State v. Landry

• Decision Date: 04 February 1987
• Docket Number: No. CR86-753,CR86-753
• Citation: State v. Landry, 502 So.2d 281 (La. App. 1987)
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Joseph LANDRY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 281

502 So.2d 281

STATE of Louisiana, Plaintiff-Appellee, v.Joseph LANDRY, Defendant-Appellant.

No. CR86-753.

Court of Appeal of Louisiana Third Circuit.

Feb. 4, 1987.

Julie E. Cullen, Opelousas, for defendant-appellant.

Morgan Goudeau, Dist. Atty. and Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and KNOLL, JJ.

KNOLL, Judge.

Joseph Landry was convicted by a jury of simple arson with damages amounting to $500 or more, a violation of LSA-R.S. 14:52.After a pre-sentence investigation, the sentencing judge ordered defendant to serve nine years at hard labor.

Defendant argues that the trial court erred: (1) in finding the State presented sufficient evidence to support a conviction of simple arson; (2) in its determination that defendant's statement to law enforcement officials was made freely and voluntarily, and was not based on the promise of leniency; (3) in its denial of defendant's motion for a mistrial when a police officer made reference at trial to the arrest and incarceration of defendant on an "unrelated charge"; (4) in its denial of defendant's motion for a mistrial when a State witness testified that defendant refused to give a statement to law enforcement officers; (5) in allowing Antonia Leday, defendant's estranged wife, to testify that defendant was "always making threats against me"; (6) in denying defendant's motion for a mistrial when a police officer testified in reference to defendant taking a polygraph test; and (7) in imposing an excessive sentence.We affirm.

FACTS

Joseph and Antonia Landry were legally separated.Antonia Landry and their two year old daughter resided in one apartment of a two story duplex in rural Swords, Louisiana which was owned by her father.On November 15, 1984, the duplex burned to the ground around 9:30 p.m.Earlier in the day defendant and his estranged wife had a heated discussion in the parking lot of Popeye's in Lafayette.Minutes before discovering the fire the next door neighbor noticed a brown Thunderbird parked across the street and a black man walking away from the building.When the neighbor heard the car drive away she looked out of the window and saw flames coming from the adjoining apartment.The owners of the duplex testified that they saw the defendant drive by in a brown Thunderbird while the fire was blazing.Although defendant's father testified that his car (a brown Thunderbird) had not been used that night, police investigation revealed that the hood was still warm around midnight.Defendant testified that he was in Lafayette at the time of the fire, however, this fact could not be substantiated with certainty at the trial.The fire caused a total financial loss of $84,000.

SUFFICIENCY OF EVIDENCE

Defendant's contention that the evidence was insufficient to convict him was neither briefed nor argued and is therefore considered abandoned.State v. Dewey, 408 So.2d 1255(La.1982).

ADMISSION OF CONFESSION

Defendant contends that the trial court erred when it allowed a written confession to be admitted into evidence.Defendant specifically contends that the statement was not made freely and voluntarily and was based upon promises made by a police officer.The State asserts that any "promises" by the officer to make recommendations to the district attorney and/or judge were not sufficient to constitute an inducement which would render the confession inadmissible.

Confessions obtained by any direct or implied promises or by the exertion of improper influence are involuntary and inadmissible as a matter of constitutional law.Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568(1897);Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194(1976).

In Louisiana the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.LSA-R.S. 15:451.The State has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary.R.S. 15:451.The admissibility of a confession is in the first instance a question for the trial judge.His conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless it is not supported by the evidence.State v. Jackson, 381 So.2d 485(La.1980).Whenever the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically.State v. Welch, 448 So.2d 705(La.App. 1st Cir.1984), writ denied, 450 So.2d 952(La.1984).Furthermore, when a ruling on a motion to suppress a confession or statement is adverse to the defendant, prior to presenting the confession or statement to the jury the State must introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.LSA-C.Cr.P. Art. 703(G).

