State of Louisiana v. Marcus Gene Hollier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-1084

STATE OF LOUISIANA

VERSUS

MARCUS GENE HOLLIER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 71404
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

AFFIRMED.

Michael Harson
District Attorney, Fifteenth Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellee:
State of Louisiana

John Clay Lejeune
P. O. Box 1919
Crowley, LA 70527
(337) 788-1505
Counsel for Defendant/Appellant:
Marcus Gene Hollier

Roger P. Hamilton, Jr.
Acadia Parish, Assistant District Attorney
P. O. Box 288
Crowley, LA 70527
(337) 788-8831
Counsel for Plaintiff/Appellee:
State of Louisiana

EZELL, JUDGE.

Defendant, Marcus Gene Hollier, was charged with one count of distribution

of a controlled dangerous substance, a violation of La.R.S. 40:967. A jury trial was

held on October 28, 2008, and on October 29, 2008, Defendant was found guilty as

charged. On November 5, 2008, Defendant filed a motion for new trial and motion

for post-judgment verdict of acquittal. A hearing was scheduled for November 25,

2008, on Defendant’s motions. Both motions were denied. On January 26, 2009,

Defendant was sentenced to seventeen years at hard labor without the benefit of

parole, probation, or suspension of sentence. Defendant filed a motion to reconsider

the sentence on February 10, 2009, which was denied on April 1, 2009.

Defendant has perfected a timely appeal. He raises three assignments of error:

1. The trial court erred in failing to direct a verdict of not guilty,
as there was insufficient evidence to support a finding that all of the
essential elements of the crime of distribution of methadone were proven
beyond a reasonable doubt as the State failed to establish either
possession or distribution by the appellant.

2. The trial court erred in failing to grant a motion for
recess/motion to continue and motion for new trial in light of the
unavailability of Erica Daigle, the confidential informant, whose
testimony was essential to the appellant’s case and who provided the
court with an affidavit showing the possibility of a different result had
she been allowed to testify.

3. The trial court erred in failing to grant a mistrial when evidence
of other crimes was presented by Detective Dale Thibodeaux to the jury
despite a prior agreement between the parties not to introduce said
evidence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

is one error patent involving Defendant’s sentence.

1

The penalty provision for distribution of methadone requires the first two years

of the sentence to be served without benefit of probation, parole, or suspension of

sentence. La.R.S. 40:967(B)(4)(b). In sentencing Defendant to seventeen years at

hard labor, the judge stated, “I’m not going to make it without benefit of parole,

probation or suspension of sentence.”

Thus, the trial court imposed an illegally lenient sentence. See State v.

Thibodeaux, 05-680 (La.App. 3 Cir. 12/30/05), 918 So.2d 1093. Therefore, we do

not recognize an illegally lenient sentence that was not raised as error. Recently, in

State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755

(La. 12/18/09), 23 So.3d 931, this court, after recognizing the trial court’s failure to

impose a mandatory fine as error patent, stated, “However, this court will not

recognize an illegally lenient sentence claim unless it is a raised error.”

ASSIGNMENT OF ERROR NUMBER ONE

Defendant was convicted of distribution of a controlled dangerous substance,

a violation of La.R.S. 40:967(A), which provides, in pertinent part, that it is unlawful

“for any person knowingly or intentionally: (1) To produce, manufacture, distribute,

or dispense or possess with intent to produce, manufacture, distribute, or dispense,

a controlled dangerous substance, or controlled substance analogue classified in

Schedule II.” In the current case, the controlled dangerous substance was methadone.

Defendant argues that the drug was in the possession of and distributed by

another person and that he was simply an observer of the drug transaction. He argues

that the State failed to prove that he was the person who possessed and distributed the

drug; therefore, the evidence introduced was insufficient to support a conviction for

distribution.

The standard of appellate review for a sufficiency of the evidence claim
is whether, after viewing the evidence in the light most favorable to the

2

prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, [433 U.S. 307, 99 S.Ct. 2781(1979)]. In the absence of
internal contradictions or irreconcilable conflict with physical evidence,
the testimony of one witness is sufficient support for a requisite factual
conclusion if that witness is believed by the trier of fact. State v. Jones,
31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185
(La.10/01/99), 748 So.2d 434; State v. Ford, 28,724 (La.App. 2d
Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745
So.2d 12.

