State v. JohnsonState v. Johnson
The defendant, Eddie Lee Johnson, was charged by way of bill of information with the offense of armed robbery in violation of
On December 5, 1979, Due Zen Lee, the owner of another motel in Baton Rouge, sent a carpetlayer‘s helper to the Shalamar Motel to lay some leftover carpeting. This carpetlayer‘s helper was Eddie Lee Johnson, the defendant herein. When the defendant arrived at the Shalamar Motel, Mr. Liang immediately recognized him as his assailant. When he looked at him, the defendant allegedly turned away. Liang then called Lee‘s Motel. Liang informed Lee‘s wife that the man they sent over was the man who robbed him. At that time, Liang learned that the defendant had borrowed $15.00 from Lee, leaving a Jupiter wristwatch as collateral. Lee then brought the wristwatch to Liang who identified it as his own. Thereupon, they notified the police, who immediately apprehended the defendant.
ARGUMENT NO. I
In Assignments of Error Nos. 2 and 3, the defense argues that the trial court erred in failing to either admonish the jury or grant a mistrial because of the state‘s use of allegedly unconstitutional presumptions in closing argument. Defendant contends that the state‘s use of the
During closing argument, Assistant District Attorney Ralph Roy made the following comment on the defendant‘s possession of the Jupiter watch stolen from Patrick Liang during the robbery:
“Now the law says something about this. The law says that an inference that a person who in an unexplained possession of property recently stolen, that you may infer that he‘s the thief and that‘s good common sense.” (Emphasis added.)
Defense counsel thereupon objected, the jury was removed, and the parties argued the propriety of Mr. Roy‘s use of this
“... [a]nd if it be said, as it will be, that this defendant could have found this watch walking out on the street or could have unbelievably purchased this stolen item innocently from somebody else, then I say this, that the law says that evidence which is under the control of a party, the parties in this case being this defendant and the State of Louisiana, cannot [and not] produce[d] by that person, the inference
is that the evidence was not produced by that party because it would not have aided or it would not have helped that party. And I will take it on a sale situation that it is not uncommon to know the name of the person from whom you buy the property. So, if this defendant bought his watch from some third party, it would not be uncommon to expect that he would know from whom he bougth [bought] it. He may have conceivably bought it in the presence of several other people whose names he wouldn‘t know and the law would require in such situations that this would be evidence under his control. I have no way of knowing whether he bought that watch or if there were witnesses present, or, if he bought it, who he bought if from or where he bought it. I have no way of knowing that. But, if such did exist, then that knowledge would be within his control and the law says if he has that kind of evidence under his control he didn‘t offer this evidence, the inference is it was not offered because it wouldn‘t have helped him. So, clearly, this record is indicative of the case of robbery and that this defendant is the robber.” (Emphasis added.)
Although the trial court did not admonish the jury as to this comment or the previous one, it did not use either of these presumptions in its final charge to the jury.
“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth. (Emphasis added.)
This court had questioned the continuing validity of the first underscored presumption in view of the United States Supreme Court‘s recent emphasis that due process requires proof beyond a reasonable doubt of every essential element necessary to constitute the crime with which a defendant is charged. State v. Searle, 339 So.2d 1194 (La.1976); See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). However, this court has upheld the constitutionality of this presumption when the effect of the presumption is shown only to create an inference that the person in possession of recently misappropriated property was the misappropriator; and so long as the jury is adequately informed that the defendant need not testify to the circumstance of his possession of the misappropriated article any more than he need explain away any other circumstantial evidence pointing towards guilt. State v. Coleman, 358 So.2d 289 (La.1978); State v. Womack, 283 So.2d 708 (La.1973). However, this court has continually reiterated that this statutory presumption needs legislative clarification and trial courts who give instruction on it and prosecutors who argue it must exercise extreme care because they are treading on constitutionally thin ice. State v. Coleman, supra, State v. Searle, supra. In State v. Searle, supra, this court overruled the judicial extension of this statutory presumption, that the person in the unexplained possession of goods recently obtained from a burglary is presumed to be the burglar. This judicial extension of the presumption was invalidated because the presumed fact (the person is a burglar) does not beyond a reasonable doubt necessarily flow from the proven fact (he was in possession of goods recently stolen in a burglary).
In the present case the prosecutor used the words “inference” and “may infer” instead of “presumption” or “must presume.” In reference to the first
The prosecutor‘s subsequent use of another
The prosecutor prefaced his argument on this presumption with “and if it be said“, indicating that he was anticipating defense counsel‘s argument rather than defendant‘s testimony or lack thereof.
Against this backdrop it could be argued that any constitutional error was harmless beyond a reasonable doubt given the overwhelming evidence of guilt against the accused. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Unlike Sandstrom v. Montana, supra, this constitutional error did not occur during the trial court‘s final charge to the jury. See Brotherhood of Carpenters v. United States, 330 U.S. 395 at 405-409, 67 S.Ct. 775 at 782, 91 L.Ed. 973; Bollenbach v. United States, 326 U.S. 607 at 614, 66 S.Ct. 402 at 405-406, 90 L.Ed. 350. Therefore, the harmless beyond a reasonable doubt standard may still be utilized to discount any error that may have occurred.
In reference to Assignments of Error Nos. 4 and 5, defense counsel argues that the trial court erred in failing to either grant a mistrial or admonish the jury as to the prosecutor‘s arguing extraneous facts to the jury during closing argument. Defendant specifically complains of the prosecutor‘s reference to a newspaper article wherein one armed robbery victim was murdered with what he erroneously thought was a toy pistol wielded by an assailant, and his reference to alleged criminal cases wherein this court upheld the convictions. One involved an aggravated assault conviction where the defendant supposedly established that he emptied the cartridges from the revolver before wielding it, and another involved an armed robbery of a store where the defendant never removed his hand from his pocket. Defendant contends that the prosecutor was thereby playing on the fears and emotions of the jurors by trying to place the defendant in the same category with other more notorious armed robbers. Defendant maintains that the prosecutor was introducing extraneous evidence during argument and that these references were irrelevant, immaterial and highly prejudicial.
The prosecutor made references to other completely unrelated crimes that were recently reported in the newspapers as well as his interpretation of what this court has deemed sufficient to support an armed robbery conviction. These references do seem irrelevant, if not immaterial and some may be deemed prejudicial insofar as the jury may have been thereby misled as to the proof required to support an armed robbery conviction.
“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state‘s rebuttal shall be confined to answering the argument of the defendant.”
The prosecutor‘s argument does seem to exceed its proper scope in that it was not confined to the evidence admitted at trial and could have arguably appealed to the prejudice of the jury. See State v. Scott, 400 So.2d 627 (La.1981). However, these references during closing argument do not appear so prejudicial as to warrant reversal. Cf., State v. McClinton, 399 So.2d 178 (La.1981), (improper for prosecutor to invite jurors to think of themselves as victim, but not so prejudicial as to warrant mistrial); State v. Heads, 370 So.2d 564 (La.1979) (prosecutor‘s comparing defendant‘s character with that of “Son of Sam” could be improper because outside the scope of
The portions of the prosecutor‘s argument that exceed the scope of the evidence relate to the issue of armed versus simple robbery. The jury returned a verdict of guilty only as to simple robbery. Defendant has failed to establish how these arguably improper remarks influenced the jury or contributed to its verdict. It is well established that this court will not overturn a conviction on grounds of improper argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. Hicks, 395 So.2d 790 (La.1981).
This argument lacks merit.
AFFIRMED.
LEMMON, J., concurs.