State v. Ward

712 So. 2d 139, 1998 WL 97675
CourtLouisiana Court of Appeal
DecidedMarch 4, 1998
Docket96-KA-1588
StatusPublished
Cited by5 cases

This text of 712 So. 2d 139 (State v. Ward) 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. Ward, 712 So. 2d 139, 1998 WL 97675 (La. Ct. App. 1998).

Opinion

712 So.2d 139 (1998)

STATE of Louisiana
v.
Louis WARD.

No. 96-KA-1588.

Court of Appeal of Louisiana, Fourth Circuit.

March 4, 1998.
Rehearing Denied April 15, 1998.

*141 Harry F. Connick, District Attorney of Orleans Parish, Karen Godail, Arena Assistant District Attorney of Orleans Parish, New Orleans, for Appellee.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Appellant.

Before BYRNES, ARMSTRONG and LANDRIEU, JJ.

LANDRIEU, Judge.

On July 13, 1994 a jury found the defendant guilty as charged of purse snatching. The district court denied his motion for new trial on January 19, 1995. On the same date, the State filed a multiple offender bill charging him as a fourth felony offender. On November 29, 1995, the defendant filed a motion to quash the multiple offender bill. The district court denied the motion on January 17, 1996. On January 24, 1996, the defendant admitted to the allegations contained in the multiple offender bill. The district court then sentenced him to serve life imprisonment at hard labor.

FACTS

On December 21, 1993, Delia Wolf and several friends were having dinner at the Cajun Cabin restaurant on Bourbon Street. Two men, one of whom was later identified as the defendant, sat at the next table. Teresa Davis, the restaurant's assistant manager, testified that the two men requested a table by the door. Ms. Wolf testified that she felt the defendant was sitting too close to her, so she decided to wrap her purse, which was hanging on the back of her chair, around her arm. She also testified that, after the waitress asked her for identification, she put her wallet back into her purse and zipped the purse closed. Ms. Wolf stated that the two men at the next table were looking at menus and that they then got up very quickly and walked briskly out of the restaurant. Ms. Davis testified that the two men never placed an order after the waitress approached them two or three times and that she saw them walking very quickly out of the restaurant. She followed them and saw them run down St. Louis Street.

As Ms. Wolf became suspicious, she noticed that her purse was unzipped and that her wallet, which contained credit cards and two or three hundred dollars, was missing. Two of her friends, Paul Saenz and Josh Davidson, pursued the defendant and his cohort, who, Saenz testified, took up a "dead sprint." Upon seeing a police car, Saenz told Officers Loranda Lovell and John Gagliano what had happened. The officers saw the defendant and his unidentified companion on Rampart Street and ordered them to stop. Gagliano placed the defendant under arrest after he was identified by Saenz. Gagliano *142 testified that the defendant stated that he was not going to jail. Lovell pursued the other man into the Iberville Housing Development, but she lost sight of him after she tripped and fell. Ms. Wolf's wallet was never recovered.

DISCUSSION

A review of the record reveals no errors patent.

ASSIGNMENTS OF ERROR NO. 1 (COUNSEL) & NOS. 1 & 4 (PRO SE)

In these assignments of error,[1] the defendant complains the trial court erroneously denied his motion for mistrial, arguing that the prosecutor improperly made references to other crimes evidence and to the defendant's failure to testify. He also complains in his pro se brief that the trial court erred in not holding an evidentiary hearing when a juror allegedly told defense counsel that he intended to vote not guilty until he heard the prosecutor's reference to other crimes evidence. He argues that these errors were not harmless, because no witness saw him either take or dispose of a wallet and no witness found anything belonging to the victim in his possession.

The first complained-of comment occurred during the prosecutor's closing argument when the prosecutor stated the defendant told the officer who arrested him that he was not going "back" to jail. Defense counsel objected by pointing out that the officer testified the defendant said he was not going to jail. The trial court admonished the jurors that they were to remember for themselves what the testimony was and that what they were presently hearing was argument, not fact or evidence. After this admonishment, a bench conference was held, and closing argument resumed.

The defendant argues that this comment should not be deemed an inadvertent misstatement, because the prosecutor did not withdraw the statement. The State counters that the statement was, at most, a very ambiguous reference to other crimes evidence and was too remote to cause any prejudice to the defendant's case. The State further maintains that the jurors were aware of the misquote, because they had heard the officer's testimony and because the judge's instruction to them clarified that they were to consider the testimony and not the argument as evidence.

The trial court did not err in denying the motion for a mistrial, because the comment was simply a misstatement of a witness's testimony and was not a reference to other crimes allegedly committed by the defendant, impermissible under La.Code Crim. Proc. art. 770. The trial court properly admonished the jurors that they were not to consider the attorneys' arguments as evidence.

The second comment of which defendant complains was made by the prosecutor during rebuttal:

Where is this buddy he sat down with? Where is he? All I know is that it's subject No. 2. Ask yourself: who knows who the other man is? Not me and it's not the police. Who knows his identity and where is he today?

The defendant objected on the grounds that he did not have to put on a case and that he did not have to say anything about a different individual. The trial court overruled the objection.

The defendant argues that the prosecutor's comment was an indirect reference to his failure to testify, proscribed by La.Code Crim. Proc. art. 770. The State counters that the comment was intended to focus on the fact that the prosecution's case was uncontradicted and that there were witnesses other than the defendant who could have testified on his behalf. The State further asserts that this argument was made in response to the argument made by defense counsel regarding the State's failure to present the testimony of Josh Davidson.

When there is an indirect reference to the defendant's failure to take the stand and testify, the court determines the remark's intended effect on the jury. State v. Bourque, 622 So.2d 198 (La.1993); State v. Bowman, 95-0667 (La.App. 4th Cir. 7/10/96), *143 677 So.2d 1094, writ denied, 96-2070 (La.1/31/97), 687 So.2d 400. For such an indirect reference to mandate a mistrial, the State must have intended to draw the jury's attention to the defendant's failure to testify. State v. Clay, 612 So.2d 266 (La.App. 4th Cir.1992). If the prosecutor's intention was to emphasize that the State's case was unrebutted and that there were witnesses other than the defendant who could have testified on behalf of the defense but did not, the comment does not constitute an indirect reference to the defendant's failure to testify. State v. Johnson, 541 So.2d 818 (La.1989).

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Cite This Page — Counsel Stack

Bluebook (online)
712 So. 2d 139, 1998 WL 97675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ward-lactapp-1998.