This standard, now legislatively embodied in LSA-C.Cr.P. art.
821, does not provide the appellate court with a vehicle to substitute its
own appreciation of the evidence for that of the fact finder. State v.
Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court
does not assess the credibility of witnesses or reweigh evidence. State
v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is
conflicting testimony about factual matters, the resolution of which
depends upon a determination of the credibility of witnesses, the matter
is one of the weight, not the sufficiency, of the evidence. State v. Allen,
36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595
(La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255,
cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A
reviewing court accords great deference to a jury’s decision to accept or
reject the testimony of a witness in whole or in part. State v. Gilliam,
36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090
(La.11/14/03), 858 So.2d 422.

....

In order to convict a defendant for possession of a CDS with the
intent to distribute pursuant to LSA-R.S. 40:967(A), the state must
prove beyond a reasonable doubt that the defendant knowingly and
intentionally possessed the CDS and that he did so with the intent to
distribute it. State v. Moore, 40,311 (La.App. 2d Cir.1/13/06), 920
So.2d 334, writ denied, 06-2267 (La.6/1/07), 957 So.2d 167; State v.
Clark, 35,272 (La.App. 2d Cir.12/5/01), 803 So.2d 280. The defendant
need not be in actual possession of the contraband if the state can prove
that he had constructive possession of it, which means that he had
knowledge of its presence and “dominion and control” over it. State v.
Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d
959 (La.1990); State v. Barakat, [38,419; 38, 420; 38,421 (La.App. 2
Cir. 6/23/04),877 So.2d 223].

The mere presence of a person in the place where contraband is
found or the mere association with a person possessing contraband is
insufficient to establish constructive possession. State v. Harris, supra;
State v. Walker, 369 So.2d 1345 (La.1979). The determination of
whether a defendant is in constructive possession of contraband depends
upon “the peculiar facts of each case”:

3

Factors to be considered in determining whether a
defendant exercised dominion and control sufficient to
constitute constructive possession include his knowledge
that drugs were in the area, his relationship with the person
found to be in actual possession, his access to the area
where the drugs were found, evidence of recent drug use,
and his physical proximity to the drugs.

State v. Barakat, 877 So.2d at 227 (internal citation omitted).

State v. Brown, 42,188; 42,189; 42,190, pp. 9-12 (La.App. 2 Cir. 9/26/07), 966 So.2d

727, 741-42, writ denied, 07-2199 (La. 4/18/08), 978 So.2d 347.

At trial, Jamin Meaux testified that he was an officer with the Morse Police

Department. He also worked as an undercover agent with the Acadia Parish Sheriff’s

Drug Strike Force. He testified that on August 21, 2006, equipped with a monitoring

device, a wire, he and a confidential informant, Erica Daigle, went to Defendant’s

residence. There they made contact with Defendant and “a Ms. Suzanne [Richard],

and [they] had talked briefly about purchasing some methadones.” Officer Meaux

stated that Defendant asked him what he was looking for. Defendant then told Ms.

Richard to get the drug. Ms. Richard left the room and returned with a methadone

wafer and put it on the table. The officer put thirty dollars down on the table, and

Defendant picked up the money and put the bills into his pocket. The officer testified

that Defendant then “demanded that we took [sic] the methadone before we left the

house.” Within a week of the purchase, the officer viewed a photographic line-up and

identified Defendant as the one from whom he purchased the drug.

Dale Thibodeaux was the chief narcotics officer with Acadia Parish Sheriff’s

Office at the time of the purchase. He arranged for the controlled buy. He testified

that he was listening to the transaction via the wire while parked in his vehicle

outside the residence. He testified that he listened to the C.I. and Officer Meaux

speak with a male and a female. He heard the male “pressure agent Meaux into

4

taking the pills.” He stated that the male said: “Nobody leaves this house with drugs,

because if you get stopped down the road, they’re not going to come back and, you

know, I’m already hot right now. They’re watching me.” On cross-examination, the

officer testified that the conversation between the undercover officer and the male and

female was not preserved in any form.

The above stated facts are insufficient to establish that Defendant had actual

possession of the drug; therefore, the State was required to prove that Defendant had

constructive possession of the drug. As noted above, to have constructive possession,

the drug must have been subject to Defendant’s dominion and control. Factors to be

considered to determine whether Defendant exercised sufficient dominion and control

over the drug to constitute constructive possession are his knowledge that the drug

was in the area, his relationship with the person who appeared to be in actual

possession, access to the area where the drug was found, evidence of recent drug use,

and physical proximity to the drug. Brown, 966 So.2d 727.

Testimony established that it was Ms. Richard who retrieved the drug and gave

it to the undercover officer. There was no testimony or other evidence given that

established conclusively that Defendant resided at the house where the drug was

obtained. However, at trial, when asked if he had ever been to the residence before,

Office Meaux testified that he had never been there before. He stated, “I didn’t know

who lived in that house. I know they were in there. I knew that they lived in there.”

