State v. Lowe
| Decision Date | 26 February 1986 |
| Docket Number | No. 17537-KA,17537-KA |
| Citation | 485 So.2d 99 |
| Parties | STATE of Louisiana, Appellee, v. Alphonse Alvin LOWE, Jr., Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Jerry L. Jones, Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., James Allan Norris, Jr., Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
The defendant, Alphonse Alvin Lowe Jr., was charged by bill of information with nine counts of simple burglary, LSA-R.S. 14:62. The state dismissed one count because of the death of the victim. Lowe proceeded to trial before a six-member jury that found him guilty on seven of the remaining eight counts. The trial court sentenced him to five years at hard labor on each count and fined him $300 plus court costs, with thirty days in default of payment. The sentences were to run concurrently. From this conviction and sentence, Lowe has appealed, advancing eleven assignments of error. 1 For the reasons expressed, we affirm.
On the night of February 26, 1983, several automobile burglaries took place in the Monroe area. Some of the vehicles burglarized, and the items stolen, were:
(1) Black 1982 GMC pickup truck belonging to Samuel White; a purse, sheath knife, two decanters, C.B. radio, police scanner, and a .22 rifle;
(2) 1975 Ford van belonging to Mrs. Jackie Fuller; cassette player, equalizer, speakers, and a pistol;
(3) 1978 Chevrolet Chevette belonging to Mr. and Mrs. Thomas Ledford; two bags of groceries and a purse;
(4) 1979 Ford pickup truck belonging to Billy Matajowsky; a baseball glove and a pistol;
(5) 1980 Chevrolet Chevette belonging to Mrs. Robin McCann Carter; a purse, a pistol and a checkbook;
(6) 1975 Ford pickup truck belonging to Jimmy McQuillin; a .357 Ruger Blackhawk pistol;
(7) 1981 GMC truck belonging to Steve Antley; a purse and a .22 rifle.
All these burglaries occurred between 7:00 and 11:00 p.m. in parking lots along Louisville Avenue and DeSiard Street.
An eyewitness, David Johnston, reported the events surrounding the first count. He and his wife were searching for a parking place in the K-Mart and Cinema III parking lot on Louisville around 9:00. He spotted a dark-complected man, with long hair and wearing a dark shirt, standing by the window of a black pickup truck with his hand raised. When their eyes met, the suspect lowered his hand and retreated to a green Chevrolet Malibu station wagon parked nearby. The Johnstons parked and, thinking the man's conduct was suspicious, copied the Malibu's license number. They reported this to the theater manager and called the police. They then noticed the Malibu driving off toward Louisville Avenue. They also saw a passenger in the car but could offer no more of a description than that the passenger might be a woman because of the long hair. A few minutes later, Samuel White, the owner of the black pickup truck, emerged from the theater to discover the passenger window had been broken and several of his belongings had been taken.
On the basis of the suspect description, the vehicle description and the license number, the police issued a "BOLO" ("be on the lookout for") alert for the Malibu. The car's registration was checked. It was registered to Andrew Jaggers Seafood in Metairie but it actually belonged to a Mrs. Esther Lowe in Jefferson.
At about 3:45 the following morning, two Ouachita Parish sheriff deputies were leaving Jojo's, an all-night restaurant where they had taken a coffee break. They noticed the suspect vehicle parked right next to a marked sheriff's car. They confirmed the license number against the BOLO, called the police for reinforcements, and staked out the Malibu. The defendant and his companion soon exited Jojo's and got into the Malibu. As they started to drive off, police and sheriff cars surrounded and stopped them.
Lieutenant Posey and deputy Benton approached the Malibu with their guns drawn. Lt. Posey instructed the occupants to leave the station wagon. When they alit unarmed, the officers holstered their weapons. Lt. Posey identified himself, told them the reason for the stop, and gave them their Miranda rights. He asked for permission to search the station wagon. The defendant agreed but told him to be careful because there was a loaded gun under the driver's seat. Lt. Posey reached under the seat. He found no gun but rather a police radio scanner and a small pick hammer covered with tiny glass particles. Officer Johnson, who had assisted in the stop, then asked the defendant to sign a written consent to search form. He complied; he and his companion, Ms. LaComb, 2 were taken to the police station for booking. The officers had the Malibu towed to the impoundment lot where an inventory search was conducted.
