State of Louisiana v. James Lyndal Foster

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-615

STATE OF LOUISIANA

VERSUS

JAMES LYNDAL FOSTER

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 297,291
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

James C. Downs
District Attorney - 9th Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for Appellee:
State of Louisiana

Loren Marc Lampert
Attorney at Law
P. O. Box 1472
Alexandria, LA 71309
(318) 473-6650
Counsel for Appellee:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
707 Julia St.
Rayville, LA 71269
(318) 728-2043
Counsel for Defendant/Appellant:
James Lyndal Foster

James Lyndal Foster
Hunt Correctional Center
P. O. Box 719
St. Gabriel, LA 70776-0174
Pro Se

GREMILLION, Judge.

Defendant, James Lyndal Foster, was tried and convicted of possession of a

Schedule II controlled dangerous substance (methamphetamine) on November 5,

2009. He was sentenced to five years at hard labor. Through counsel and pro se

briefs, he contends the trial court erred in denying his motions for continuance or

mistrial, to suppress, and for new trial, and he claims ineffective assistance of

counsel. The conviction and sentence are affirmed.

FACTS

Lieutenant Scott Weisler of the Pineville Police Department stopped a vehicle

operated by Defendant because he was not wearing a seat belt. Defendant exited the

vehicle, and Lieutenant Weisler asked for insurance and registration documents.

Defendant went to the passenger side of the vehicle, accompanied by Lieutenant

Weisler, and sat in the seat to retrieve the documentation from the glove

compartment. Defendant picked up a black eyeglass case, pushed it behind him, and

sat back as he looked through the glove box. Although other items were on the seat,

the eyeglass case was the only one Defendant moved.

While looking in the vehicle’s center console, Defendant again moved the

eyeglass case “to where, again, it looked like he was trying to conceal something.”

His hands were “shaking really bad,” he was sweating profusely, and he was talking

continuously. Defendant chewed on his lip and clenched his jaw, actions Lieutenant

Weisler knew from experience to be associated with methamphetamine use.

Based on Defendant’s behavior, Lieutenant Weisler called another unit for

backup. He performed a pat down on Defendant, and when Officer Edric Smith

arrived, Lieutenant Weisler asked him to stay with Defendant while he “went and

1

conducted a frisk of the vehicle.” Defendant’s level of agitation increased as

Lieutenant Weisler did the pat down and search of the vehicle.

Lieutenant Weisler found a clear plastic bag that was determined to contain

methamphetamine inside the black eyeglass case. He also “found a glass meth

smoking pipe” in the center console.

The in-car cameras in Lieutenant Weisler’s vehicle captured the events to

which he testified. They recorded Defendant saying he wished he would have tried

to destroy, eat, or dispose of the methamphetamine. The cameras did not show the

placement of Defendant and Officer Smith during the pat down or whether the

vehicle’s doors were closed. Had the search of the vehicle revealed nothing,

Lieutenant Weisler would have written a citation for a traffic violation and Defendant

would have reentered his vehicle and been on his way.

Defendant filed a motion to suppress on November 2, 2009. He sought to

exclude “any and all physical evidence of any kind, nature or description . . . secured

in violation of [D]efendant’s constitutional and statutory rights” and “any and all

derivative evidence . . . including certain statements which it is supposed are

inculpatory in nature and designed for use as evidence against [Defendant] . . . under

the ‘fruits of the poisonous tree’ doctrine.” The trial court denied the motion on

November 5, 2009, prior to the onset of trial, on grounds it was untimely filed.

On November 4, 2009, Defendant also filed a motion to continue the trial. The

motion alleged that Defendant only learned on that date of the existence of the

videotape from the in-car cameras, that the videotape was not disclosed in violation

of his due process rights, and that undue prejudice would result from the denial of the

motion. The trial court denied the motion on November 5, 2009, because trial had

2

already commenced at the time the motion was made.

Alternatively, Defendant sought a mistrial on the same grounds, that he did not

have time to adequately prepare for trial because of the late-found videotape.

Defense counsel also argued a mistrial was appropriate based on La.Code Crim.P. art.

775 because prosecutorial misconduct made it impossible for Defendant to receive

a fair trial and, thus, she could not properly represent him.