At one point, Officer Thibodeaux indicated that he was aware of the fact that the

father of the confidential informant lived in the house and that the confidential

informant was a friend of Ms. Richard’s. This was the extent of any indication of

who lived in the residence.

5

In State v. Anderson, 36,969 (La.App. 2 Cir. 4/9/03), 842 So.2d 1222, the

defendant was convicted of possession of a controlled dangerous substance with

intent to distribute and illegal possession of a firearm. He asserted there was

insufficient evidence that he resided where the drugs were located. Defense

witnesses testified that he did not reside at the location. The second circuit found that

regardless that defense witnesses testified as to the defendant’s nonresident status,

“[t]he search of the residence revealed that only one bedroom contained clothes and

indicated that only one person resided there. The clothes included Anderson’s work

clothing exhibiting his name.” Id. at 1229. See also State v. Jones, 08-20 (La.App.

5 Cir. 4/15/08), 985 So.2d 234, wherein a stack of mail showed that the defendant

lived at the same location wherein the drugs were found. In the current case, nothing

was produced and submitted which conclusively proved Defendant lived in the

residence from where the drug was located and distributed.

There was no testimony or other evidence offered that Defendant had any kind

of relationship with Ms. Richard, who was the one who retrieved the drug from an

unknown location and put it on the kitchen table. However, the Defendant told Ms.

Richard to get the drugs. While Defendant argues that it was Ms. Richard who gave

the drug to the officer, that he was only an observer, the second circuit in Anderson

also noted that a defendant can share constructive possession with a companion. In

the current case, Officer Meaux testified that after Defendant asked him what he

wanted, Defendant then told Ms. Richard to get the drug, and that he pocketed the

money the officer put on the table. Further, Defendant exhibited guilty knowledge

when he ordered the officer and the confidential informant to ingest the drug before

they left the house, because “they” were watching him.

6

Even without evidence that Defendant lived in the house, or had any kind of

relationship with Ms. Richard, the testimony indicated that Defendant exercised

dominion and control over the drug by first asking what the officer wanted, telling

Ms. Richard to retrieve the drug from an unknown location, picking up the money,

then ordering the officer and the confidential informant to ingest the drug for his own

safety. With Officer Meaux’s uncontroverted testimony, the evidence was sufficient

to show that Defendant had constructive possession of the drug, which he

intentionally distributed to others for a price. Specific intent to distribute an illegal

drug may be inferred from the circumstances of the case. There was no contestation

that the drug was not distributed as defined by La.R.S. 40:961(14). See also, Brown,

966 So.2d 727. “[I]n the absence of internal contradictions or irreconcilable conflicts

with physical evidence, the testimony of one witness, if believed by the factfinder, is

sufficient to support a conviction.” State v. Johnson, 01-1084, p.3 (La.App. 3 Cir.

2/6/02), 817 So.2d 120, 123.

Defendant, in brief, argues that Officer Meaux’s testimony was so

contradictory and irreconcilable that it could not be credible such that would support

a finding of distribution, particularly since the police report regarding the controlled

buy was prepared by Officer Thibodeaux, “who could only hear the transaction, rather

than the undercover officer actually conducting the transaction,” and there were major

errors in the report. Most of the contradictory testimony and the error in the report

involved the partial methadone wafer that was preserved in an evidence bag and

introduced at trial. Officer Meaux testified first that the confidential informant picked

up the wafer and broke it in half, then on cross examination, he testified that he

picked up the wafer and broke it in half. In the police report, it was written that

Officer Meaux put his half of the wafer in his mouth, then spit it out later. The wafer

7

in the evidence bag was reportedly the wafer he spit out. But then the officer testified

that he did not put the wafer into his mouth, only pretended to, and put it into his

pocket. Initially, Officer Meaux testified that the one-half wafer in the bag was the

confidential informant’s portion that he ordered her to spit out into a plastic bag when

they left the residence, then he testified that he put his portion into the plastic bag.

It was noted at trial that there was only one “piece” of methadone wafer in the

evidence bag.

The disposition of the methadone wafer did not affect the officer’s testimony

that it was Defendant who constructively possessed and distributed the drug. As for

the essential elements discussed above pertaining to possessing and distributing the

drug, the officer’s testimony did not vary significantly from the initial police report.