The inventory turned up Samuel White's knife and decanters, Mrs. Fuller's pistol and stereo equipment, the Ledfords' groceries, Billy Matajowsky's pistol and baseball glove, Jimmy McQuillin's pistol, Mrs. Carter's pistol, and Steve Antley's rifle. Officers also found two "lock jocks," a "body puller" and two license plates, all of which might be considered the "tools" of an automobile burglar. 3
Consequently, Lowe was charged with nine counts of simple burglary on March 11, 1983. His motion to suppress inculpatory statements and the evidence produced in the search was denied on May 24, 1984. His motion to sever the numerous counts was likewise denied on September 24, 1984.
At trial, the state introduced the testimony of the eyewitness from the Cinema III parking lot and of all the officers who apprehended the defendant and searched his car. Each burglary victim testified that his vehicle had been entered without his consent and that some of its contents had been stolen. Because most of the items had been returned to their owners, the state offered photographs of the things found in the search.
The defendant and his companion, who were tried together, asserted that the eyewitness did not make a positive identification. They also produced three alibi witnesses who placed Lowe and LaComb in their hometown of Jefferson, Louisiana at around 7:00 p.m. that night, and in Brookhaven, Mississippi at around 10:15. These witnesses all said that Lowe was driving a brown pickup truck that night. The defense further asserted that Lowe is by trade a body shop technician so it was not unusual for him to be carrying "lock jocks" and "body pullers" in his station wagon. The defense finally argued that a burglar with a car full of stolen goods would not park right next to a sheriff's car. After a four-day trial, the six-member jury found the defendants guilty on seven of the eight counts.
The defendants subsequently filed motions for a new trial. The trial court granted Ms. LaComb's but denied Lowe's. Thus only Lowe has perfected this appeal.
In this assignment, Lowe claims the trial court erred in denying his motion for a mistrial when the assistant D.A. allegedly referred to his failure to take the stand in his own defense. LSA-C.Cr.P. art. 770(3). The basis of the motion was a lengthy analogy the prosecutor presented in his closing argument. He said, in essence, that Lowe's case was like that of a parent catching the child who ate the cherry pie after strict instructions not to. The parent finds the fork and pie plate, and telltale cherry stains on the child's clothes, but the child denies eating it. Rather, the child claims he was with three of his friends at the time so he can't be punished. He denies knowing who took the pie and then says, "I am not going to tell you." R.p. 707. This, according to Lowe, was a direct reference to his failure to take the stand.
LSA-C.Cr.P. art. 770 provides in 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:
* * *
* * *
(3) The failure of the defendant to testify in his own defense; * * *
Despite Lowe's assertion to the contrary, the prosecutor's remarks here were not a direct reference. 4 The prosecutor only referred to the hypothetical child's refusal to speak. Applied to Lowe, the statement was indirect.
Although article 770(3) seems to mandate a mistrial for either a direct or an indirect reference, our courts have repeatedly held the indirect reference to a different standard for mistrial. The indirect remark must be intended to draw or focus the jury's attention to the defendant's failure to testify or to present evidence in his behalf. State v. Smith, 433 So.2d 688 (La.1983); State v. Frank, 344 So.2d 1039 (La.1977); State v. Bentley, 219 La. 893, 54 So.2d 137 (1951); State v. Ashley, 463 So.2d 794 (La.App. 2d Cir.1985).
The statements here were obviously intended not to emphasize Lowe's failure to testify but to show the strength of the state's circumstantial evidence against the weakness or incompleteness of Lowe's defense. This is a permissible mode of argument. See State v. Smith, supra at 696; State v. Latin, 412 So.2d 1357 (La.1982); State v. Perkins, 374 So.2d 1234 (La.1979).
There were many witnesses the defense could have called to fortify its case. Mrs. Lowe, the defendant's mother and the owner of the Malibu, did not testify. She could have established why her car was not at her home in Jefferson Parish and why her son had to collect it in Monroe. The defense also did not produce the person in Monroe who allegedly delivered the car to Lowe. This person could have established exactly when Lowe got the car and whether it was "loaded" before Lowe took possession. And even assuming the credibility of the alibi witnesses, the defense produced no one to say what became of the brown pickup truck that Lowe and LaComb drove through Mississippi. This would have helped the alibi. All this...
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