State v. FrancisState v. Francis
- Reporters:
- ,
- Before:
- Lottinger, Shortess, Fogg
The defendant, Michael F. Francis, was charged by bill of information with one count of armed robbery,
Subsequently, the State filed a habitual offender bill of information, alleging that the defendant was a second felony habitual offender. After a habitual offender hearing, the defendant was adjudged to be a second felony habitual offender, pursuant to
The defendant now appeals, designating three assignments of error.
FACTS
The State presented facts to establish the elements of the defendant‘s crimes with testimony from one of the defendant‘s accomplices, John C. Markey, Jr., and with testimony from the victims of the crimes, Diane Fay Howard and Donald Harris. The testimony differed in regard to what the victims had been doing when the defendant committed his crimes against them. The State contended that Markey‘s testimony concerning that time frame was correct, and that the victims lied concerning only that time frame to avoid incriminating themselves in a drug deal.
Markey testified as follows. On May 18, 1994, while in the process of helping Loyd Wise move into Wise‘s new apartment, Markey met the defendant at the defendant‘s apartment. The defendant, Wise, and Markey, subsequently went to a daiquiri shop in Mandeville, where they discussed purchasing cocaine. Wise made a telephone call and arranged for some drug dealers (the victims) to bring cocaine to the defendant‘s apartment. The victims arrived at the defendant‘s apartment at approximately 10:00 p.m. After the victims arrived, the defendant, Wise, and Markey, tested the victims’ cocaine by “snorting” it. Thereafter, the defendant went over to the couch, grabbed a sawed-off shotgun, and pointed it at the victims. The defendant ordered the victims to lie on the ground with their hands behind their backs. The defendant then grabbed a bandanna and a leather string and told Markey to tie the victims up, which he did. The defendant then “asked” Harris for the keys to Harris‘s vehicle. Harris told the defendant that the keys were in his (Harris‘s) pocket, and the defendant took the keys from Harris’ pocket. The defendant, Wise, and Markey, forced the victims into Markey‘s vehicle, and the defendant took Harris‘s vehicle. Both vehicles were driven to Abita Springs, with the Markey vehicle following the Harris vehicle. In Abita Springs, the vehicles stopped at a small store, where the defendant and Wise began dividing the cocaine between themselves. At this point, Markey told the defendant and Wise that he was getting the “`F’ out of [there],” and told Wise that if he wanted to leave, he should get into the car (Markey‘s vehicle) immediately. Wise got into Markey‘s vehicle along with Howard. The Markey and Harris vehicles were driven to a dirt road, where the victims were abandoned. During the course of the events of that night, Markey had overheard the defendant and Wise plan to abandon the Harris vehicle at the Abita Springs store. However, while Markey was driving his vehicle home, he saw the defendant drive the Harris vehicle past the Abita Springs store. During the course of the events of that night, Markey never heard either of the victims give permission to anyone to take Harris’ money, his car, or the cocaine.
The victims testified as follows. On May 18, 1994, Howard flagged down her friend Harris and asked him for a ride home. On the way to Howard‘s home, Harris stopped at a gas station for gas, and Howard exited the
Harris‘s vehicle, driven by the defendant, was subsequently pursued by a campground manager/former sheriff‘s deputy (after being driven through a campground, without its lights on). The defendant was apprehended after a high speed chase.
MOTIONS FOR MISTRIAL
In assignments of error numbers 1 and 2, the defendant challenges the trial court‘s denial of his motions for mistrial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case, the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by
In assignment of error number 1, the defendant contends that the trial court erred in denying the motion for mistrial he made after the court replaced juror Adrian C. Miller, Jr. with an alternate juror.
On the second day of trial (November 7, 1995), outside of the presence of the jury, the trial court informed the State and the defense as follows:
Mr. Miller has come to me and told me that he does not feel that he can be fair and impartial on this particular jury, that he has real difficulty with a case of this nature where he feels there is no victim of the crime, and he is indicating to me that should we require him to remain on the jury that he does not feel that he can reach a decision and we might end up with a hung jury on that account.
