State v. Camp
Decision Date | 15 May 1991 |
Docket Number | No. 90-KA-774,90-KA-774 |
Citation | 580 So.2d 957 |
Parties | STATE of Louisiana v. Landis J. CAMP. 580 So.2d 957 |
Court | Court of Appeal of Louisiana — District of US |
Bruce G. Whittaker Staff Appellate Counsel Indigent Defender Bd., Gretna, for defendant/appellant.
John M. Mamoulides, Dist. Atty., Denis Ganucheau, Dorothy A. Pendergast, Asst. Dist. Attys., Research & Appeals, Gretna, for plaintiff/appellee.
Before BOWES, DUFRESNE and GOTHARD, JJ.
Defendant, Landis J. Camp, appeals a jury verdict finding him guilty of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. The trial court sentenced the defendant to three years at hard labor, the first year to be served without benefit of parole, probation, or suspension of sentence. For the following reasons, we affirm.
On December 25, 1988, Keith Earl, a neighbor of the victim and eyewitness to the burglary, heard the sound of breaking glass. He looked out the door but did not see anything. Upon hearing the sound of breaking glass a second time, he looked out of his sliding glass door on his balcony and observed an individual leaving the neighboring apartment with a television set. Earl yelled to defendant to stop; however, defendant kept going out of the door. Earl ran downstairs and began chasing defendant down the street. As Earl caught up to the suspect, he dropped the television set and continued his flight. By this time, a second individual saw what was happening and joined in the chase. The two men eventually apprehended defendant and held him down until the police arrived. At trial, Earl identified defendant as the individual he saw coming out of the apartment with the television set.
The second individual, Keith Romaguera, testified at trial as to his participation in the apprehension of defendant. He also identified defendant in court as the individual he was chasing on December 25, 1988.
Michael Anderson, the victim of the burglary, testified at trial that he was a casual acquaintance of defendant, but that he did not give authorization to defendant to enter his apartment or to remove any of his personal belongings from the apartment. Anderson also testified that defendant came to his apartment approximately 3-5 days before the burglary, and defendant knew of Anderson's plans to be in Chicago for the holidays. On cross-examination, Anderson admitted that he had no personal knowledge of who burglarized his apartment.
After the presentation of the State's case, defendant testified in his own behalf. He admitted that on December 25, 1988, at approximately 11:30 a.m., he was in the general vicinity of the burglary because he was visiting a friend. Upon leaving the friend's apartment, he ran across the street to avoid an approaching vehicle. As he was running, he saw these two white men chasing a third individual. However, the two lost the man they were chasing and grabbed defendant instead. Defendant denied any involvement in the burglary.
As a rebuttal witness, the State called Deputy David Shaw who testified that he responded to a burglary call on December 25, 1988 at 520 Wall Boulevard. Upon arrival, he found two white males holding a black male down on the grassy area in front of the apartment complex. He also observed a large television in the grass a short distance away. Shaw identified defendant in court as the individual Earl and Romaguera apprehended; Shaw, thereafter, placed defendant under arrest.
It is alleged by the defendant that the trial court erred in denying the appellant's motion for a mistrial due to a reference to inadmissible evidence of another crime.
At trial, Mr. Keith Earl was called as a state witness to testify as to his participation in the apprehension of defendant. The following excerpt from the transcript forms the basis for the instant objection:
"Q. Was Mr. Camp armed?
A. I didn't know it at the time I chased him, but when the police got there and frisked him he did have a knife.
MR. HAFNER:
Objection. May we approach the bench?
Yes.
(The following is outside the hearing of the jury.)
MR. HAFNER:
Your Honor, I am going to object to the introduction of any evidence of other crimes. I asked the D.A. at the start of the trial if he was going to use any Prieur evidence and he said no. Now he is trying to introduce evidence of another crime, carrying a concealed weapon.
MR. GANUCHEAU:
No, he's not charged with that.
MR. HAFNER:
Then you can't use evidence of another crime such as carrying a concealed weapon, which has nothing to do with this case. I would ask for a mistrial.
The Court is going to sustain your objection and if you go any further into this and try to introduce another crime then I will give a mistrial.
MR. HAFNER:
Your Honor, please note for the record my request for a mistrial.
No, I would object to any admonishment and I still request a mistrial.
The Court is going to deny your motion for a mistrial and the Court will admonish the jury to disregard the last question and answer.
MR. HAFNER:
Note my objection to the Court's ruling.
[Then the Court proceeded to admonish the jury to disregard the testimony objected to by the defense.]"
LSA-C.Cr.P. art. 770 states in pertinent part:
Art. 770. Prejudicial remarks; basis of mistrial
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
. . . . .
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
. . . . .
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
LSA-C.Cr.P. art. 771 states as follows:
"Art. 771. Admonition
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial."
Ordinarily, since the challenged remark in the present case was made by a State witness, as opposed to the judge, district attorney, or other court official, article 771 is the appropriate statute. See State v. Perry, 420 So.2d 139 (La.1982).
However, when the prosecutor deliberately solicits an inadmissible statement, our courts consider the matter under C.Cr.P. art. 770:
The jurisprudence interpreting this article has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State and would also mandate a mistrial. State v. Overton, 337 So.2d 1201 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975). State v. Madison, 345 So.2d 485 (La.1977).
It appears inarguable that the prosecutor in the present case deliberately elicited the answer from Mr. Earl via the direct question "Was Mr. Camp armed?" The defendant was not charged with a violation of LSA-R.S. 14:95, illegal carrying of weapons, and the statement was obviously a reference to that (other) crime.
Nevertheless, as the Supreme Court in State v. Madison, supra, explained:
"However, it is not merely reference to 'another crime' which invokes the protection of the article, as defendant seems to suggest; the reference must be to another crime 'committed or alleged to have been committed by the defendant as to which evidence is not admissible.' "
References to "other crimes", which references do not warrant a mistrial, have been found to be admissible under the theory of "res gestae." State v. Madison, supra; State v. Belgard, 410 So.2d 720 (La.1982); State v. Wingo, 457 So.2d 1159 (La.1984). The concept of res gestae insofar as it relates to "other criminal acts" has been redefined in the relatively new Louisiana Code of Evidence. LSA-C.E. art. 404(B)(1) states:
Also see Comments (m) to LSA-C.E. art. 404.
While carrying a concealed knife is not an element of the offense charged, burglary, we find that it does constitute an integral part of the act. Earl chased the defendant from the scene of the burglary until he and Romaguera tackled him. While still at the scene, the arriving officers discovered the knife. The close proximity in time and place between the two events attests to the plan, preparation and intent of the burglar. We conclude that reference to the knife was admissible in the trial for burglary under LSA-C.E. 404(B) and, therefore,...
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