State v. Collins

• Decision Date: 24 September 1973
• Docket Number: No. 53252,53252
• Citation: State v. Collins, 283 So.2d 744 (La. 1973)
• Parties: STATE of Louisiana v. Reuben COLLINS.
• Court: Louisiana Supreme Court

Page 744

283 So.2d 744

STATE of Louisiana v. Reuben COLLINS.

No. 53252.

Supreme Court of Louisiana.

Sept. 24, 1973.

Rehearing Denied Oct. 26, 1973.

Carrick R. Inabnett, Monroe, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Counsel to Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Monroe, for plaintiff-appellee.

MARCUS, Justice.

Reuben Collins, after being charged in a bill of information with the crime of simple burglary, R.S. 14:62, was tried before a jury, found guilty and sentenced to nine years at hard labor. He now appeals his conviction and sentence, relying upon four bills of exceptions for reversal thereof.

We find merit in Bills of Exceptions Nos. 3 and 4 and grant a new trial.

Defendant was arrested and charged with two burglaries in Monroe, Louisiana. The first involved the ARCO Service Station on the night of July 10--11, 1972; the second one was at the Green Light Cafe on July 31, 1972.

On August 1, 1972, Collins confessed to both of these burglaries, which confessions were taped at the same sitting. The Green Light Cafe confession was taped at 2:05 P.M., and the ARCO confession was taped at 2:17 P.M. Prior to making the confessions, defendant signed a written waiver of his constitutional rights. Additionally, before making each statement, he was advised of his constitutional rights. Apparently, certain questions were asked on the first tape that were not repeated on the second. Also, a more complete version of the Miranda warnings was recorded on the first tape.

This appeal is from the trial of the ARCO Service Station burglary.

Defendant took the stand on his own behalf during the trial of this matter. According to the testimony attached to Bills of Exceptions Nos. 3 and 4, while Collins was being cross-examined by the district attorney, he was asked:

'Q. Isn't true that before you gave that statement you gave another statement?

'A. Before I gave that statement I gave another statement?

'Q. That is right. That is my question.

'A. Well, I wouldn't say no because for all I know he could have had the tape on then.

'Q. Well, let me read you a statement, a portion of a statement, that was taken starting at 2:05. Now, I want to remind you that that tape we heard was started at 2:17. Now, let me read to you from the page--'

It was at this time that defense counsel objected to the reading of the earlier statement made in connection with the Green Light Cafe burglary on the grounds that it was related to another crime and was irrelevant. The trial judge overruled the objection based upon the district attorney's contention: 'I am just using it for impeachment purposes. He has denied making it. He said he didn't know if he made it or not.' At this point, Bill of Exceptions No. 3 was reserved.

The district attorney proceeded to read from defendant's Green Light Cafe confession, but chose to use only the portion in regard to the Miranda warnings. However, in using this portion of the defendant's 2:05 P.M. statement, a reference was made to the fact that it was given in connection with the Green Light Cafe burglary and also contained an acknowledgment by defendant that he had been arrested and charged with that burglary. Defense counsel moved for a mistrial on the same grounds that he had previously objected to the introduction of the evidence. His motion was denied, and he reserved Bill of Exceptions No. 4.

Defendant relies on Article 770 of the Code of Criminal Procedure in urging that reference by the district attorney to defendant's confession of the Green Light Cafe burglary constituted a mandatory ground for a mistrial. Article 770 provides in pertinent part:

'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;

We conclude that, since the reference made by the district attorney to the other burglary was not admissible in evidence, it constituted a mandatory ground for mistrial.

Our conclusion is based upon the following reasons:

In the first place, the parties concede that reference to the other crime was not used to show knowledge, system or intent. We agree as there is no evidence in the record before us to warrant a conclusion that reference to the Green Light Cafe burglary was admissible to show knowledge, system or intent under R.S. 15:445 or R.S. 15:446.

The State contends that defendant denied being questioned as to his educational background as well as being advised of his constitutional rights at the time of his confession. Hence, it is asserted that it was necessary to use a portion of the 2:05 P.M. statement for impeachment purposes, and the reference to the Green Light Cafe burglary was done only to comply with the law requiring that a foundation be laid, calling attention of the witness to the time, place and circumstances surrounding the alleged prior inconsistent statement. R.S. 15:493.

While the record before us is not complete and does not show that defendant denied either that he was asked about his educational background or that he was advised of his constitutional rights,¹ we will assume that there was sufficient testimony during defendant's direct examination to warrant the use of the portion of the 2:05 P.M. statement for impeachment purposes. However, we are of the opinion that it was unnecessary for the State to have used that part of the statement which made reference to the Green Light Cafe burglary. A proper foundation could have been laid without making such a reference.

It is well settled that when the accused voluntarily takes the stand as a witness on his own behalf, he is subject to cross-examination upon the whole case. R.S. 15:462. He is also subject to impeachment, as any witness, by the showing of a prior inconsistent statement where that statement is relevant to a material fact in the case. The law is quite express that no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested. R.S. 15:495.

R.S. 15:495 provides:

'Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein. As amended Acts 1952, No. 180, § 1.'

In State v. Prieur, La., 277 So.2d 134 (1973), we stated the...