95-1352 La.App. 3 Cir. 4/3/96, State v. Crawford

• Decision Date: 03 April 1996
• Citation: 672 So.2d 197
• Parties: 95-1352 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 197

672 So.2d 197

95-1352 La.App. 3 Cir. 4/3/96

STATE of Louisiana, Appellee, v. Mark Allen CRAWFORD, Defendant-Appellant.

No. CR 95-1352.

Court of Appeal of Louisiana, Third Circuit.

April 3, 1996.

On appeal from the Sixteenth Judicial District Court for the Parish of Iberia, State of Louisiana, the Honorable Michael J. McNulty, Judge, presiding.

Bernard E. Boudreaux Jr., Dist. Atty., Franklin, Lori Ann Landry, New Iberia, for State.

Kevin Patrick Monahan for Mark Allen Crawford.

Before DOUCET, C.J., and SULLIVAN and GREMILLION, JJ.

[95-1352 La.App. 3 Cir. 1] DOUCET, Chief Judge.

On March 9, 1994, the defendant, Mark Crawford, was indicted on one count of aggravated rape, a violation of La.R.S. 14:42(A)(3), and one count of aggravated oral sexual battery, a violation of La.R.S. 14:43.4(A)(3). On April 6, 1994, defendant was arraigned on and pled not guilty to both charges. On March 13-17, 1995, defendant was tried before and found guilty by a twelve person jury on the charge of aggravated rape. On March 27, 1995, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction alleging seven assignments of error and requests a new trial.

[95-1352 La.App. 3 Cir. 2] FACTS:

On July 31, 1993, in the Parish of Iberia, the defendant, Mark Crawford, entered the trailer of the victim, Tiffany Keal, and raped her. Crawford, who was a neighbor of the victim, threatened her with a knife.

ERROR PATENT:

La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.

In accordance with this article, all appeals are reviewed by this court for errors patent on the face of the record. Upon reviewing the record, we found one error patent. La.Code Crim.P. art. 880 provides that when imposing sentence the court shall give the defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence. The record indicates the trial court did not do so. Thus, we amend the sentence to reflect that the defendant is given credit for time served prior to the execution of the sentence. See La.Code Crim.P. art. 882(A). Resentencing is not required; however, we remand this case and order the district court to amend the commitment and minute entry of the sentence to reflect that the defendant is given credit for time served. State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858.

ASSIGNMENT OF ERROR NO. 1:

By his first assignment of error, defendant contends that the emotional manifestations of the prosecuting witness in the jury's presence constituted substantial prejudice and that the trial judge abused his discretion in not granting a [95-1352 La.App. 3 Cir. 3] mistrial. When the judge asked the State to call its first witness, the prosecutor asked permission to go get her. The prosecutor left the courtroom for several minutes and returned with the victim, Tiffany Keal, who was crying. The trial judge called for a recess, and out of the hearing of the jury, defense counsel motioned for a new trial. He argued his client could not get a fair trial before the then empaneled twelve jurors because they had been tainted by the victim's wailing and crying. He further argued that an admonition would not suffice. The trial judge denied the motion, stating he would allow the witness to testify if she could compose herself. While the jury was out and the judge conferred with counsel, the witness composed herself. The jury returned, Keal testified without crying, and the trial judge instructed the jury that their judgment should not be influenced by the visible manifestations of emotional upset exhibited by the victim or any other witness. Defendant appeals the trial judge's ruling, saying the witness's outburst merited a mistrial.

