State v. Marcotte

• Decision Date: 15 May 2002
• Docket Number: No. 01-1586.,01-1586.
• Citation: State v. Marcotte, 817 So.2d 1245 (La. App. 2002)
• Parties: STATE of Louisiana v. Joseph Randy MARCOTTE.
• Court: Court of Appeal of Louisiana

817 So.2d 1245

STATE of Louisiana v. Joseph Randy MARCOTTE.

No. 01-1586.

Court of Appeal of Louisiana, Third Circuit.

May 15, 2002.

COPYRIGHT MATERIAL OMITTED

Christopher Brent Coreil, District Attorney, Ville Platte, LA, for Plaintiff/Appellee State of Louisiana.

Trent Stuart Brignac, Asst. District Attorney, Ville Platte, LA, for Plaintiff/Appellee State of Louisiana.

Gilbert J. Aucoin, Ville Platte, LA, for Defendant/Appellant Joseph Randy Marcotte.

Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The defendant, Joseph Randy Marcotte, was found guilty by a jury of attempted distribution or dispensation of a controlled dangerous substance to a person under eighteen. After denying Defendant's Motion for New Trial, the trial court proceeded to sentence him to fifteen years at hard labor, the first five years to be served without benefit of parole, probation, or suspension of sentence. The trial court also suspended three years of the sentence and ordered three years of supervised probation upon release from prison. Defendant now appeals his conviction and sentence alleging that the trial court erred in allowing the State's questioning of his post-arrest silence; in permitting its questioning of him on evidence of prior crimes, and in giving him an excessive sentence of fifteen years.

FACTS

Defendant is the father of the victim, K.T.A., who was under eighteen at the time of the offense. K.T.A. lived with his mother and did not know his father until he was approximately fourteen years old. On March 2, 2001, Defendant called K.T.A. to ask if he wanted to ride to Alexandria with him to drop off some rented movies. K.T.A. agreed and drove from his mother's residence in Evangeline Parish to his father's house in Rapides Parish, arriving at about 5:00 p.m. "

They left for Alexandria in Defendant's vehicle, dropped the movies off as planned, went to a fast-food outlet, and then took Defendant's two younger children¹ back to his residence. Defendant and K.T.A. then proceeded to Avoyelles Parish to buy beer; on the way they smoked marijuana, which Defendant supplied. When they arrived in Bunkie, in Avoyelles Parish, they purchased beer at a filling station. The pair then drove to Chicot Lodge, where they drank beer and shot pool.

In his testimony, K.T.A. said Defendant decided to return to Cheneyville to purchase a rock of crack cocaine. When they arrived in Cheneyville, they stopped at a residence. K.T.A. said he stayed in the vehicle while Defendant went and purchased four or five rocks of crack cocaine. When he returned, they drove back to Chicot Lodge. According to K.T.A., Defendant pulled over along the way and instructed him to retrieve an empty beverage can. Defendant fashioned the can into a crack-smoking receptacle and lit a rock. K.T.A. stated that they drove around and smoked all the rocks in both Rapides and Evangeline Parishes before they got back to Chicot Lodge. K.T.A. testified that they arrived back at Chicot Lodge at around midnight, shot a game of pool, and hung out. According to K.T.A., Defendant then suggested getting another rock of crack so they returned to Cheneyville where Defendant bought a few more rocks. They again drove back toward Chicot Lodge, smoking crack as they traveled; however they did not stop at the Lodge this time, but passed it and continued riding around. At this point, K.T.A. said that he began to feel "a little messed up" and passed out in the car.

Defendant proceeded to the residence of Tammy Meadows in Moreau. Meadows helped K.T.A. to a spare bed, where he again passed out. Subsequently, Defendant woke him up to take a telephone call from his mother. He assured her he was alright, but he fell asleep again as soon as the call ended. He then slept the rest of the day, until his mother called again at 2:00 p.m. Shortly thereafter, his mother and maternal grandfather arrived at the Meadows' residence to pick him up. After questioning from his mother, K.T.A. admitted to smoking crack cocaine. She then drove him to a nearby hospital, where he took a urine test. The results of the test were positive for both marijuana and crack. Shortly thereafter, they went to the Evangeline Parish Sheriffs Office, where K.T.A. reported the crime and gave a statement.

RIGHT TO REMAIN SILENT:

QUESTIONS REGARDING POSTARREST SILENCE

In his first assignment, Defendant asserts that the State improperly questioned him when he took the stand regarding his post-arrest silence. A detective interviewed him after his arrest, but he elected not to speak without a lawyer. In fact, our review of the record indicates Defendant made no statements to police, either pre or post-arrest. His argument before this court is that the State's cross-examination infringed upon his constitutional right to remain silent after arrest. In that regard, he cites State v. Stelly, 93-1090 (La.App. 1 Cir. 4/8/94), 635 So.2d 725, writ denied, 94-1211 (La.9/23/94), 642 So.2d 1309 and State v. Arvie, 505 So.2d 44 (La.1987), arguing that it is improper for the State to impeach him with his post-arrest silence.

