State v. WashingtonState v. Washington
On April 10, 1989 the defendant, Melvin Washington, was charged by Grand Jury indictment with five counts of distribution of cocaine in violation of
A bill of information was filed on November 17, 1989 charging the defendant as a multiple offender pursuant to
FACTS:
As part of an undercover narcotics investigation in Boutte, Detective Anthony Atkins of the St. Charles Parish Sheriff‘s office moved into the Ponderosa Boarding House in September, 1988 and was befriended by James Gilbert. It became the custom of Gilbert and Detective Atkins to play cards on Wednesday nights at Helen‘s lounge in Boutte. On February 22, 1989 Detective Atkins, accompanied by Detective Randy Campbell, an undercover officer on loan to St. Charles Parish from Vermillion Parish, went to Helen‘s lounge. Detective Campbell posed as Detective Atkins’ cousin, a truck driver in town for the night. Gilbert was also in the lounge for the usual card game with Atkins. While at the lounge the men discussed narcotics and Gilbert offered to introduce Campbell to a friend who could supply cocaine. The trio left the lounge and drove to defendant‘s apartment in the Boutte projects. Gilbert got out of the car and went into the apartment. Shortly after Gilbert returned, the defendant came up to the car and offered Detective Campbell three bags of a white powdery substance for inspection. The detective chose one and returned the other two and twenty dollars to the defendant. The defendant went back into his apartment and Gilbert along with the detectives returned to the lounge to resume their card game. At the conclusion of the investigation Washington, along with several others, was arrested for distribution of cocaine.
On appeal the defendant argues1 that the trial court erred in allowing the prosecutor to go beyond permissible argument аllowed under
In his closing argument, counsel for the defense quoted the Preamble of thе United States Constitution. Referring to that quotation and emphasizing the Preamble‘s use of the term “common defense,” the prosecutor made the following statement in his rebuttal аrgument:
If you don‘t think it‘s a war out there, you haven‘t been awake for the last couple of years. What‘s destroying we, the people of the United States, right now and the United States? It‘s the dope dealer. It‘s the retail outlet for the cartels that finally funneled down and our kids and our people get the dope, the crack cocaine, the powder cocaine.
A defense objection was sustained and the prosecutor continued his rebuttal without further comment from defense counsel. At a later point in the rebuttal argument the prosecutor attempted to answer a question posed by defense counsel in closing argument illustrating the fact that no recording of the drug transaсtion was made by the officers to corroborate their version of the drug sale. The prosecutor stated:
“why not a recording? Tony Atkins told you. He tried that. The first few cases trying tо do it. And he got caught with it. Now what happens out on the street? There‘s back up, you‘re there by yourself, and you get caught with a tape recording in a dope deal? You think that‘s healthy?”
Defense counsel objected and the trial court sustained the objection with an instruction to the prosecutor to confine his comments to the facts of thе case. In neither instance did defense counsel request a mistrial or an admonition to the jury.
Defendant argues that the first comment is a highly prejudicial remark which impropеrly turns the prosecutor‘s argument into a plebiscite on crime and implies that the defendant is part of a drug cartel. He argues that the second comment goes beyоnd the evidence adduced at trial.
A prosecutor should refrain from argument which tends to divert the jury from its duty tо decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury‘s verdict. American Bar Association Standard 5.8(d).
See also State v. Smith, 520 So.2d 1305 (La.App. 5th Cir.1988).
Although we agree that the remarks were improper and defense objection properly sustained, this court will not overturn a guilty verdict for improper argument unless thoroughly convinced that the jury was influenced by the questionable remarks and that they contributed to the verdict. State v. Jarman, 445 So.2d 1184 (La.1984); State v. Smith, supra.
We cannot say the prosecutor‘s remarks were so inflamatory as to direct the jury from a decision based on the evidence. The evidence presented by thе undercover detectives at trial fully supported the guilty verdict. We are not thoroughly convinced that the prosecutor‘s remarks influenced the jury or contributed to the vеrdict. State v. Cage, 554 So.2d 39 (La.1989). This assignment is without merit.
We have reviewed this record for errors patent as permitted and defined by
Initially we note that the defendant‘s enhanced sentence was not specifically imposed without benеfit of probation or suspension of sentence as required by
When a multiple offender bill of information is filed
This court has consistently vacated enhanced sentences handed down by the trial court upon acceptance of a plea of guilty by a defendant who has not been informed of his rights in a multiple bill hearing. State v. McIntyre, 496 So.2d 1204 (La.App. 5th Cir.1986); State v. Gilbert, 520 So.2d 1184 (La.App. 5th Cir.1988) appeal after remand 535 So.2d 1313 (La. App. 5th Cir.1988); State v. Jackson, 527 So.2d 1039 (La.App. 5th Cir.1988).
While we acknowledge that the failure to advise a defendant of his right to a trial and to remain silent in a multiple bill hearing is error, we believe in the instant case the error is harmless. The trial court read the predicate offenses charged by the multiple bill and the defendant was asked to admit or deny the allegations. He denied them and the statе was forced to meet its burden of proving that the defendant was a three-time felony offender. While the defendant was not advised of his rights, the trial court honored them.
The instant сase differs from the above cited jurisprudence in that the multiple offender status was established by competent evidence offered by the state at the hearing rathеr than by an admission of the defendant. Consequently, the failure of the trial court to advise the defendant of his rights is harmless error. State v. Mallett, 552 So.2d 28 (La.App. 3rd Cir.1989);
AFFIRMED.
Notes
The argument shall not appeal to prejudice.
The state‘s rebuttal shall be confined to answering the argument of thе defendant.