State of Louisiana v. Isaac Jerome King

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-772

STATE OF LOUISIANA

VERSUS

ISAAC JEROME KING

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 300,968
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

John T. Giordano
Assistant District Attorney
Ninth Judicial District Court
P.O. Drawer 1472
Alexandria, LA 71309
(318) 473-6650
Counsel for Appellee:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457-2057
(318) 572-5693
Counsel for Defendant/Appellant:
Isaac Jerome King

Isaac Jerome King
IN PROPER PERSON
Louisiana State Penitentiary
Angola, LA 70712

DECUIR, Judge.

Defendant, Isaac Jerome King, was charged with armed robbery, a violation

of La.R.S.14:64; simple robbery, a violation of La.R.S.14:65; aggravated battery, a

violation of La.R.S.14:34; and possession of a firearm by a convicted felon, a

violation of La.R.S.14:95.1.

Defendant was found guilty as charged and was sentenced as follows: 1)

armed robbery – fifty years at hard labor without benefit of probation, parole, or

suspension of sentence, to run consecutively with the sentence for possession of a

firearm by a convicted felon; 2) simple robbery – seven years at hard labor to run

concurrently with all other sentences; 3) aggravated battery – ten years at hard

labor to run concurrently with all other sentences; 4) possession of a firearm by a

convicted felon – ten years at hard labor without benefit of probation, parole, or

suspension of sentence, to run consecutively with the sentence for armed robbery.

Defendant was also adjudicated a second felony offender, and his sentence

for armed robbery was vacated, and he was sentenced to serve sixty years at hard

labor.

Defendant is now before this court asserting two assignments of error. He

contends the trial court erred in failing to grant his motion for mistrial, and the trial

court erred in denying his hearsay objection to testimony regarding other crimes

evidence.

FACTS

At trial, Brice Patin and Jessie Roden both testified similarly. Patin’s

testimony indicated that he stopped at the traffic light at the intersection of Chester

and Monroe Streets in Alexandria, and Defendant flagged him down and asked for

a ride to the store. Roden testified that Patin asked Defendant if he needed a ride.

Patin stopped at a store, and Defendant informed Patin that he did not want to go to

that particular store. Defendant then asked to go to a store on Bolton Avenue.

On the way to the store on Bolton, Patin stopped at a stop sign, and two men

Defendant said were with him got into Patin’s vehicle. One of the men who got

into the vehicle tried to sell Roden marijuana. The same man took Roden’s cell

phone from her lap and took off running. Roden ran after him. Patin followed in

his vehicle. Patin then got out and went to Roden. At that time, the remaining two

men were still in Patin’s vehicle. Roden used Patin’s phone to call her own phone.

The man who answered said he would return her phone in exchange for twenty

dollars. Roden agreed and, when the man went to hand her the phone, Patin said

the phone was not worth twenty dollars. When Patin turned around, Defendant

was holding a gun and demanded his money.

Patin threw everything from his pockets onto the ground except $600.00 he

had from selling a car. Patin testified that he put the envelope with the money back

into his pocket. Defendant demanded the money. As Patin reached into his

pocket, Roden stepped between Patin and the gun. Patin pushed Roden out of the

way. He and Defendant then struggled on the ground. Patin threw his phone to

Roden and told her to call the police. He and Defendant fought for five to ten

minutes. Patin then stood up, and Defendant hit him across the eye with the butt of

the gun twice, knocking him out. As he hit the ground, Patin heard someone say,

―come on, come on, come on, Jerome, let’s go.‖ Roden also heard someone say

―Jerome, they’re calling the cops.‖ Patin testified that when he regained

consciousness his money and Roden’s phone were gone. Roden testified that her

purse was also gone.

Patin and Roden made in-court identifications of Defendant. They also

identified Defendant in a photographic lineup.

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As a result of being hit, Patin received seven stitches and had brain trauma.

Patin testified that Roden was bitten by Defendant and received a tetanus shot.

Roden did not know who bit her.

Defendant testified that he did not know Patin and Roden and did not take

anything from them. Additionally, he did not own a gun. He admitted he had prior

convictions for distribution of cocaine and conspiracy to distribute cocaine.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in denying his motion for mistrial

which was based on the use of other crimes evidence.

At issue in this assignment of error is testimony regarding events that

occurred on January 7, 2010. In its opening statement, the State set forth the

following regarding the events of January 7: ―about a week later Detective

Howard runs across, uh, an incident whereupon the defendant was found to be in a

backyard where a 38 snub nose revolver was also recovered. Independent of this

and not in criminal activity but it puts him in location with the gun.‖

Sergeant Ronnie Howard was questioned about the events of January 7 as

follows:

Q So at that point you had a name Jerome, the race, and
approximate age and physical characteristics of a suspect, but
you didn’t have any one suspect in mind at that point, is that
correct?

A Not at that point.

Q What did you do with information? What did you begin doing?

A I ...

Q ... to try and identify who Jerome might be?

A I started looking for reports with, uh, the name Jerome in them
as they came in, and, uh, actually came upon a report that
happened on January 7th. Where a Jerome was in the presence
of a firearm when, uh, police were called to uh -- Midway.