Moreover, the jury was made aware of the inconsistencies concerning who broke the

wafer in half and who put the wafer in their mouth, and the fact that there was only

one piece of the wafer delivered to the crime laboratory. “It is the role of the

factfinder to weigh the respective credibility of the witness, and therefore the

appellate court should not second guess the credibility determination of the trier of

fact beyond the sufficiency evaluations under the Jackson standard of review.” Id.;

See also State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Accordingly, considering the above uncontroverted testimony and

jurisprudence, the testimony of Officer Meaux was sufficient to establish that

Defendant exercised control and dominion over the drug and exhibited the requisite

intent to distribute the drug beyond a reasonable doubt. Accordingly, there is no

merit to this assignment of error.

8

ASSIGNMENT OF ERROR NUMBER TWO

Defendant asserts the trial court erred when it denied his oral motion, made

after the State rested its case, to continue the trial based on the fact that a vital defense

witness did not show for trial and could not be immediately located. Further,

Defendant asserts the trial court erred when it denied his motion for a new trial based

on its failure to continue the trial to allow him to locate the missing witness whose

testimony would surely have changed the result of the trial. The witness was Erica

Daigle, the confidential informant who was present at the time of the distribution of

the drug.

Following jury selection, and prior to opening statements, defense counsel

indicated to the trial court that Erica Daigle had not shown up for trial and could not

be located. Later, defense counsel informed the trial court that someone who was

sent to Ms. Daigle’s home reported that she was in a hospital but did not know which

hospital. Again, later in the day, Thomas Frease, a lieutenant with the Acadia Parish

Sheriff’s Office, testified that he had attempted to locate the witness at various

hospitals around Lafayette, but was unsuccessful.

After the State rested its case, defense counsel again put Lieutenant Frease on

the stand to testify what steps he had taken to serve the witness with a subpoena. He

stated that he served one subpoena at her house prior to trial and her stepfather had

stated she was at the doctor’s and would give her the subpoena when she returned.

Defense counsel told the trial court that his whole case was contingent upon the

testimony of Erica Daigle and asked the trial court for “a reasonable continuance” to

have additional time to locate her. The State argued that defense counsel had known

for two months that the trial was to be held on this date and that he had ample time

in which to subpoena the witness. Defense counsel pointed out that trial was

9

originally scheduled for the prior August, and that the witness had appeared then, but

at the last moment, the State had asked for a continuance and, over Defendant’s

objections, trial was rescheduled to the current date. The trial court then ruled:

Well, we already started the trial, that’s the thing. And I know you
expected her to show up. I mean, that was my understanding that you
expected, from conversations with her, that she would show up, but
we’re still stuck here without her here. So, I just think it’s too late to ask
for a continuance. When we started the trial, everybody certified that we
were ready to go with the trial, and there was no witness issues at the
time. So, I’m going to deny the continuance.

Louisiana Code of Criminal Procedure Article 707 provides that a motion for

continuance must be in writing and filed seven days prior to the commencement of

trial. Louisiana Code of Criminal Procedure Article 708 states that while a motion

to continue trial will not be granted after trial has commenced, a recess, or a

temporary adjournment may be allowed. However, although the motion was

improperly titled, jurisprudence holds that the motion may be considered by the trial

court. See State v. Dooley, 38,763; 38,764 (La.App. 2 Cir. 9/22/04), 882 So.2d 731,

writ denied, 04-2645 (La. 2/18/05), 896 So.2d 30; State v. Plaisance, 00-1858

(La.App. 4 Cir. 3/6/02), 811 So.2d 1172, writ denied, 02-1395 (La. 11/27/02), 831

So.2d 270, cert. denied, 538 U.S. 1038, 123 S.Ct. 2084 (2003).

Despite the differing definitions of a continuance and a recess, a
motion for a recess is governed by the same standards as a motion for a
continuance. State v. Rodriguez, 02-334, p. 14 (La.App. 5 Cir. 1/14/03),
839 So.2d 106, 117, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061,
cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 321 (2003). In
general, whether to grant or deny a recess rests within the sound
discretion of the trial judge, and a reviewing court will not disturb the
ruling absent a clear abuse of discretion. State v. Hampton, 1998-0331,
p. 9 (La.4/23/99), 750 So.2d 867, 877.

A motion for a continuance based on the absence of a witness
must meet specific criteria. La.C.Cr.P. art. 709 provides the motion
must state:

(1) Facts to which the absent witness is expected to
testify, showing the materiality of the testimony and the

10

necessity for the presence of the witness at the trial;

(2) Facts and circumstances showing a probability
that the witness will be available at the time to which the
trial is deferred; and

(3) Facts showing due diligence used in an effort to
procure attendance of the witness.