At trial, the following colloquy took place between the State and Defendant on cross-examination:

Q. Good afternoon, Mr. Marcotte.

A. Hello.

Q. There's something I don't understand. I don't understand why I just heard that story for the first time a few minutes ago.

A. What do you mean?

Q. How long have you been in jail?

A. Uh ... about four months now.

Q. Have you ever told a deputy the story that you just told this Jury?

A. No, sir.

Q. You mean to tell me that you have been sitting in jail for four months and that very plausible explanation is the explanation as to why you are innocent and you didn't knock on the cell bars, you didn't get the attention of one of these deputies and say, ya'll got this all wrong, let me tell you what happened? You didn't do that?

A. Sir, the deputies uh ... I don't know what talking to a deputy would do. They're ... they're not lawyers or anything.

Q. You heard Joe Demourelle say and testify earlier in this Courtroom that he went and he looked around the areas and he was ... what he was attempting to do was determine whether or not [K.T.A.] was telling the truth.

A. Yes, sir.

Q. He's not in the business of arresting and jailing people who should not be in jail.

A. Yes, sir.

Q. Why didn't you tell him, hey, if you just go talk to these guys you'll find out I wasn't riding all around smoking crack-cocaine, I was at the bar?

A. Well, when he talked to me uh ... it was like the day or maybe the day after I got here. Uh ... I went in the little conference room down ... down by the jail, and uh ... he asked for a story, and did I want to talk ... talk to ... talk to anybody about it. I says, no, you know, I wanted to have a lawyer or something. I didn't know who he was. He tells me he's a detective. I didn't know that, you know, which he probably was, you know, I mean he is a detective but I didn't want to just come out and start talking. I mean I didn't know what ... I didn't know what was going on. I mean I ... I ... this ... I got arrested on my birthday. I didn't have any idea of these ... of these charges.

Q. So if you get arrested next month for robbing a bank while you were at a family picnic, your just gonna go to jail and sit in jail until it's time for your trial before you tell someone, hey, if you just go talk to the rest of my family they'll tell you that I couldn't of robbed that bank?

A. Well, I ...

Q. You'll just wait and take your chances with the Jury?

A. I've learned ... I've learned a little bit.

By Mr. West: Let me enter an objection, Your Honor. I mean, first of all, this is ... I don't know where he's going with it, you know, and ....

By ADA Brignac: I think it's simple where I'm going and I don't think it's objectionable.

By Mr. West: .... and ... you know, second of all, it breaches into the attorney-client privilege concerning what we discussed about what he should do period.

By ADA Brignac: I'm not going into attorney-client privilege. I want to know what he told the deputies and if he didn't, why not?

A. Like I said it's nothing ... I mean....

By the Court: He's on cross examination.

A. Sir?

By Mr. West: Nothing.

A. All like I said, I mean uh ... the deputies are here just to uh .... watch over prisoners. They're ... they're not people to talk to about the cases. I never thought so.

After the verdict, Defendant filed a Motion for New Trial, making essentially the same arguments for a new trial as he is making to this court: a violation of the attorney-client privilege and impingement upon his constitutional right to remain silent after arrest, under Stelly and Arvie. We note Defendant's contemporaneous objection rested only upon the attorneyclient privilege; however, it was not timely, as he had already answered a number of questions by the time his counsel objected and he failed to ask for either a mistrial or an admonition.

Initially, we note that the supreme court in Arvie denied relief due to the lack of a contemporaneous objection. Therefore, Defendant's constitutional argument could be treated as non-reviewable based upon the contemporaneous objection rule. La.Code Crim.P. art. 841. Based on our review of the jurisprudence, whether Defendant's Motion for New Trial preserved the issue for appellate review is not settled law. The first circuit has stated squarely that a motion for new trial does not preserve or revive an issue that was not preserved via contemporaneous objection. State v. Moody, 00-886 (La.App. 1 Cir. 12/22/00), 779 So.2d 4, writ denied, 01-0213 (La.12/7/01), 803 So.2d 40. The second and fourth circuits have taken a similar view. State v. Lowery, 33,905, 33,906 (La. App. 2 Cir. 2/28/01), 781 So.2d 713; State v. Green, 98-912 (La.App. 4 Cir. 9/9/98), 731 So.2d 286, opinion reinstated on rehearing, 98-912 (La.App. 4 Cir. 12/9/98), 731 So.2d 298, writ...