State v. Nolan

• Decision Date: 05 June 1987
• Docket Number: No. CR 86-658.,CR 86-658.
• Citation: 503 So.2d 1186
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Mervine NOLAN, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

503 So.2d 1186

STATE of Louisiana, Plaintiff-Appellee, v. Mervine NOLAN, Defendant-Appellant.

No. CR 86-658.

Court of Appeal of Louisiana, Third Circuit.

March 4, 1987.

Rehearing Denied March 31, 1987.

Writ Denied June 5, 1987.

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Linda Veazey, Abbeville, for defendant-appellant.

Louis Garrot, Asst. Dist. Atty., Abbeville, for plaintiff-appellee.

Before GUIDRY, STOKER and LABORDE, JJ.

LABORDE, Judge.

Appellant, Mervine Nolan, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. He was tried by jury and found guilty of armed robbery. He was billed as a multiple offender and found to be a multiple offender. He was sentenced to 35 years at hard labor without benefit of parole, probation or suspension.

FACTS

On February 21, 1984, two black men, wearing masks and armed with a .38 caliber pistol, entered the Handi-Mart on West Port Street in Abbeville, Louisiana. Elizabeth Hargrave was the clerk on duty at the store. While one of the men told her to lie on the floor, the other opened the cash register and took $127. The perpetrators then left the store. Elizabeth Hargrave quickly notified police of the incident. Later that night, the police talked to defendant, his brother, Virgil Nolan, and their nephew, Thaddeus Nolan, while investigating an accident in front of the Brief Encounter Lounge. The three men told police that they had run out of gas and were waiting for a ride. Reginald Harris, a friend drove defendant and Thaddeus to Virgil's vehicle. Police officers were there and asked Reginald for permission to search his car. The police found $81 under the floor mat in the back seat of Reginald's car. Virgil, Mervine and Thaddeus were then taken to the police station. The key to the cash register at the Handy-Mart and $46 were recovered from Virgil. A search of Virgil's vehicle uncovered a .38 caliber pistol, a beige sweater and a maroon windbreaker, items which the store clerk had identified as having been worn by the robbers. The police confronted Thaddeus Nolan with this evidence; soon he gave a statement implicating himself, Virgil and Mervine in the robbery.

ASSIGNMENT OF ERROR NO. 1

Appellant claims that the trial court erred in denying a mistrial where two judges presided over the trial of defendant. He argues that La.C.Cr.P. art. 775 mandates a mistrial when two different judges preside over the same trial. He argues that he was particularly prejudiced in that the second judge ruled that the make-up of voir dire jurors was valid without having heard the evidence presented the day before to the first judge.

A mistrial may be ordered when it is physically impossible to proceed with the trial in conformity with law. La.C.Cr.P. art. 775(5). Mistrial is a drastic remedy; unless mandated by the Code of Criminal Procedure, it is committed to the sound discretion of the trial judge and is warranted only if substantial prejudice results which would deprive a defendant of a fair trial. State v. Jarman, 445 So.2d 1184, 1187 (La.1984).

In the instant case, Judge Byron Hebert began the trial of defendant on September 10, 1985. The voir dire examination was begun and several jurors were sworn in. At the end of the day, the court was hearing evidence on the composition of the jury venire. That evening Judge Hebert's brother died. Judge Allen Babineaux took over trial the next morning. An objection was made by defense counsel to the fact that two judges presided over the trial of defendant. Judge Babineaux heard the remainder of the evidence regarding the composition of the jury venire. He denied defendant's motion for a mistrial.

It is conceded in the majority of criminal proceedings that only one judge will preside over the trial. However, the fact that more than one judge does preside is not deemed a mandatory ground for mistrial anywhere in the Code of Criminal Procedure. There is nothing which would necessarily prejudice a defendant in having two judges preside over his trial, especially in the instant case where the first judge stepped down after just the first day of voir dire. There is nothing which would indicate that defendant's right to a fair trial was prejudiced in this case. Judge Babineaux did rule on a motion for which he did not hear all the evidence, but there appears to be no error in his ruling. Since no substantial prejudice resulted to defendant, the trial judge did not abuse his discretion in denying a mistrial on this ground. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

Appellant claims that the trial court erred in denying a mistrial on the ground that the petit jury venire was faulty since so few of the potential jurors summoned appeared and only two of those who appeared were black. He argues that the jury venire was improperly composed and indicated a systematic exclusion of blacks.