The trial court has great discretion in granting a recess; denial of
a motion for a recess is not grounds for reversal, absent an abuse of that
discretion and the showing of specific prejudice. State v. Stevenson,
02-0079, p. 3 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345. To show
prejudicial error sufficient to warrant reversal, the defendant must show
that the testimony the witness would have given would have been
favorable to the defense and would indicate the possibility of a different
result. Id.

State v. Riggins, 08-714, pp.8-9 (La.App. 5 Cir. 4/7/09), 13 So.3d 187, 192 writ

denied, 09-1045 (La. 1/22/10), 25 So.3d 129.

In Riggins, an alibi witness failed to appear for trial, and the defendant

requested a recess, which was denied by the trial court. Although the fifth circuit

found that due diligence was used to obtain the presence of the witness, it also found

that the defendant failed to state the facts to which the witness was expected to testify,

or to state the circumstances showing a probability that the witness would show up

at the time to which the trial was deferred. Moreover, the fifth circuit stated that

“[t]he mere suggestion that [the witness] may have provided the defendant with an

alibi is insufficient to satisfy the requirement of that facts be offered to prove her

presence at trial necessary to the defendant’s case.” Id.

In the current case, the record indicates that defense counsel subpoenaed the

witness for the first scheduled trial in August 2008, and then again after the trial was

continued at the State’s request to October 2008. As noted, defense counsel indicated

that he had spoken with the witness the day prior to trial, but when she did not appear

on the day of trial, he informed the trial court and sent Lieutenant Frease out to locate

11

her. However, defense counsel only advised the trial court that his “whole case was

contingent upon the witness’s testimony,” and did not elaborate as to what the

substance of the testimony was and how the failure to obtain the testimony was

prejudicial to Defendant’s case. While defense counsel seemingly exercised due

diligence to secure the witness’s presence and demonstrated that there was a

probability that the witness would show up for trial at the time to which the trial was

deferred, defense counsel failed to provide the trial court with the remaining

criteria–the substance of her testimony and the prejudice that could have been

suffered by Defendant. Accordingly, this court finds the trial court did not err when

it denied Defendant’s motion to continue trial.

However, on November 25, 2008, a hearing was held on Defendant’s Motion

for New Trial, wherein he asserted that “the court[‘s] failure to grant a continuance

in order to find the witness, Erica Daigle, was a prejudicial error.” The trial court

denied the motion without comment.

In pertinent part, La.Code Crim.P. art. 851, provides:

The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is shown to have
been the case the motion shall be denied, no matter upon what
allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial
whenever:

....

(2) The court’s ruling on a written motion, or an objection made
during the proceedings, shows prejudicial error.

The denial of a motion for new trial is not subject to appellate
review except for error of law. La. C. Cr. P. art. 858; State v. Horne,
28,327 (La.App.2d Cir.8/21/96), 679 So.2d 953, writ denied, 96-2345
(La.2/21/97), 688 So.2d 521. The decision on a motion for new trial
rests within the sound discretion of the trial court. State v. Horne,
supra. The appellate court will not disturb this ruling on appeal absent
a clear showing of abuse. Id. Generally, a motion for new trial will be
denied unless injustice has been done, no matter on what allegations it

12

is grounded. State v. Dowden, 41,939 (La.App. 2d Cir.3/28/07), 954
So.2d 300, writ denied, 07-909 (La.11/9/07), 967 So.2d 501; State v.
Horne, supra.

State v. Friday, 43,157, pp. 7-8 (La.App. 2 Cir. 3/26/08), 979 So.2d 672, 676, writ

denied, 08-860 (La. 11/14/08), 996 So.2d 1088.

Defendant argues that the confidential informant’s testimony controverted the

only other eye-witness’s testimony and that had she testified there was a substantial

likelihood that the jury would have returned a not guilty verdict. The State’s case was

premised on the testimony of the undercover officer that Defendant asked the officer

what he wanted, told Ms. Richard to get the drug, pocketed the money which

purchased the drug, and finally told the officer to take the drug prior to leaving the

residence. The affidavit of Erica Daigle stated that she dealt with Ms. Richard

exclusively and that Ms. Richard picked up the money. The only part of Ms. Daigle’s

testimony that coincided with that of Officer Meaux’s was that Defendant said,

“[W]hy don’t you eat it [the methadone] now.”

We note that La.Code Crim.P. art. 858 states that “[n]either the appellate nor

supervisory jurisdiction of the supreme court may be invoked to review the granting

or the refusal to grant a new trial, except for error of law.” Defendant appends his

grounds for a new trial on La.Code Crim.P. art. 851(2), which provides that a new

trial shall be granted whenever “[t]he court’s ruling on a written motion, or an

objection made during the proceedings, shows prejudicial error.”

