State v. HarrisState v. Harris
The defendant Warren Harris was charged with the illegal possession of a 1980 Oldsmobile Cutlass, valued at $3,000.00, a violation of
FACTS
On March 14, 1989 at approximately 6:00 p.m., Desi Miles drove her black 1980 Oldsmobile Cutlass to her mother‘s house. She parked her car in front and went inside. At about 10:00 p.m., Ms. Miles looked out of the window and discovered that her car was gone.
Four days later, on March 18, 1989 at approximately 10:40 a.m., Officer Landry
The defendant testified in his own behalf that he had borrowed the car he was driving from the home of an acquaintance of his named Luther McGee. He said that he needed a car so that he could go to the bank and cash a check. He said that Luther had told him that the steering column on his (Luther‘s) car had been broken when the car was stolen from him. Luther allegedly instructed the defendant to start the car by jamming the ill-fitting keys into the ignition and pulling down on the exposed steering rod. Luther McGee did not testify at trial.
ERRORS PATENT
The defendant was sentenced as a third felony offender to three and one third years at hard labor, with credit for time servеd and court costs waived. Under
ASSIGNMENTS OF ERROR NOS. 1 AND 2
The defense contends that the trial court erred 1) in failing to declarе a mistrial when the State allegedly referred to another crime committed by the defendant during opening statement and in allowing Officer Stokey to testify on direct examination about this same alleged other сrime committed by defendant and 2) in allowing the State to exceed the scope of rebuttal by allowing Officer Stokey to testify regarding a check seized from the defendant upon his arrest.
During its opening statemеnt the State stated that Officer Stokey initially approached the defendant because he thought the defendant “was still wanted under a warrant.” The defense moved for a mistrial which the trial court denied.
Latеr, during the presentation of the State‘s own case-in-chief, Officer Stokey testified on direct that he approached the defendant initially because he thought that a warrant was outstanding for the defendant‘s arrest. Then, once he reached the defendant, he observed that the steering column on the car the defendant was driving was broken and consequently suspected that the car the defendant was driving was stolen. The defense made no objection to Stokey‘s testimony.
Because the defense made no objection to Stokey‘s testimony at trial, it cannot challenge the propriety of Stokey‘s comment on appeal.
Art. 770. Prejudicial remarks; basis of mistrial
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
The State in opening argument stated that Officer Stokey initially stopped the defendant because the officer thought that a warrant was outstanding for the defendant‘s arrest. Assuming that this comment is specific enough to constitute reference to another сrime, it was nonetheless admissible, because it was offered “to explain the sequence of events leading to the arrest of the defendant.” State v. Granier, 563 So.2d 1354 (La.App. 4th Cir.1990).
Even if the comment was improper, the error was harmless given thе fact that the defendant himself acknowledged at trial that he had been convicted of at least two felonies. See, State v. Eastin, 419 So.2d 933 (La.1982). This assignment is without merit.
The defense also contends that the State exceeded the scope of rebuttal when it was permitted to call Officer Stokey as a rebuttal witness. A review of the record reveals that the defendant, on cross-examination, was shown a check, identified as State‘s exhibit number six, and аsked if that was the check he was trying to cash at the bank when he was arrested. The defendant said that it was not. On rebuttal, the State called Officer Stokey who testified that the check, which was made payable to a Mr. and Ms. Bush, was the check seized by him from the defendant. This rebuttal testimony was thus offered to impeach the defendant‘s testimony and was proper. Additionally, the defense did not seek to offer surrebuttal testimony. This аssignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
The defense contends that insufficient evidence exists to support the conviction. Particularly, that insufficient evidence was offered to demonstrate that the defendant knew or shоuld have known that the car was stolen.
When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorablе to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). In addition, when circumstаntial evidence partly forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferrеd according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded.
At Wilson‘s trial, Stokes testified in Wilson‘s behalf. He stated that on the morning of the arrest, he had offered Wilson, an acquaintance of his, a ride to a shopping cеnter. He stated that Wilson did not know that the car was stolen. He testified that when Wilson had asked him to whom the car belonged he told Wilson that the car belonged to a friend of his. He also testified that Wilson could not see that the steering column was broken from where he sat on the passenger side.
This Court found that, notwithstanding this testimony, to which the jury obviously gave little weight, the facts that Wilson was a willing passenger in the car, that the steering column was broken and that the passenger door lock had been taken out were sufficient to prove that the defendant knew or should have known that the car was stolen.
The facts in this case are similar to those in Wilson. The defendant was found driving a car with а broken steering wheel and with keys that did not fit jammed into the ignition. His explanation that he had borrowed the car from his friend Luther, who told him that the steering column had been broken when the car was stolen from him, was not cоrroborated by Luther, who did not testify. The jury obviously did not believe the defendant. Under these facts, sufficient evidence was offered to show that the defendant knew or should have known that the car was stolen. This assignment оf error is without merit.
Accordingly, defendant Warren Harris’ conviction and sentence are hereby affirmed.
AFFIRMED.