Miller added, “I can handle a case of good guys and bad guys, but to me it‘s all bad guys and I just don‘t think I can decide one way or the other.” Both the State and the defense subsequently questioned Miller.
The State asked Miller whether he felt that he had already decided the issues in the case without hearing the evidence and the testimony. The State then asked Miller whether he was saying that he could not render either the State or the defense a fair
Additionally, Miller added, even without regard for the charges alleged by the State against the defendant in the case, there was no chance that he would render a not guilty verdict in the case because he believed that, “what [the alleged perpetrators and the alleged victims] should be in jail for has nothing to do with these charges in this case.”
The defense objected to Miller‘s dismissal as a juror, and asked for a mistrial should the court dismiss Miller. The trial court dismissed Miller from the jury and replaced him with the first alternate juror.
The State argued there was no abuse of discretion in the trial court‘s denial of this motion for mistrial. Miller‘s comments established that he had become unable to perform his duties as a juror. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict.
In assignment of error number 2, the defendant contends that the trial court erred in denying the motion for mistrial he made after Donald Harris mentioned a statement by the defendant concerning a parole officer looking for the defendant.
On direct examination, the following exchange occurred between the State and Donald Harris:
Q. What happened when he got on Slemmer Road?
A. They stopped the car.
Q. What had happened next?
A. They asked me did I have any money.
Q. Who asked you that?
A. Mikie.
Q. Mikie Francis?
A. Right.
Q. The man right there?
A. Right.
Q. What did you tell him?
A. I told him, yes, I had eighty dollars.
Q. Did you inquire as to why he needed money?
A. Yes. No, I didn‘t inquire, but he told me why.
Q. What did he say?
A. He told me the parole officer was looking for him and they had to get out of town.
Defense counsel moved for mistrial, arguing that the statement concerning the parole officer conveyed the defendant‘s prior conviction to the jury. The State responded that the statement was an integral part of the defendant‘s crimes and was res gestae. The trial court agreed with the State and denied defense counsel‘s motion.
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. However,
There was no abuse of discretion in the trial court‘s denial of this motion for mistrial. Defense counsel argues that the statement cannot be considered res gestae because the undisclosed offense implicitly referenced by the statement was remote in time and nature to the offenses for which the defendant was being tried. However, the remoteness in time and nature of the undisclosed offense is irrelevant to the issue presented herein, i.e.,
These assignments of error are without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In assignment of error number 3, the defendant contends that he was denied the effective assistance of counsel when his appointed counsel failed to object to the improper closing argument of the prosecutor. The defendant argues that the State‘s comment in closing argument that, “We went through great thought and deliberation before turning this decision over to you, but we feel that under the law we had no other obligation other than to bring this evidence to you[,]” constituted a statement of personal knowledge of facts in issue or a statement of a personal opinion as to the justness of a cause in violation of LSBA Rules of Professional Conduct, Rule 3.4(e). The defendant then argues that trial defense counsel‘s failure to object to the comment constituted ineffective assistance of counsel.
Initially, we note that a claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Williams, 632 So.2d 351, 361 (La. App. 1st Cir.1993), writ denied, 94-1009 (La.9/2/94); 643 So.2d 139.
The United States Supreme Court has established a two-part test for review of a convicted defendant‘s claim that his counsel‘s assistance was so defective as to require reversal of a conviction. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court stated:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064.
In evaluating the performance of counsel, the “inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “The defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Immediately preceding the comment at issue, the State began its closing argument by stating, “I dare say this is probably one of the most interesting cases you will ever hear as a juror. I want to assure you that before we proceed any more the state did not bring this case to your attention lightly.” The State then pointed out the fact that the issue for determination was whether or not crimes were committed, rather than the likeability of the victims. The State discussed the testimony it presented at trial and pointed out that it had been forced to present testimony from one of the defendant‘s accomplices because it did not believe that the victims were being completely truthful. The State commented
Prior to opening arguments, the trial court instructed the jury that, “What the lawyers say in closing arguments is not evidence.” After both sides had presented closing arguments, the trial court again instructed the jury that “Statements and arguments made by the attorneys are not evidence.”