However, the trial court’s ruling, denying the motion to continue trial so that

Defendant could locate a vital witness, was a correct ruling considering that defense

counsel failed to provide the trial court with the necessary criteria on which to grant

the motion. Moreover, after the trial court denied the motion to continue trial,

defense counsel did not object to the ruling. Accordingly, this court finds that there

was no error of law when the trial court denied Defendant’s motion for new trial

13

based on the its failure to grant his motion to continue the trial.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that the trial court erred when it denied his oral motion for

a mistrial made after the testimony of one of the State’s witnesses described

inadmissible “other crimes” evidence. Louisiana Code of Evidence Article

404(B)(1), in pertinent part, provides that “[e]xcept as provided in Article 412,

evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show that he acted in conformity therewith.” The witness was

Dale Thibodeaux, the chief narcotics officer. Following the alleged inadmissible

comment, defense counsel asked the trial court to declare a mistrial.

Under La.Code Crim.P. art. 770, a mistrial is mandatory upon
timely motion of the defendant when a remark or comment made within
the jury’s hearing by “the judge, district attorney, or a court official” is
a direct or indirect reference to “another crime committed or alleged to
have been committed by the defendant as to which evidence is not
admissible.”Apoliceofficerisnotacourtofficial;therefore,themandatorymistrialmandatedbyArticle770(2)isnotapplicable. Statev.Watson,
449 So.2d 1321 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d
952 (1985); State v. Henry, 461 So.2d 484 (La.App. 3 Cir.), writ denied, 464 So.2d
313 (La.1984). However, a discretionary mistrial is appropriate under La.Code
Crim.P. art. 771, where the witness is a police officer and the inadmissible other
crimes evidence is elicited or should have been anticipated by the prosecutor. State
v. Waymire, 504 So.2d 953 (La.App. 1 Cir.1987).

. . . .Under La.Code Evid. art. 401, “ ‘relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” According to La.Code
Evid. art. 404(B), “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident.” Finally, under
La.Code Evid. Art. 403, relevant evidence may be excluded by the trial
court “if its probative value is substantially outweighed by the danger of
unfair prejudice.”

State v. Bailey, 95-78, pp. 13-14 (La.App. 3 Cir. 11/2/95), 664 So.2d 665, 674, writ

denied, 96-609 (La. 6/21/96), 675 So.2d 1077. Moreover, on appeal, an improper

reference to other crimes evidence is subject to the harmless error rule, i.e., whether

14

the verdict actually rendered in the case was surely unattributable to the error. State

v. Nelson, 02-65, p. 11 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 804, writ denied,

02-2090 (La. 2/21/03), 837 So.2d 627.

During the State’s direct examination, the officer described what he could hear

of the conversation taking place inside the residence after the undercover officer and

the confidential informant had made contact with Defendant and Ms. Richard. He

testified:

Then, I heard the male subject was trying to pressure agent Meaux into
taking the pills. He said, “Nobody leaves this house with drugs, because
if you get stopped down the road, they’re not going to come back and,
you know, I’m already hot right now. They’re watching me.” This and
that, okay? So, he tried to pressure him into taking the drugs, okay?

Q. When you talk about being hot, what are you talking about?

A. We were investigating Marcus. I went face-to-face with
Marcus several times. I told Marcus that he was dealing drugs, I’m tired
of it, and I was going to put him away.

Defense counsel immediately objected. At a sidebar conference, defense

counsel asked for a mistrial based on Officer Thibodeaux’s reference to other crimes

evidence. As noted above in Defendant’s assignment of error, he states that there was

an agreement there would be no testimony regarding other crimes evidence. While

we found nothing in the record to indicate there was such an agreement, when defense

counsel asked for a mistrial, he stated: “We indicated there was no other crimes

evidence. The State indicated there was no other crimes evidence.” Without

commenting on defense counsel’s vague assertion there was an agreement not to raise

other crimes evidence, the State argued that it did not think the jury viewed the

comment as other crimes evidence and that the statement only indicated that

Defendant was being investigated. The trial court denied the motion and admonished

the jury to disregard the remark.

In State v. Clark, 05-652, p. 12 (La.App. 5 Cir. 2/14/06), 924 So.2d 282, 289,

15

writ denied, 06-622 (La. 10/13/06), 939 So.2d 372, and writ denied, 06-1175 (La.