The trial court addressed the motion to continue on November 5, 2009. The

jury had already been selected, and counsel asked the court to hear the motion “prior

to the jury coming in.” The trial court immediately denied that motion. Defense

counsel argued the motion when the trial court asked her to “state for the record

what’s happened. Because the people at the Third Circuit won’t know.” After her

argument, counsel asked the court again for a continuance and then stated, “[i]f not,

at least, Your Honor, I would have to ask for a mistrial. . . .”

As the trial court and counsel for both parties proceeded with their discussion

of the motion to continue, defense counsel stated, “[w]hat I want to do, Your Honor,

if you’re going to deny my motion, I want to orally move for a mistrial. . . .” After

defense counsel called witnesses and made a formal record of her argument, she again

asked for a mistrial, not a continuance. The trial court stated:

You have filed a Motion to Continue the Trial today. You gave
this to me, and I’m going to deny your Motion for a Continuance . . . .

There is a Motion to Suppress that you filed on Tuesday . . . .
That is denied because it was not timely filed.

....

So those two motions are denied, ma’am.

Defendant also filed a motion for new trial on November 13, 2009. He argued

3

the verdict was contrary to the law and evidence, and he again argued the trial court’s

prejudicial error in denying his motion to continue and in denying his request to argue

the motion to suppress. The trial court denied the motion.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred by refusing to grant the motion to

continue trial or for mistrial. Defense counsel first asked for a mistrial after the trial

court denied her motion to continue. She asked for the opportunity to make an

argument for the record on the motion to continue, and in that argument, asked for a

mistrial. Counsel for the State commented, in response, “[s]o we would ask that

whatever the motion is—I assume it’s a motion, you’re treating it as an appropriate

motion, that it be denied in whatever form [defense counsel] attempts to couch it.”

Defense counsel later asked the court, “if you’re going to deny my motion [to

continue], I want to orally move for a mistrial. . . .”

Clearly, defense counsel did not argue the motion to continue and the motion

for mistrial separately, but rather both at the same time. Nevertheless, we will take

up each motion separately hereinbelow.

Continuance

A motion to continue trial “shall not be granted after the trial or hearing has

commenced,” “when the first prospective juror is called for examination.” La.Code

Crim.P. arts. 708, 761. Here, the trial court noted at the hearing of the motion to

continue that a jury had already been picked and, thus, the motion was inappropriate.

This ruling was correct.

However, La.Code Crim.P. art. 708 also allows the trial court to consider a

motion to continue as a motion for recess after the commencement of trial, and “a

4

motion for a recess is governed by the same standards as a motion for a continuance.”

State v. Hollier, 09-1084, p. 10 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 474, writ

denied, 10-1037 (La. 12/10/10), 51 So.3d 722 (citation omitted) (quoting 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). The denial of a request for a recess will not be

reversed absent a showing of abuse of discretion and specific prejudice. Id.

Here, Defendant claims he was prejudiced by the introduction of the late-

discovered in-car videotape. Arguing the motion to continue, defense counsel alleged

she needed additional time to have the videotape’s audio enhanced because most of

the sound is inaudible and to interview a UPS driver shown in the videotape making

a delivery. She did not argue the videotape was withheld by the State or that the State

delayed production of the video to her in any manner; rather, counsel argued she

“could not do what [she] needed to do to effectively represent [her] client.”

The simplest and most relevant fact here is that the videotape contains no

exculpatory or other evidence that would have resulted in a different verdict, even if

the sound had been enhanced and the background noise reduced. The trial court did

not abuse its discretion in the denial of the request for continuance or recess.

Mistrial

“[A] mistrial shall be ordered . . . when prejudicial conduct in or outside the

courtroom makes it impossible for the defendant to obtain a fair trial. . . .” La.Code

Crim.P. art. 775. As defense counsel concedes, mistrial is “a drastic remedy that is

warranted only when the defendant has suffered substantial prejudice such that he

cannot receive a fair trial. . . . The determination of whether actual prejudice has

occurred lies within the sound discretion of the trial judge; this decision will not be

5

overturned on appeal absent an abuse of that discretion.” State v. Weary, 03-3067,

p. 36 (La. 4/24/06), 931 So.2d 297, 321, cert. denied, 549 U.S. 1062, 127 S.Ct. 682

(2006) (quoting State v. Carmouche, 01-405, p. 20 (La. 5/14/02), 872 So.2d 1020,

1035 and State v. Wessinger, 98-1234, p. 24 (La. 5/28/99), 736 So.2d 162, 183, cert.

denied, 528 U.S. 1050, 120 S.Ct. 589 (1999).

