State v. CariteState v. Carite
Julеs Carite was charged in a bill of information with possession of two marijuana cigarettes. (
During the closing argument tо the jury the assistant district attorney, as attorney for the State, said:
“Because the defendant has not been convicted before does not mean it’s the first time he was arrested or possessed narcotics.”
Defense counsel objected and asked for a mistrial. The trial judge overruled the motion and instructed the jury as follows:
“The jury is instructed to disregard any argument of the district attorney with respect to any arrest on the part' of this defendant, Disregard that, gentlemen, and put it out of your minds as not having been made.”
At this juncture counsel for the accused’ reserved a bill of еxceptions.
Under Article 381 of the Code of Criminal Procedure, in making the closing argument counsel “ * * * must confine themselves to matters as to which evidence has been received, or of which judicial cognizance is taken, and to the law applicable to the evidence; and counsel shall refrain, from any appeal to prejudice.”
Additionally, Article 495 of the Code of Criminal Procedure, as amended, provides:
“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness * * * and no witness, whether he be defendant оr not, can be asked' on cross-examination whether or not' he has ever been indicted or arrested,, and can only be questioned as to conviction, and as provided herein.” (Emphasis supplied.)
According to the exрlicit provisions of the Code of Criminal Procedure, set out-above, it was error for the State’s attorney in the сlosing argument in the instant proceeding to refer to the possibility of other arrests, involving Carite, as: evidence of this nature could not have been,, and was not, introduced during the trial.. The State’s attorney very fairly concedes-this еrror. However, it is the State’s contention in answer to this bill that the error which its attorney committed was effectively сured by the judge’s instructions to the.' jury. In support of that contention reliance is had upon State v. Maney,
None of thе cases cited are precisely in point, but they generally support the proposition applicаble to this case, also announced in State v. Dowdy,
“The general rule is that instructions of the court at the proрer time nullifies the prejudicial effect of an improper statement made by a prosecuting officer during the course of the trial. See State v. Brown,166 La. 43 ,116 So. 588 . It is only in extreme cases, we believe, that the prejudice cannоt be so removed * *
The question thus presented is whether prejudice resulted to the accused by the erroneous statement made in the closing argument of the assistant district attorney and was that prejudice .removed by the cоurt’s instructions to the jury to disregard the statement.
In State v. Maney, supra, we observed that the propounding of a question by the district attorney to the accused on trial ■concerning previous arrests in contravention of Article 495 of the Code of Criminal Procedure was an error which was cured by the court’s instructions to the jury to ■disregard the question. In thаt case the ■question was withdrawn by the district attorney and the jury was instructed to disregard the question. There the accused was not required to answer the question. But the case before us is different; the remarks of the district attorney were made in closing argument to the jury concerning .a previous arrest contrary to an express statutory provision prohibiting just that .and beyond the scope of the evidence. Such a remark in the argument to the jury is more than a question, it amounts to a statement of fact. It is an unfair comment upon a fact concerning which there is no evidenсe.
The district attorney’s closing argument is the final impression implanted in the minds of the jurors by the adversary counsel in the trial, which the accused has no opportunity to rebut either by taking the stand himself, calling witnesses or producing other evidence — not even by denunciation of the remark by his own counsel’s argument.
In this case the remarks of the State’s аttorney are so clearly improper that, it would impeach “the legal learning of the attorney to say thаt he did not know that they were manifestly improper and wholly unjustifiable”, being prohibited, as those remarks were, by a clеar legislative pronouncement. People v. Jones,
If the provisions of Article 495 of the Code of Criminal Prоcedure are to have any effect at all they must be applied in this case. That codal article sought to clothe the accused with a mantle of protection against any evidence of prior arrests fоr the reason that the inference and innuendo flowing therefrom are prejudicial. If the jury is told that the accused was arrested for possession of narcotics once, the implication is that the accused would do it аgain. It furthermore destroys the accused’s credibility in the minds of the jury. Any other result would fail to comprehend the .realities of the case and the prejudice to the accused ensuing from such a statement which the legislature in adopting the codal article clearly recognized. Code of Crim.Proc. art. 557. The prejudice to the acсused created by the remarks could not
For the reasons assigned the conviction and sentence are annulled and set aside and the accused is granted a new trial in accordance with law.