State v. McIntosh

• Decision Date: 28 February 2019
• Docket Number: NO. 2018 KA 0768,2018 KA 0768
• Citation: 275 So.3d 1
• Parties: STATE of Louisiana v. James Dewitt MCINTOSH, II
• Court: Court of Appeal of Louisiana — District of US

275 So.3d 1

STATE of Louisiana

v.James Dewitt MCINTOSH, II

NO. 2018 KA 0768

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: FEBRUARY 28, 2019

Warren LeDoux Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana

Bruce Gerard Whittaker, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant-Appellant, James Dewitt McIntosh, II

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

HIGGINBOTHAM, J.

Defendant, James McIntosh, was charged by bill of information with two counts of distribution of heroin, a violation of La. R.S. 40:966 (counts one and two), and two counts of distribution of marijuana, a violation of La. R.S. 40:966 (counts three and four). He pled not guilty. Defendant filed motions to suppress and exclude testimony, which were denied after hearings. After a trial by jury, the defendant was found guilty as charged. The trial court imposed concurrent terms of twenty-five, twenty-five, five, and five years imprisonment at hard labor. Following the State's filing of a multiple offender bill of information on counts one and two, defendant and the State stipulated to his being a second-felony offender on those counts, and the trial court vacated defendant's sentences on counts one and two, and resentenced defendant to concurrent terms of thirty years imprisonment at hard labor. The defendant now appeals.

STATEMENT OF FACTS

In late 2015, Louisiana State Police ("LSP") Trooper John Heath Miller ("Trp. Miller") received a tip through Crime Stoppers regarding narcotics sales occurring in St. Tammany Parish. After confirming the tip with some of his confidential sources, he began an investigation into defendant. Trp. Miller brought in an undercover officer, LSP Trooper Sarah Gilberti-Abbott ("Trp. Gilberti"), to coordinate with a confidential source to provide an introduction to defendant and negotiate a $ 140.00 narcotics purchase. The first meeting was arranged to take place at a Rouses's parking lot in Covington on November 19, 2015, and was to be for the purchase of heroin and marijuana. With other law enforcement officers surveilling the location, defendant and Trp. Gilberti parked side by side. The confidential source, who was with Trp. Gilberti, got out of the vehicle and conducted a hand-to-hand transaction for marijuana and heroin within the view of Trp. Gilberti. The narcotics were recovered by other troopers immediately thereafter and tested at the State Police laboratory to confirm their authenticity. Later fingerprint analysis determined defendant was the source of a fingerprint on a bag of marijuana obtained during the November 19, 2015 drug buy.

On December 1, 2015, Trp. Gilberti and the confidential source again arranged to meet defendant in order to purchase heroin and marijuana at the Sonic Drive-in in Mandeville where defendant was employed. This portion of the investigation was partially recorded, and the video recording was played for the jury. While waiting for a third party to obtain the drugs from another location for defendant to sell to Trp. Gilberti, defendant and the confidential source spoke about text messages that they had sent to each other earlier in the day. The transaction was taking far longer than anticipated, and the confidential source was complaining about how she thought it had been set up well in advance through texts between them earlier in the day. Shortly thereafter the playback stopped due to a dead battery on the recording device. The third party returned in defendant's car, and defendant returned to Trp. Gilberti's vehicle. Defendant then conducted a hand-to-hand transaction, taking money from Trp. Gilberti and handing her heroin and marijuana in exchange. The narcotics were recovered by the investigating troopers soon after and were tested to confirm their authenticity.

ASSIGNMENT OF ERROR # 1: OTHER CRIMES EVIDENCE

In assignment of error number one, defendant contends that the State improperly introduced other crimes evidence when it purposefully sought to highlight the fact that defendant was already incarcerated for an unrelated offense at the time the arrest warrant for the instant offenses was executed. Defendant unsuccessfully requested a mistrial after the alleged prejudicial comments. The State asserts that by failing to object to the initial mention of defendant being arrested for another offense, defendant effectively waived the claim on appeal. Moreover, the State argues that trial counsel "opened the door" during cross-examination.