Two persons questioned defendant after arrest.Officer Clifford Moore arrested defendant and advised him of his rights.Detective Moore testified that he advised defendant that he would make recommendations for him to the district attorney if defendant cooperated and gave a statement.Defendant then made a written confession to Idal Guillot, a Deputy State Fire Marshall.To the contrary, defendant testified that Detective Moore indicated to him that "if I wouldn't said I did it he was going to take the key and throw it away on me.He said within two hours I could've got out of jail.Him and the judge was good and he could get things to where I could get out of jail."Defendant contends such "promises" induced him to give the confession.We disagree.

The record reveals that defendant was advised of his Miranda rights prior to giving his confession.Detective Moore and Deputy Fire Marshall Guillot testified to the circumstances surrounding the confession, and squarely denied defendant's testimony that they made certain promises to induce the confession.Furthermore, the alleged promises themselves were not sufficient inducement to vitiate the free and voluntary nature of the confession.SeeState v. Vernon, 385 So.2d 200(La.1980);State v. Sterling, 453 So.2d 625(La.App. 1st Cir.1984);State v. Odds, 430 So.2d 1269(La.App. 1st Cir.1983).

We find no error in the trial court overruling the motion to suppress defendant's confession.In resolving this issue questions of fact and credibility were presented and the record fully supports the trial court's determination.

REFERENCE TO DEFENDANT'S ARREST AND INCARCERATION ON UNRELATED CHARGE

Defendant contends that the trial court erred when it denied defendant's motion for a mistrial when a police officer made reference to an arrest and incarceration of defendant on an unrelated charge.We disagree.

In response to questioning by defense counsel, Officer Idal Guillot made the following remark:

"Q.And in fact, he had been in jail for some five days by the time this statement was given is that right?

A.I think you might be in error.I think he was under arrest on an unrelated charge, if my memory serves me right.I don't think he had been arrested for this arson prior to that statement."

A mistrial is a drastic remedy and absent a showing of substantial prejudice depriving the defendant of a fair trial it is unwarranted.State v. Williams, 447 So.2d 495(La.App. 3rd Cir.1984), writ denied, 450 So.2d 969(La.1984).It has been held that unsolicited and unresponsive testimony is not chargable against the State to provide a ground for reversal of a conviction.State v. Jackson, 396 So.2d 1291(La.1981).

In State v. Henry, 461 So.2d 484(La.App. 3rd Cir.1984), writ denied, 464 So.2d 313(La.1985), we addressed a similar question as follows:

"We note first that the requirements of LSA-C.Cr.P. art 770 are not applicable to the comments to Deputy Arceneaux.Article 770 requires a mistrial in the event that a remark referring to another crime committed or alleged to have been committed by the defendant is made within the hearing of the jury by the judge, district attorney or a court official.The Louisiana Supreme Court has held that a policeman is not a court official within the meaning of the article and a mistrial is not required, but that the proper remedy would be an admonition to the jury.State v Hayes, 414 So.2d 717(La.1982).When a remark regarding prior crimes is made by someone other than a judge, district attorney or court official, an admonition is required under LSA-C.Cr.P. art. 771; however, in order to trigger the need for such an admonition the remark must be an unambiguous reference to crimes alleged to have been committed by the defendant."

See also, State v. Watson449 So.2d 1321(La.1984);State v. Williams, supra.

In the present case, the defense counsel elicited the alleged prejudicial remarks from the witness.The witness showed no intention to prejudice defendant by his statement, but rather, was attempting to clarify his answer in response to defense counsel's inaccurate summary of his statement.The record reflects that the trial judge properly admonished the jury to disregard the officer's reference to defendant's incarceration on an unrelated charge.

The record does not show that defendant suffered any undue prejudice by the officer's remark and likewise the record does not show that the trial court abused its discretion in denying defendant's motion for a mistrial.The admonition by the court was sufficient to cure any prejudice which the remark might have created and to assure defendant a fair trial.

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