Defense counsel argued mistrial was appropriate here because she “did not

have the video in time to do what was necessary” to prepare for trial, and thus, her

client could not obtain a fair trial. However, neither the briefs nor the record supply

a credible suggestion that the evidence was helpful to Defendant’s cause and/or that

the State had taken any action to blindside Defendant with it. Therefore, the drastic

remedy of mistrial is inappropriate.

ASSIGNMENT OF ERROR NUMBER TWO
PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial court erred in denying his motion to suppress

without hearing any argument. The trial court denied the motion, filed on November

2, 2009, on the day the trial began, November 5, 2009, on grounds it was untimely

filed and because it did not meet the provisions of La.Code Crim.P. art. 703(E)(1).

A motion to suppress must be filed within fifteen days of arraignment unless

a party shows good cause why that time period is inadequate or “unless opportunity

therefor did not exist or neither the defendant nor his counsel was aware of the

existence of the evidence or the ground of the motion. . . .” La.Code Crim.P. art.

703(C), referring to La.Code Crim.P. art. 521. Louisiana Code of Criminal Procedure

Article 703(C) also allows the trial court discretion to “permit the filing of a motion

to suppress at any time before or during the trial.”

Here, defense counsel’s certificate of service shows Defendant’s motion was

6

submitted on November 2, 2009. It is not stamped with the date of filing. Evidence

at the hearing showed the State did not learn of the existence of the in-car videotape

until November 3, 2009, and did not receive it until November 4, 2009. The district

attorney sent a letter and a notice pursuant to La.Code Crim.P. art. 768 on November

4, 2009.1

The motion to suppress, “filed” on November 2, 2009, could not have been

directed to the exclusion of the videotape because both parties alleged they did not

know of its existence at that time. Thus, the November 2, 2009 motion was indeed

untimely, and the trial court did not err in denying it for that reason.

The trial court further denied Defendant the opportunity to argue the motion

on grounds it did not meet the requirement of La.Code Crim.P. art 703(E)(1) to allege

“facts that would require the granting of relief.” A motion to suppress is properly

denied when it fails to seek the suppression of specific evidence for specific reasons.

State v. Richey, 249 So.2d 143 (La.1971); State v. Wilder, 09-2322 (La. 12/18/09),

24 So.3d 197. The language of the motion (quoted hereinabove) did not seek to

suppress specific evidence for specific reasons. Thus, the trial court did not err in

refusing to hear argument on the motion, and it was correctly denied.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his pro se brief, Defendant argues the trial court erred in denying his motion

for a new trial on grounds “the state purposely withheld this video, or shall

[Defendant] say it surely has evidence that it could have happened.” He claims he did

not get a fair trial because of the way the case was prepared and presented by the

District Attorney “and the timing on it all.” Defendant’s motion for new trial alleged

1
Although the letter was dated November 2, 2009, the District Attorney’s paralegal
testified it was actually prepared on November 4, 2009, along with the 768 notice.

7

a verdict contrary to the law and evidence and prejudicial error through the denial of

the motion to continue and denial of argument on the motion to suppress. See

La.Code Crim.P. art. 851(1), (2). Defendant’s pro se allegations are unsupported by

the record. The trial court did not err in denying Defendant’s motion for new trial.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Defendant also argues ineffective assistance of counsel in his pro se brief. He

alleges he told his counsel of the existence of the videotape shortly after her

appointment on April 6, 2009.2 Nevertheless, counsel did not file a motion to

suppress the videotape until November 4, 2009.

The issue of ineffective counsel is more appropriately addressed in an

application for post-conviction relief, where an evidentiary hearing can be conducted

in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25

So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this

court may address the merits of the claim if the record discloses sufficient evidence

to rule on it. Id.

This record does not contain sufficient evidence to determine whether counsel

was ineffective. The record gives no reason for counsel’s alleged failure to seek

production of the video prior to November 4, 2009. This issue is appropriately

relegated to post-conviction relief.

DECREE

Defendant’s sentence and conviction are affirmed.

AFFIRMED.

2
Defense counsel, in arguing for a continuance/mistrial, alleged she learned of the
existence of the videotape on November 4, 2009.

8