La.Code Crim.P. art. 775 states in pertinent part:

* * * * * *

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

A mistrial is a drastic remedy and a trial judge has broad discretion in determining whether conduct is so prejudicial so as to deprive an accused of a fair trial. State v. Worthen, 550 So.2d 399 (La.App. 3 Cir.1989). In their briefs, both defendant and the State agree that unsolicited statements and spontaneous conduct of a witness are usually not grounds for mistrial. State v. Newman, 283 So.2d 756 (La.1973), certiorari denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). The determination of whether prejudice has resulted is within the sound discretion of the trial judge whose ruling should not be disturbed absent abuse of discretion. State v. Franklin, [95-1352 La.App. 3 Cir. 4] 520 So.2d 1047 (La.App. 3 Cir.1987). In State v. Hopkins, 626 So.2d 820 (La.App. 2 Cir.1993), the court noted:

In State v. Wright, 441 So.2d 1301 (La.App. 1st Cir.1983), the first circuit affirmed the denial of a mistrial motion prompted by a spectator's outburst at the close of trial. Removal of that person from the courtroom and an admonition to the jury sufficiently cured any possible prejudice. Likewise, in State v. Domangue, 350 So.2d 599 (La.1977), the supreme court deemed a mistrial unnecessary when a rape victim's spouse began crying during closing arguments and before being escorted outside.

Id. at 823.

In Hopkins, the victim's family appeared upset and cried during closing arguments. The trial judge denied a mistrial and did not immediately admonish the jury. She did later charge them not to be influenced by sympathy, passions, prejudice, or public opinion.

In Worthen, 550 So.2d 399, this court affirmed the denial of a motion for a mistrial based on an unprovoked verbal outburst and crying by the victim, who was being cross-examined. The victim in Worthen had been raped, as was the victim in the case sub judice. The trial judge noted and this court agreed that the victim's emotional state was understandable. This court further cited the strong admonition to the jury by the trial judge, in affirming the defendant's conviction in Worthen.

As in Worthen, the trial judge in the instant case took immediate action to remove the jurors from the courtroom, instructed the victim to try to maintain her composure while testifying, and subsequently admonished the jury after the victim testified. The record reveals no verbal outburst by the victim in this case. Defense counsel argues in brief that this case rises to the level of substantial prejudice and warranted mistrial, in part, because the prosecutor knew the victim's emotional state before she ushered her into the courtroom. Defendant has not explained the relevance of that fact nor has he cited any authority which would support his argument. Thus, [95-1352 La.App. 3 Cir. 5] we find the victim's crying was understandable and not substantially prejudicial. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2:

By his second assignment of error, defendant contends the hearsay testimony given by Barbara Touchet, the mother of the victim, Abby Romero, aunt of the victim, and Sheriff's Deputy Tim Ackal, who responded to Keal's 911 call, was improperly admitted under the La.Code Evid. art. 801(D)(4). All three witnesses stated what the victim had told each of the witnesses within thirty minutes before or after the crime. Defense counsel objected to the statements saying they were hearsay. The trial judge admitted the statements under La.Code Evid. art. 801(D)(4) which states:

D. Statements which are not hearsay. A statement is not hearsay if:

* * * * * *

(4) Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

Touchet's testimony included a statement made by the victim to her, over the telephone, just prior to the rape, while the defendant was in the house with her daughter. Once Touchet was made aware, through her phone conversation with the victim that Mark Crawford was in the trailer with her and that Tiffany feared him, Touchet immediately drove with her sister and brother-in-law to the trailer. The rest of Keal's statements repeated by Touchet took place immediately upon Touchet's arrival at the trailer, within thirty minutes of the rape.

The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the [95-1352 La.App. 3 Cir. 6] continuous chain of events is evident under the circumstances. [Citations omitted.]

State v. Armstrong, 453 So.2d 1256, 1260 (La.App. 3 Cir.), writ denied, 457 So.2d 16 (La.1984). See also State v. Leonard, 543 So.2d 975 (La.App. 3 Cir.1989). The phone call which occurred just prior to the rape was admissible under La.Code Evid. art. 801(D)(4) ¹. The other testimony, i.e., the victim's comments to her mother, as well as those made to the other witnesses, were admissible either under La.Code Evid. art. 801(D)(4) or art. 803(2) which states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * * * * *

(2) Excited...