State v. MerrickState v. Merrick
Defendant was convicted of distribution of cocaine in violation of
Early in 1989 the Plaquemines Parish Sheriff‘s Office conducted “Operatiоn Crackdown” which was an undercover operation designed to apprehend individuals selling crack cocaine. Officer Illg was in charge and Officers Bolar and Augustine from the Gretna Police Department participated.
On April 7, 1989 the three officers met and Illg sent the othеrs to JU‘s lounge in Sunrise to try to make drug purchases. This lounge was known for drug sales. Bolar and Augustine had been going to the lounge in order to gain acceptability and on this night the defendant approached Bolar shortly after they arrived and asked him if he wanted to buy some drugs. Bolar acсompanied the defendant down a hall to a back room where he told the defendant he wanted to buy some crack. As he entered the hall with the defendant Augustine got a look at the defendant. In the back room defendant produced a match box containing
A review of the record for errors patent reveals none.
Defendаnt‘s first assignment of error addresses jury selection from a venire from which a jury had previously been empaneled and excluded from the venire for his case. He first argues that such a procedure is not authorized
This procedure cannot be said to be in violation of the requirements of
By his next assignment defendant accuses the state of violating
Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody.
At the beginning of the second day of trial, when the jury had been selected the day before and before the first witness was called, the prosecutor informed the court that just the previous afternoon he learned from the records in the clerk‘s office that defendant had been convicted of carnal knowledge. Sometime before the trial the state in response to discovery had furnished defendant‘s attorney with a rap sheet which showed an arrest for carnal knowledge but not a conviction.
There is no reason to believe that the prosecutor himself knew about the conviction before checking the clerk‘s records. Nor is there any reason why defendant‘s counsel could not have checked those records since he had knоwn about the arrest for some time. No one was in a better position than defendant himself to know what became of his arrest and to tell his counsel about it. Consequently, the late disclosure caused no prejudice to defendant‘s case.
Defendant next assigns error in the trial court‘s denial of his motion for a mistrial during the state‘s direct examination of Officer Illg. Defendant made an issue over his testimony on direct examination that Bolar had picked defendant‘s photograph from an array of four shown to him by Illg. On cross examination defendant
Q. And the individuаls that the photographs are of, how do you determine which photographs to include for a particular area that you are working?
A. Subjects that we know in the bar, that we get information of, subjects hanging out in the bar.
Q. Your other narcotics people tell you who they had seen there other nights?
The defense objected at this point on the ground that the State was attempting to elicit testimony from Illg that the defendant was a suspect or known to be involved in criminal activities. The trial court overruled the objection finding that “the line of questioning is appropriate with how he had the photographs in his possession. He explained in his earlier testimony the modus operandi of one of these undercover operations. And as I understand it, this is part of it.”
The questioning continued:
Q. Agent, Illg, my last question to you was something along the lines, the photographs that you have to show the undercover officers when they come back from a buy, where do you get those photographs from?
A. Those photographs are obtained through the Sheriff‘s office.
Q. How did you get those photographs?
A. From detectives, from the jail, from the prison, from Belle Chasse. When a subject is arrested fоr various things, a photograph is taken of the subject. And one of those photographs is forwarded to the narcotics office.
Defendant moved for a mistrial which was denied. No admonition was requested or given.
Defendant argues that the trial court was required to declare a mistrial by
The fact that the prosecutor asked no such questions on direct examination indicates that he did not intend to elicit this information. Neither is such an intent evident from the first few questions quoted above. However, when the prosecutor asked the remaining questions after the bench hearing on defendant‘s objection such an intent seemed to surface.
A mere reference to another crime will not trigger the article; the reference must be to another crime committed or alleged to hаve been committed by the defendant as to which evidence is not admissible. State v. Madison, 345 So.2d 485, 494 (1977). Thus, in State v. Harris, 258 La. 720, 247 So.2d 847, 849 (1971) the court remarked, “We doubt that the policeman‘s reference to obtaining the photographs [including defendant‘s] at the Bureau of Identification amounts to the assertion of a criminal record. Also, in State v. Calzadilla, 455 So.2d 1244, 1248 (La.App. 4th Cir. 1984), this court found that a police officer‘s testimony that he knew the defendant from another case did not amount to the assertion of a prior criminal record of the defendant.
In State v. Douglas, 389 So.2d 1263, 1266 (La.1980), the officer testified that after getting a description of the robber he got a repоrt that a man fitting the description had been seen in a nearby bar and this man had recently been released from Angola. This referred to the defendant. The court rejected defendant‘s argument that the trial
An investigating officer is a witness, but is closely related to the district attorney in presentation of the prosecutor‘s case. Therefore, a prejudicial remark by an experienced police officer should be viewed with considerable concern as to the fаirness of the trial, and may require granting a mistrial, especially if the remark was precipitated by or should have been anticipated by the district attorney. Nevertheless, the decision as to the necessity of granting a mistrial in these circumstances was left to the sound discretion оf the trial court. See State v. Madison, 345 So.2d 485 (La.1977); State v. Brown, 322 So.2d 211 (La.1975); State v. Schwartz, 354 So.2d 1332 (La.1978). The present case does not reveal a manifest abuse of discretion warranting the substitution of our judgment for that of the trial judge who conducted the trial, heard the remark, and was in the best position to assess its impact.
In the present case the evidence of defendant‘s guilt was overwhelming. There is no possibility that this isolated handful of questions vaguely and somewhat ambiguously suggesting that defendant had a criminal record had any impact on the jury‘s mind. As in the Douglas case we conclude that the action taken by the trial judge was not abusive of his discrеtion.
By his last assignment defendant contends that
This statute prohibits the sentencing judge from suspending the sentence of a second offender unless the court finds the present offense did not include the use of a dangerous weapon, the previous cоnviction was at least five years before the occurrence of the present offense, and the defendant was not charged with any other felonies since the date of the first conviction.
In this case the defendant was previously convicted of a felony, but the first two conditions of the statute were met. However, at the time of the trial defendant was being held on a charge of second degree murder. The trial judge implied in his sentencing discussion that he would have considered suspension but for the pending charge against defendant.
Defendant arguеs that he should not be deprived of probation on the basis of an unproved charge. He asserts that the statute‘s irrationality is demonstrated by the fact that a defendant‘s probation cannot be revoked simply by an arrest and yet he is now being denied probation solely because of an arrest. At the sentencing hearing the trial judge specifically inquired of defendant if he had anything to state before being sentenced and he declined. Under these circumstances we are not persuaded that he was denied due process.
Accordingly, the convictions and sentences are affirmed.
AFFIRMED.
WARD, Judge, dissents.
I respectfully dissent.
I agree with that pаrt of the majority‘s opinion that holds the trial court did not err in the procedure used to empanel the petit jury. I further agree with the majority opinion that the assistant district attorney did not violate
However, I believe the trial court erred by not sustaining Merrick‘s objection to questioning from the assistant district attorney about the source оf photographs used in the photo lineup. I agree with the majority as to the applicable law; and it is well stated in that opinion. I do not agree with the conclusions reached by the majority and I infer different conclusions from the questioning quoted in the majority opinion.
The assistаnt district attorney‘s persistent questioning of Officer Illg on a matter so irrelevant as the source of the photographs convinces me that he asked the question to convey to the jury inadmissible information—information, not evidence—of
Under these circumstances the testimony of Detective Illg should be imputed to the state‘s attorney who obviously knew the answers thаt would be forthcoming, and who in my opinion desired to create an impermissible inference in the minds of the jurors. Because of the overwhelming evidence of guilt I would condemn the rulings of the trial court as error but harmless except