State v. MilesState v. Miles
Thе defendant, Lionel Miles, was charged by a bill of information with receiving stolen things between August 18, 1982 and August 26, 1982 in violation of
On August 19, 1982, Mrs. Eloise Thompson of the Chelouise Antique Shop on Highland Road in Baton Rouge receivеd a phone call from a person who told her that he had some furniture in which she might be interested. She went to see the furniture, and purchased it from Lionel Miles.
On August 26, 1982, Mrs. Kelly’s house was again burglаrized, and some more items were stolen. On that same date, the owner of the antique store was again requested by Miles to come view more property. (The owner of the antique store had, between August 19 and August 26, bought several other pieces of antique furniture from Miles). Mrs. Thompson, the antique dealer, had the impression that defendant had inherited these piеces of furniture from a member of his family.
Eventually, the defendant was arrested and charged with receiving stolen goods. Miles gave a statement to the police in which he said that two people had brought the property in question to him for him to sell. He also admitted that he knew the property had been stolen.
Defendant contends on appeal that the trial court erred when it denied his motion for a mistrial based on the alleged prejudicial remarks of the prosecutor in the presence of the jury. While the jury venire was prеsent in the courtroom, prior to the voir dire, the prosecutor requested an amendment of the bill of information to add the charge of theft.
An objection to prejudicial remarks or conduct of the prosecutor must be contemporaneous. State v. Anderson,
Secondly, and more importantly, the remark оf the prosecutor was not so prejudicial as to preclude a fair trial. The trial judge, in giving his reasons for denying the mistrial, said while he did not consider it was ’proper to move to аmend the bill of information in the presence of the jury panel, he did not believe that the panel would be so affected by the motion to amend as to preclude a fair triаl. The judge offered to admonish the jury to disregard any technical procedures which may have occurred prior to the trial on the matter, and the defense declined the аdmonition remedy. It appears that the jury, at that particular stage of the trial, would not have noticed or assigned any significance to the prosecutor’s conduct before any of the members of the jury was actually chosen. In any event, the judge offered to admonish the jury (which was unacceptable to the defense). The decision not to grant
Moreover, the codal article mаking prejudicial remarks the basis of a mistrial, LSA-C.Cr.P. art. 770(2), expressly provides for a mistrial on the basis of remarks concerning another crime only where evidence of such crime would not be admissible. In the instant ease, evidence of an alleged theft would have been admissible since one of the elements of the crime of receiving stolen things is that the “anything of value” be the subject of “any robbery or theft.”
Further, we observe that a mistrial is a drastic remedy, and is warranted only when the trial error results in such substantial prejudice that the defendant cаnnot receive a fair trial. State v. Harris,
ASSIGNMENT OF ERROR NO. 7(2): Objection as to Venue
In this assignment of error the defense contends that the State did not prove that the crime with whiсh defendant was charged took place in East Baton Rouge Parish.
Under Article 611 of the Code of Criminal Procedure:
All trials shall take place in the parish where the offense has been committed, unless the venue is changеd. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.
The receiving of stolen things is:
... the intentional procuring, receiving, or concealing of anything of value which has beеn the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.LSA-R.S. 14:69 (prior to the 1982 amendment).
Under the Reporter’s Comment to
In his brief, the defense maintains that, because Mrs. Kelly did not say specifically she lived in Baton Rouge, there was insufficient evidence that the crime was committed in that city and parish. The record reflects that the witness, Maxine Marie Hanks, tеstified that she lived at 2029 Wisteria in Baton Rouge. She further testified that she lived some ten blocks from the victim Mrs. Kelly. The reasonable inference is that Mrs. Kelly resided in Baton Rouge. Moreovеr, Mrs. Kelly testified that the property under discussion was located at “221 Ogden”, which was her residence. Hence, the fact that the evidence establishes that the items were stolen from a Baton Rouge residence proves venue in Baton Rouge, East Baton Rouge Parish.
Furthermore, we note that the street names mentioned, particularly the addresses of the Kelly residence on Ogden and the antique shop on Highland Road, are well known and would be well known to any trier of fact in this parish. Moreover, the
Venue is a fаctual issue, which the prosecution must prove beyond a reasonable doubt. Our review of the evidence in the record, as discussed above, convinces us that the State, аt trial, proved venue to be in East Baton Rouge Parish beyond a reasonable doubt. State v. Skipper,
For the reasons assigned, we affirm the conviction аnd sentence of defendant, Lionel Miles.
AFFIRMED.
Notes
. Defendant had originally assigned nine errors as the basis of his appeal, but seven of the assignments of error were not briefed and are thus considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.
. After discussion with defense counsel and the trial judge, the prosecutor elected not to amend the bill of information.