State v. Thompson

569 So. 2d 593, 1990 La. App. LEXIS 2403, 1990 WL 166860
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
DocketNo. 21836-KA
StatusPublished
Cited by3 cases

This text of 569 So. 2d 593 (State v. Thompson) 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. Thompson, 569 So. 2d 593, 1990 La. App. LEXIS 2403, 1990 WL 166860 (La. Ct. App. 1990).

Opinion

MARVIN, Chief Judge.

Lonnie Eugene Thompson, presently age 34, appeals his convictions and consecutive sentences that total 20 years at hard labor of two counts for molestation of his then 11-year-old stepdaughter. LRS 14:81.2 C.

He complains that a mistrial should have been granted because he was not given notice that video taped testimony of his victim would refer to his abuse of other children. He also complains that his sentences that total 20 years (10 years on each of the two counts, to run consecutively) are excessive and were imposed with little or no regard for CCrP Art. 894.1 guidelines.

We affirm.

FACTS

In early 1987, Thompson’s wife awoke in the middle of the night and entered her living room, finding Thompson undressed and sitting in a rocking chair with her 11-year-old daughter in a nightgown sitting on the floor in front of him. The child’s panties were nearby on the floor. Mrs. Thompson immediately ordered the child to bed, questioning her about the incident after dawn. Mrs. Thompson and her daughter did not immediately report the incident because they both were afraid of Thompson, who was 6’2” and weighed 307 pounds. Mrs. Thompson and her children subsequently left Thompson when he whipped one of her other children with a plunger. Thompson then, returned to his family home in Missouri where he was incarcerated for a short time for probation violation.

Thompson’s stepdaughter later told a cousin about Thompson’s conduct. When Thompson returned to Louisiana from Missouri in 1988, his past conduct with the stepdaughter again was discussed and was eventually learned by an aunt and a family friend whom the stepdaughter called “grandmother.” The “grandmother” contacted juvenile authorities. An interview of the stepdaughter was video taped in 1988 by authorities.

In the video taped interview the child disclosed that she had been sexually molested by Thompson on two occasions several months apart in 1986 and early 1987. She said that the first incident occurred in 1986 when Thompson called her to the bedroom while her brothers were playing outside, ordering her to take off her clothes. She said when she initially refused, Thompson said, “You’re going to do it anyway.” She obeyed. Thompson placed her on the bed and, over her protests, put his finger and then his tongue in her vagina. She [595]*595cried during the ordeal, which ceased when one of her brothers entered the home.

On the second incident in 1987, Thompson came into her bedroom late one night after he had been drinking. He ordered her to the living room where he told her to take off her panties. She said when she refused, that Thompson said, “Yes, you’re going to do it ... take them off.” When she obeyed, Thompson ordered her to perform oral sex on him. When she hesitated, he manually took her head and forced her mouth to his penis. After a few moments, he released her head and then took her hand, forcing her to masturbate him. It was shortly after this incident that Mrs. Thompson awoke and entered the living room.

As we have noted, Thompson, who is called “Hoss,” is 6’2” tall and weighs 307 pounds. In the 1988 video-tape, his then 12-year-old stepdaughter appears to be short, no more than five feet tall, and thin, about 100 pounds. The stepdaughter was reluctant to testify at trial.

By an amended answer to discovery on the first day of the trial, the State notified Thompson of its intent to play the video tape to the jury. The video tape was played before the jury the next day. In the taped interview the stepdaughter mentioned that she had heard that Thompson had been jailed for abusing his other children. After the tape was played Thompson complained that the stepdaughter had mentioned “other crimes evidence” of which he should have been given notice.

ASSIGNMENT ONE

Thompson did not object to the video tape being played to the jury in lieu of the stepdaughter’s testimony. He makes no assignment of error in that regard.

After the tape had been seen and heard by the jury Thompson moved for a mistrial, complaining that he was denied a fair trial because he was not given notice of the State’s intent to offer other crimes evidence as required by La.C.E. Art. 1103 and State v. Prieur, 277 So.2d 126 (La.1973). He assigns, as error, the denial of his motion for mistrial.

After reviewing the State’s notice to Thompson of its intent to play the video tape to the jury, the court denied Thompson’s motion for a mistrial and offered to give the jury a limiting instruction about the effect of other crimes evidence. Thompson declined the offer.

The trial court reasoned that Thompson had access to the tape before it was played and should have objected before the tape was played. We agree.

The alleged error was not properly presented or preserved in the trial court. In any event we would find the court correctly denied a mistrial under the circumstances. CCrP Art. 841.

Thompson does not specifically address the merits of this procedural bar in his brief but insists, as he did below, that he was denied a fair trial because the State did not give notice of its intent to offer other crimes evidence as required by La. C.E. Art. 1103 and State v. Prieur, supra.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. CCrP Art. 841. The trial court must be given an opportunity to cure any error that affects the integrity of the trial. State v. Marcell, 320 So.2d 195 (La.1975).

An objection made after the evidence is before the jury comes too late for the trial court to cure or avoid the error. State v. Bretz, 394 So.2d 245 (La.1981), U.S. cert, denied. There, an objection to questions about defendant’s marital status and relationship to a witness that was made after the witness had answered was held to have come too late.

A defendant cannot complain on appeal that the State was allowed to give belated notice of its intent to offer an incul-patory statement when he made no objection either when the notice was given or when the inculpatory statement was introduced. State v. Hebert, 443 So.2d 613 (La.App. 3d Cir.1983), writ denied.

A defendant cannot complain on appeal that a mistrial should have been grant[596]*596ed because he was not given notice of the State’s intent to use inculpatory statements when he did not object to cross-examination about his inculpatory statements in the trial court. In State v. Major, 476 So.2d 540 (La.App. 1st Cir.1985), reversed in part, 485 So.2d 57 (La.1986).

The appellate court reasoned that Major was entitled to notice but held that any error in the denial of mistrial was not preserved for consideration on appeal because that defendant failed to timely object. The court noted that defense counsel objected only after the State had completed its cross-examination. The court correctly reasoned that the trial court should have been given an opportunity to cure the error and that defendant was not denied a fair trial, because any prejudice to him was attributable to his tardy objection.

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Related

State v. Jones
769 So. 2d 708 (Louisiana Court of Appeal, 2000)
State v. Pickrom
732 So. 2d 800 (Louisiana Court of Appeal, 1999)
State v. Thompson
592 So. 2d 1314 (Supreme Court of Louisiana, 1992)

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Bluebook (online)
569 So. 2d 593, 1990 La. App. LEXIS 2403, 1990 WL 166860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-lactapp-1990.