The challenged introductory comment during State closing argument, when taken in context, was based on the evidence presented rather than on personal knowledge of facts outside the record. See State v. Feet, 481 So.2d 667, 677-78 (La.App. 1st Cir.1985), writ denied, 484 So.2d 668 (La.1986). Thus, the comment was not outside the scope of closing argument, and trial defense counsel‘s failure to object did not constitute constitutionally deficient performance. Moreover, we are thoroughly convinced that the comment did not contribute to the verdict. Accordingly, we reject the defendant‘s argument that his trial counsel did not function as the “counsel” guaranteed by the Sixth Amendment. Additionally, we note that, even assuming arguendo that the comment was objectionable, and that trial defense counsel thus should have objected to the comment, the defendant was not prejudiced by the alleged deficient performance.
This assignment or error is without merit.
PATENT ERROR
Initially, we note that the minutes and the transcript of the sentencing hearing are inconsistent. Where there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La.1983). The sentencing transcript reflects that the court imposed sentence as follows:
I sentence you under the multiple offender statute, and I sentence you to, on the multiple bill for armed robbery, I sentence you to serve fifty years; second degree kidnapping still forty; second degree kidnapping again still forty. These will be on the multiple offender bill without benefit of probation, parole, or suspension of sentence.
They will still run concurrently or together. You are given credit for all time served.
....
Without benefit of probation, parole or suspension of sentence, without the benefit of good time, sentence to be served day for day.
The habitual offender information filed by the State herein, in pertinent part, provided:
That one MICHAEL FRANCIS on the 7th day of November, 1995, in the Twentysecond Judicial District Court, State of Louisiana, Parish of St. Tammany was convicted of violating R.S. 14:64 Armed Robbery and 14:44.1 2nd Degree Kidnapping, both felonies under the law of Louisiana in bill number 233687.
The said MICHAEL FRANCIS who was convicted of the felony, as set out above, in bill number 233687 is one and the same person as MICHAEL FRANCIS who pled guilty ... and that this is [MICHAEL FRANCIS‘S] 2nd felony conviction and the said defendant should now be sentenced in conformity with the provisions of LA. R.S. 15:529.1....
The habitual offender bill incorrectly stated that, under bill of information number 233,687, the defendant had been convicted of two felonies. The defendant was actually convicted of three felonies under bill of information number 233,687. Then the bill referred to “the felony, as set out above,” and sought penalty enhancement pursuant to the habitual offender law. The trial court interpreted the ambiguous bill to be seeking penalty enhancement of all three convictions under bill of information number 233,687, and consequently imposed three enhanced penalties.
Multiple convictions obtained on the same day for offenses arising out of one criminal episode should be considered as one conviction for purposes of applying the habitual offender law in sentencing. State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La. 1991). In the instant case, all three of the defendant‘s convictions under bill of information number 233,687, arose out of one criminal episode. Therefore, it was error for the State to seek enhancement of more than one of the convictions, and it was error for the trial court to adjudicate the defendant as a habitual offender and impose an enhanced penalty for more than one of the convictions.
Accordingly, the instant sentences and habitual offender adjudications hereby are vacated. If the State again elects to institute habitual offender proceedings in this matter, it must amend the habitual offender information to specifically state upon which conviction penalty enhancement is sought.
We also note the following errors in the sentences imposed, which we bring to the trial court‘s attention.
None of the sentences imposed herein were imposed at hard labor. Pursuant to
The trial court denied the defendant good time on the sentences imposed. When the terms of the statute under which a defendant is sentenced do not prohibit parole, it is error for a trial court to usurp the function of the Department of Public Safety and Corrections by addressing eligibility for parole. See State ex rel. Lewis v. State, 95-0731 (La.1/6/97); 685 So.2d 131; State v. Miller, 96-2040 (La.App. 1st Cir. 11/7/97); 703 So.2d 698. In the instant case, the defendant is not eligible for parole pursuant to
This matter hereby is remanded to the trial court for further proceedings consistent with the views expressed herein.
CONVICTIONS AFFIRMED; HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.