection but denied the motion for the mistrial. Furthermore, there was no admonition given to the jury to disregard this statement.

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State v. Smith, 418 So. 2d 534 (La. 1982).

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