1/12/07), 948 So.2d 138, while discussing whether the prosecutor used the officer to

elicit inadmissible other crimes evidence, the fifth circuit noted:

A police officer is not a “court official” for purposes of La.C.Cr.P.
art. 770. State v. Walker, 03-1072, p. 4 (La.App. 5th Cir.12/30/03), 865
So.2d 172, 174, citing State v. Hayes, 414 So.2d 717, 721 (La.1982);
State v. Celestine, 98-1166, p. 7 (La.App. 5th Cir.3/30/99), 735 So.2d
109, 114, writ denied, 99-1217 (La.10/8/99), 750 So.2d 178. However,
an impermissible reference to another crime which was deliberately
elicited by the prosecutor is imputable to the State, and triggers the
provisions of La.C.Cr.P. art. 770. State v. Walker, 03-1072 at p. 7, 865
So.2d at 174.

In Clark, the court found that the prosecutor was not trying to elicit other

crimes evidence from an officer when it asked the officer “why he did not execute a

search warrant on the [d]efendant’s home or car. The Detective stated that: ‘[t]he

information that we received from a confidential source stated he was not living at the

address listed on his rap sheet.’” Id. at 288 (alteration in original). Clark argued that

the reference to his rap sheet was other crimes evidence. The fifth circuit went on to

state:

In Edwards the Court held:

[A] comment must not “arguably” point to a prior
crime; to trigger mandatory mistrial pursuant to Article
770(2), the remark must “unmistakably” point to evidence
of another crime. State v. Babin, 336 So.2d 780 (La.1976)
(where reference to a “mug shot” was not unmistakable
reference to a crime committed by Defendant); State v.
Harris, 258 La. 720, 247 So.2d 847 (1971) (where no
crime was evidenced by a police officer’s reference to
obtaining Defendant’s photograph from the Bureau of
Investigation). In addition, the imputation must
“unambiguously” point to the Defendant. State v.
Edwards, 406 So.2d 1331, 1349 (La.1981), cert. denied
sub nom. Edwards v. La., 456 U.S. 945, 102 S.Ct. 2011,
72 L.Ed.2d 467 (1982). The Defendant has the burden of
proving that a mistrial is warranted.

[State v.] Edwards, 97-1797 at p. 20, [(La. 7/29/99)], 750 So.2d at [893]
906. See also: [State v.] Williams, 01-1007 [(La. App. 5 Cir. 2/26/02)]

16

at p. 8, 811 So.2d [1026] at 1030-1031.

In Edwards, the Louisiana Supreme Court found that a detective’s
response to the prosecution’s question that he found out that a certain
location was the defendant’s residence “[t]hrough the probation officer”
did not warrant a mistrial. The Court found that the context of the
State’s line of questioning did not reveal an intent to elicit inadmissible
evidence, and furthermore, the response did not unambiguously point to
another crime committed by the defendant. Since the elements of
La.C.Cr.P. art. 770(2) had not been satisfied, the defense failed to prove
entitlement to a mandatory mistrial. In addition, the Court found that the
defendant was not entitled to a mistrial under La.C.Cr.P. art. 771. The
Court noted that the defendant failed to ask for an admonishment to the
jury. The Court concluded that the trial judge did not abuse his
discretion in denying the mistrial.

In Walker, a police officer made repeated indirect references to
his familiarity with the defendant and observation of him on other
occasions. We found that the comments did not constitute a reference
to other crimes within the meaning of La.C.Cr.P. art. 770(2), because
there was no evidence that the prosecutor was attempting to elicit
information about other crimes. Rather, the questioning was aimed at
setting up the sequence of events leading to the defendant’s arrest.
Further, we noted that there was no specific mention of a prior crime or
bad act.

In Celestine, a police officer testified regarding the defendant’s
identification and stated in response to questioning at trial that when he
got the defendant’s name he ran it through the national crime computer
and got a past criminal history. Thereafter, the defense moved for a
mistrial. This Court affirmed the trial court’s refusal to grant the
defendant a mistrial and held that the officer did not refer to any specific
crime committed by the defendant. This Court noted that, although the
defense moved for a mistrial, no admonition was requested and,
therefore, the trial judge was not obligated to admonish the jury.

Id. at 289-90(alterations in original)(footnote omitted).

In Bailey, 664 So.2d 665, this court found that the trial court correctly

determined that the prejudice of a comment made by a police officer during direct

examination did not substantially outweigh its probative value. The defendant had

called for help after shooting the victim and explained to the officer that he was

probably going to be blamed for the shooting since he had been arrested before. The

defendant argued that the statement was inadmissible reference to other bad acts and

accordingly deprived him of a fair trial because it prejudiced the jury against him.