At the hearing, the defendant presented evidence that the names composing the jury venire are randomly selected by a computer without regard to any constitutionally protected category. There is no evidence that the composition of the jury venire was selected in an improper manner.

The cases defendant cites which hold that the prosecutor cannot systematically exclude blacks from the jury are completely inapplicable to this case. Defendant admits in his brief that no blacks were even called as jurors during voir dire. Thus, the prosecutor could not have used peremptory challenges on them. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

Appellant claims the trial court erred in denying a mistrial where the bill of information was read twice to the jury. He argues that when the bill of information was read the second time to reflect corrections that had been made in it, it created a prejudice in the minds of the jurors.

The bill of information, as first read, stated that the victim of the robbery was Handy Mart. Since a business is not a proper victim for a robbery, the state amended the bill to reflect that Elizabeth Hargrave had been robbed. The amended bill of information was also read to the jury. The trial judge admonished the jury that the reading of the bill of information was a purely procedural matter and was in no way a reflection of defendant's guilt or innocence.

Since it is a procedural formality it was completely proper for the judge to order the corrected bill of information read to the jury. The fact that an improper bill was also read to the jury does not appear to prejudice defendant's right to a fair trial. The bills were substantially the same. The jury was warned not to give any weight to the fact that the bill was read twice. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4

Appellant claims that the trial court erred in denying a mistrial where correct "rap sheets" were not provided on Reginald Harris and Thaddeus Nolan, witnesses called by the State at trial, being in violation of defendant's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Louisiana has adopted the rules of Brady and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). It is error for the trial court not to order the prosecutor to respond to specific requests of the defense for conviction records of witnesses. State v. Henderson, 362 So.2d 1358, 1363 (La.1978); State v. Harvey, 358 So.2d 1224, 1232 (La.1978). In Henderson and Harvey, the Louisiana Supreme Court remanded the case to the trial court to determine whether the evidence suppressed would, upon its evaluation in the context of the entire record, create a reasonable doubt as to the defendant's guilt. Defendant is not entitled to a mistrial, but only to a hearing to determine whether the evidence withheld prejudiced him.

In the instant case, defendant complains that he was not provided with the rap sheets of Reginald Harris and Thaddeus Nolan. Defendant was provided a rap sheet for Reginald Harris, but there was some question as to its validity. However, even if Reginald Harris had a record of convictions and was cross-examined about it, it would not have changed the verdict because all of Mr. Harris' testimony was admitted by the defendant when he testified.

Reginald Harris testified that he received a phone call from Thaddeus Nolan to come and pick him up in front of the Sportsman in Abbeville. When he got there, he picked up Mervine and Thaddeus. Mervine sat in front and Thaddeus in back. They went down the street to Virgil's car. The police were with Virgil at Virgil's car. They asked permission to search Reginald's car. The police searched the car and found money under the floormat in the back seat. The defendant related the same set of facts on direct examination. Impeachment of Reginald Harris would have added nothing to the case.

Prosecution provided defense counsel with a copy of Thaddeus Nolan's rap sheet prior to his testifying. Defense may not have received it earlier than this, but it would appear to be harmless error since he did not have any prior convictions. Looking at this new evidence in the context of the record, it would not shed any doubt on the defendant's conviction.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 5

Appellant claims that the trial court erred in allowing as evidence statements allegedly made by Mervine Nolan to Thaddeus Nolan, such being in violation of the hearsay rule. He argues that the statements were not inculpatory; therefore, the admission exception to the hearsay rule would not apply.

At trial, Thaddeus Nolan testified that while he was in jail Mervine and Virgil asked him to "take the rap" by himself. One of the exceptions to the prohibition against the use of hearsay is that confessions and admissions are admissible. State v. Rome, 469 So.2d 1150, 1152 (La. App. 4th Cir.1985), remanded for resentencing, 489 So.2d 342 (La.App. 4th Cir. 1986). An admission is a statement which does...