A mistrial under the provisions of La. Code Crim. P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of a witness who is not a court official make it impossible for a defendant to obtain a fair trial. State v. Kitts, 2017-0777 (La. App. 1st Cir. 5/10/18), 250 So.3d 939, 968. However, an impermissible reference to another crime deliberately elicited of a witness by the prosecutor is imputable to the State and mandates a mistrial under La. Code Crim. P. art. 770. State v. Lawson, 2018-0382 (La. App. 1st Cir. 11/8/18), 2018 WL 5876815 *11 (unpublished). Because a mistrial is a drastic remedy that should be granted only when a defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial, "mere possibility of prejudice is not sufficient." State v. Caminita, 2016-0121 (La. App. 1st Cir. 9/16/16), 203 So.3d 1100, 1106, writ denied, 2016-2045 (La. 9/6/17), 224 So.3d 988. A reviewing court should not reverse a defendant's conviction and sentence unless the error has affected the substantial rights of the accused. See La. Code Crim. P. art. 921. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal without finding an abuse of that discretion. State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 933, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Pierre, 2012-0125 (La. App. 1st Cir. 9/21/12), 111 So.3d 64, 68, writ denied, 2012-2227 (La. 4/1/13), 110 So.3d 139 : see also La. Code Crim. P. art. 770(2). However, when counsel "opens the door" to the complained-of subject matter, "the other party can then explore the subject fully." State v. Hunt, 310 So.2d 563, 568 (La. 1975). Prior notice of intent to disclose other bad acts is not required when the door has been so opened. State v. Marcotte, 2001-1586 (La. App. 3rd Cir. 5/15/02), 817 So.2d 1245, 1253.

During cross-examination, defense counsel asked Trp. Miller if he had planned on purchasing any more drugs from defendant, to which Miller responded that he had. When asked if he made any more purchases, Trp. Miller responded that he could not make any more purchases because defendant was incarcerated. Defense counsel made no objection. Later, while on redirect examination, Trp. Miller, in response to the State's questions, revealed that the narcotics investigation stopped because defendant was arrested for something else and was incarcerated in the St. Tammany Parish Jail. At that point, defense counsel objected and moved for mistrial. The trial court found defense counsel had "opened the door" by asking why the investigation had stopped, thereby revealing defendant's unrelated incarceration. The trial court did note, however, that the door was "not opened to every other witness."

Here, it is uncontested that defense counsel asked Trp. Miller why no more undercover narcotics purchases were made in the instant investigation. Thus, Trp. Miller's original answer was not elicited by the State. The subsequent State questioning fell within the ambit of redirect examination to clarify, and respond to, points made during cross-examination by defense counsel.

Moreover, even had defense counsel not "opened the door" to further testimony regarding defendant's custody status at the time of his arrest on the instant charges, that reference alone was not sufficient to warrant a mistrial. See State v. Stevens, 2013-1162 (La. App. 3rd Cir. 6/18/14), 140 So.3d 1267, 1282 writ denied, 2014-1530 (La. 12/8/14), 156 So.3d 42 ; cf. State v. Hayes, 2010-685 (La. App. 5th Cir. 5/24/11), 70 So.3d 27, 40, writ denied, 2011-1370 (La. 2/3/12), 79 So.3d 1024.

The trial court in the instant case did not abuse its considerable discretion in finding that defendant opened the door to Trp. Miller's testimony about why the investigation ended, giving the State an opportunity to prompt more testimony regarding the procedural details of why the investigation ended when it did. This claim is without merit.

ASSIGNMENT OF ERROR # 2: CONFRONTATION ERROR

In his second assignment of error, defendant contends that the trial court erred in denying his pre-trial motions attempting to exclude evidence consisting of the confidential source reading on the surveillance recording text messages alleged to have come from defendant. With the confidential source unavailable at trial to cross-examine, defendant asserts his right to confrontation of witnesses was abridged by the trial court's ruling at the pre-trial hearing. At the hearing, the State argued that the statements by the confidential source were not made in anticipation of using them at a subsequent prosecution, and alternatively that they were being introduced for context, not for their actual content, and were consequently not hearsay. The trial court ultimately found the statements were neither testimonial, nor hearsay, but instead the confidential source's "words under surveillance."

The Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 16 of the Louisiana Constitution guarantee a criminal def...