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This court concluded that the statement was relevant in that it tended to prove that the

defendant, who was charged with second degree murder, had a guilty mind and

pertained to whether he possessed specific intent to commit the offense. This court

stated:

Under Rule 403, the trial court is vested with great discretion in
determining whether the probative value of a relevant piece of evidence
is substantially outweighed by the danger of unfair prejudice. Nigreville
v. Federated Rural Elec. Ins., Co., 93-1202 (La.App. 3 Cir. 7/13/94),
642 So.2d 216, writ denied, 94-2803 (La. 1/27/95), 649 So.2d 384. No
details were introduced concerning the nature of the defendant’s arrests
and the State did not pursue the matter any further.

Id. at 675.

In State v. Spencer, 96-248, p. 8 (La.App. 3 Cir. 11/6/96), 683 So.2d 1326,

1331, writ denied, 96-2938 (La. 5/9/97), 693 So.2d 773 (alteration in original), the

defendant, who was convicted of a drug offense, complained that the officer’s

statement made during trial that he saw the defendant standing on the side of the road

and knew him because “[w]e’ve dealt with him in the past on occasions out on the

street,” was not a prohibited other crimes evidence. This court noted that the

comment was made merely to show how the officer happened to have recognized the

defendant.

Similarly, in the current case, Officer Thibodeaux’s testimony as to the

statement made by Defendant about not taking the drug out of the house because he

was “already hot right now. They’re watching me,” could be construed as pertaining

to his guilty state of mind and thereby relevant and admissible.

Id. at 67-68.

Furthermore, in a case with a very similar factual situation as the current case,

the fifth circuit found that the even though the comments may have been

inadmissible, the error in its admission was harmless. State v. Black, 03-911 (La.App.

5 Cir. 12/30/03), 864 So.2d 836. In Black, the undercover officer and confidential

18

informant went to the defendant’s house to purchase oxycodone. Once in the

residence, the confidential informant left the undercover officer alone, and the officer

dealt exclusively with the defendant. The officer told the defendant he wanted twenty

pills, but the defendant said that he had only ten pills available. As they were

negotiating for the drugs, the officer could see another man sitting in a bedroom

smoking crack cocaine. The defendant said he was going to go get a hit of crack

cocaine and that his roommate would deal with him and went into the bedroom and

closed the door. The roommate came out of the bedroom and told the officer they had

only ten pills left, having just exchanged most of the pills for the crack cocaine they

were smoking. The roommate gave the officer the pills and took the money. The two

men were eventually charged with distribution.

In Black, the defendant asserted on appeal that the state failed to prove he was

a part of the distribution between the undercover officer and the roommate and that

the state failed to prove he was a principal to the drug transaction. This assignment

was found to be without merit. The defendant then asserted that the trial court

incorrectly allowed inadmissible other crimes evidence to be admitted when the

undercover officer testified as to the defendant’s smoking crack cocaine in the house

and when, in response to the state’s repeated questions about the defendant’s prior

cocaine use, his mother repeatedly testified that she knew he had a problem with

crack cocaine in the past. The defendant moved for a mistrial, which the trial court

denied. The fifth circuit stated:

An exception to Article 770’s rule requiring a mistrial is made if
the evidence is substantially relevant to some purpose other than to
show that the defendant is a bad person and, therefore, more likely to
have committed the crime. The trial judge must balance the pertinent
factors to determine whether the probative value of the evidence is
outweighed by its prejudicial effect. State v. Kirkpatrick, 443 So.2d 546,
556 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d
847 (1984).

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In the present case, the complained of evidence is attributable to
the state, since the prosecutor twice elicited the same response from the
witness. However, we find that the references to defendant’s past crack
cocaine use were independently relevant to negate defendant’s theory
that he was an innocent bystander. Moreover, even if the evidence of
defendant’s past drug use should not have been introduced, we find any
error in its admission to be harmless. State v. Quest, 00-205 (La.App. 5
Cir. 10/18/00), 772 So.2d 772, 785, writ denied, 00-3137 (La.11/2/01),
800 So.2d 866; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94.
Considering that there was evidence of defendant’s present cocaine use
and considering the evidence against the defendant, we find that the
guilty verdict was surely unattributable to any error in the brief
references to defendant’s past crack cocaine use.

Id. at 841.

Likewise, the reference to Defendant dealing drugs prior to the current incident

was independently relevant to negate his assertion that he was only an observer of the

drug transaction between Ms. Richard and the undercover officer, or, if the comment

of Defendant’s drug dealings should not have been introduced, that the error was

harmless considering the evidence against Defendant. Therefore, the guilty verdict

was surely unattributable to the comment.

CONCLUSION

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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