STATE of Louisiana
v.
Willie Earl LEE and Grady E. Harris.
Supreme Court of Louisiana.
*793 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Bobbie Stromile, Asst. Dist. Atty., for plaintiff-appellee.
S. Patrick Phillips, Bossier City, for defendants-appellants.
Per Curiam on Denial of Rehearing April 7, 1980.
DENNIS, Justice.
This criminal appeal calls upon us to decide when evidence of an attempted escape by a person in custody may be introduced as an admission of guilt by conduct of the crime for which he was arrested. Since evidence of аn attempted escape constitutes other crimes evidence, we conclude that unless the evidence forms part of the res gestae of the charged offense, it may be introduced only if it is probative of defendant's consciousness of guilt of the crime charged and its probative value outweighs its prejudicial effects. In the present case, evidence of defendant Harris' attempted escape, which occurred while he was being transported from jail to a hospital over six weeks after his arrest for the crime charged, was clearly not sufficiеntly probative of his consciousness of guilt of the crime charged to outweigh its prejudicial effects. Accordingly, the trial court's refusal to grant a mistrial because of the prosecuting attorney's reference to the attempted escape in the presence of the jury was reversible error.
Defendant, Grady E. Harris, was convicted by a jury of armed robbery, La.R.S. 14:64, and sentencеd to serve forty years at hard labor. He appealed, relying on four assignments of error. We pretermit all assignments save his complaint relative to the trial court's refusal to grant a mistrial, in which we find reversible merit.
Defendant Harris was arrested and charged with the crime of armed robbery. After he had been incarcerated in the Bossier Parish Jail for six weeks, he was taken to a hospital in Shreveport for treatment. En route to the hospital, at an interstate highway exit ramp, Harris jumped from the police car and attempted to flee, but was apprehended quickly by the оfficers. At the armed robbery trial, when the prosecuting attorney asked Harris, on cross-examination, if he jumped from the car and ran, the trial judge sustained defense counsel's objection and аdmonished the jury to ignore the remark. However, the defense motion for a mistrial was overruled.
The prosecuting attorney's remark, which referred within the hearing of the jury to another crime committed by the defendant as to which evidence was not admissible, was mandatory ground for a mistrial; an admonition to the jury to disregard the *794 remark was not sufficient. See La.C.Cr.P. art. 770. The defendant's conduct referrеd to by the prosecutor was "another crime" because an intentional departure of a person in lawful custody of any law enforcement officer constitutes simple escape. La.R.S. 14:110. Evidence of the other crime was not admissible in the present case because the attempted simple escape did not form part of the res gestae or meet the tеsts governing the introduction of other-crimes evidence.
The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. Aside from related offenses admissible аs part of the res gestae, and convictions admissible for impeachment purposes, Louisiana statutes provide for only three "other purposes" for which evidence of other criminal acts may be offeredto show intent, knowledge or system. La.R.S. 15:445, 446; State v. Prieur,
In State v. Burnette and Granger,
Similarly, evidence of an accused's escape or attempted escape may, in cоmpliance with applicable safeguards, be introduced to show his admission of guilt by conduct. By the same token, however, evidence of escape must be excluded if its admission would violatе any of the rules protecting a defendant from unfair prejudice.
Applying these rules to the present case, we conclude that the evidence of attempted escape by Hаrris did not form part of the res gestae, that it had no significant probative value as circumstantial evidence of his guilt, ad that its prejudicial effect clearly outweighed its probative value. Dеfendant's flight, a momentary departure from a vehicle transporting him from jail to a hospital for treatment which occurred over six weeks after his arrest for armed robbery, was not significantly prоbative of his guilt, since it may have been motivated by many other reasons, such as prison or hospital conditions, a simple desire for freedom, or a lack of confidence in his right to a fair аnd speedy trial. Accordingly, while there was no question of defendant's attempted escape, consciousness of guilt of the crime charged reasonably could not be inferred from his flight, and the prejudicial effect of the evidence clearly outweighed its probative value.
We reject as too broadly formulated the statements by this Court and other authorities which seem to indicate that evidence of flight is always admissible regardless of the circumstances. See State v. Graves,
The other crimes evidence was, therefore, inadmissible and the prosecuting attorney committed error clearly prejudicial to the defendant's rights by referring to it in the jury's presence. Acсordingly, upon his timely motion, the defendant was entitled to have a mistrial ordered by the trial judge. La.C.Cr.P. art. 770. Consequently, the refusal of the trial judge to order a mistrial under those circumstances was reversible error because it was prejudicial to substantial rights of the accused. La.C.Cr.P. art. 921.
The conviction and sentence of defendant Grady E. Harris are reversed and a new trial is ordered.
REVERSED AND REMANDED.
SUMMER, C. J., dissents.
MARCUS, J. dissents and assigns reasons.
BLANCHE, J., dissents.
MARCUS, Justice (dissenting).
I agree with State v. Graves,
ON REHEARING
PER CURIAM.
On February 15, 1980 we reversed the conviction and sentence of defendant Harris and remanded for а new trial, having concluded that the trial court's refusal to grant a mistrial based on the prosecutor's reference, in the presence of the jury, to an attempted escape by Harris was reversible error. We have this day considered an application for rehearing by the state and have determined that the case should not be reheard. A motion filed on behalf of defеndant Lee, however, prompts this per curiam.
In the original opinion, we were silent as to defendant Lee's conviction and sentence. A motion has been filed arguing that our judgment should be amended to show that the conviction of defendant Lee is also reversed. We conclude that this argument lacks merit. The prosecutor's remark referred to defendant Harris only. We are not сonvinced that the prejudice was such as to deprive defendant Lee of a fair trial. See La.C.Cr.P. art. 771. Moreover, the jury was contemporaneously instructed to disregard the remark and was latеr charged that "[t]here must be a separate verdict returned for each defendant. And you are not required to return the same verdict for each defendant." We have also reviewed the remaining assignments of error briefed and argued and conclude that there is no independent basis for reversal of defendant Lee's conviction and sentence.
MARCUS and BLANCHE, JJ., and de la HOUSSAYE, J. ad hoc, would grant the State's application.
Accordingly, the decree is hereby amended. The conviction and sentence of defendant Grady E. Harris are reversed and the case remanded for a new trial; the conviction and sentence of defendant Willie Earl Lee are affirmed.[1]
NOTES
Notes
[1] Because we have amended the decree as to defendant Lee, his time within which to apply for rehearing commences this date. See La.Sup.Ct. Rules, Rule 9.