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Q Okay. And, and in checking out that report did you find that in
fact someone by the name of Isaac Jerome King was discovered
to be in a backyard with a small handgun along with another
person as well, correct?

A That is correct.

Q All right.

MR. KUTCH:

I want to put on the record and [sic] objection of the
other crimes, evidence, and I’m going to move for a mistrial.

THE COURT:

All right, well, uh, your objection’s overruled. This is
one of the things that we discussed.

MR. KUTCH:

I realize, your Honor, but I still need to put it on the
record.

THE COURT:

All right. You’re objection’s overruled.

EXAMINATION CONTINUED BY MR. LAMPERT:

Q He -- we’re not saying that he was committing a crime at that
point, we’re just saying you discovered a report showing that he
was in the same backyard with a handgun?

A That is correct.

Defendant contends ―[t]his other crimes evidence was the January 7, 2010,

arrest of Mr. King for having a firearm while in someone’s backyard, and the

firearm allegedly found in the incident.‖

Defendant cites La.Code Evid. art. 404(B)(1), which provides:

Except 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. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in
advance of trial, of the nature of any such evidence it intends to
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introduce at trial for such purposes, or when it relates to conduct that
constitutes an integral part of the act or transaction that is the subject
of the present proceeding.

Defendant sets forth the criteria necessary for other crimes evidence to be

admissible. He notes the State did not seek a Prieur hearing. Instead, evidence of

his involvement in the January 7, 2010 incident was adduced, and the handgun

seized at that time was brought to trial for the victims and the investigating officer

to examine and testify about. Defendant contends the trial court erred in denying

his objections to the State’s eliciting testimony regarding an unrelated offense and

questioning witnesses about an unrelated handgun. Defendant alleges this allowed

the State to wave a dangerous-looking revolver throughout the trial in order to

show he was a bad person. Defendant also alleges the handgun had no probative

value. Further, it had nothing to do with the December 26, 2009 offense.

Defendant contends the State made no effort to argue that the handgun and

testimony regarding the indictment on January 7 were admissible pursuant to any

exception listed in La.Code Evid. art. 404(B). However, even if the evidence had

some minimal independent relevance, the probative value was substantially

outweighed by the dangers of unfair prejudice to the jury, confusion of the issues,

misleading the jury, and undue delay or waste of time.

Defendant contends the only reason the State gave for using the evidence

and testimony at issue was to show how the photo lineup was set up. However,

that did not explain its extensive use of an unrelated handgun, and it was not

needed to explain the photo lineup.

The State contends other crimes evidence is not applicable in this case. The

State additionally contends Defendant’s possession of the firearm on January 7,

2010, was an integral part of and a continuation of the crime on December 26,

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2009. Furthermore, the procedural requirements of Prieur are not applicable to

evidence that forms an integral part of the charged offense.

We find the State did not present other crimes evidence at the trial of this

matter. In State v. Smart, 05-814 (La.App. 5 Cir. 3/14/06), 926 So.2d 637, writ

denied, 06-1225 (La. 11/17/06), 942 So.2d 533, the fifth circuit found that an

officer’s comment that the defendant was taken into custody on an unrelated matter

was not inadmissible evidence of other crimes or bad acts because it did not refer

to any specific crime or bad act committed by the defendant and was vague and

ambiguous.

In State v. Marsalis, 04-827 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, the

fifth circuit concluded testimony that the defendant was housed in the maximum-

security section of jail where inmates who had already been sentenced were housed

was not other crimes evidence and was admissible as proof of the charged offense

of battery on a correctional employee. Further, the testimony did not specify any

prior bad acts by the defendant, and by the nature of charged offense, it was clear

that the defendant was in jail for something that suggested that he committed or

allegedly committed prior bad acts.

In State v. Celestine, 98-1166 (La.App. 5 Cir. 3/30/99), 735 So.2d 109, writ

denied, 99-1217 (La. 10/8/99), 750 So.2d 178, a police officer was asked if he

attempted to identify the person who broke into the victim’s home. The officer

stated that he ran the subject’s name through the national crime computer and got a

past criminal history. The defendant objected and requested a mistrial. The fifth

circuit found the officer did not refer to any specific crime committed by the

defendant and, under those circumstances, there was no abuse of discretion in the

trial court’s refusal to declare a mistrial.

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In State v. Malone, 43,548 (La.App. 2 Cir. 11/19/08), 998 So.2d 322, writ

denied, 09-198 (La. 10/30/09), 21 So.3d 275, the second circuit found that

testimony from the victim’s cousin that the defendant had loaded and shot the gun

a month before she shot the victim was not other crimes evidence and was

admissible.

The State’s comments in its opening statement and Sergeant Howard’s

testimony indicated Defendant was in the presence of a firearm. Contrary to

Defendant’s assertion, there was no testimony that he was arrested or any details of

a crime given by any witness. As there was no statement that Defendant was in

actual or constructive possession of the firearm, there was no evidence of a bad act

or other crime. Accordingly, the trial court did not abuse its discretion in denying

defense counsel’s motion for mistrial.

There was no objection when Patin and Roden were shown the handgun or

questioned about it. However, there was an objection, which the trial court

sustained, when the State sought to have the handgun admitted into evidence.

Because Defendant did not object when Patin and Roden were shown and

questioned about the handgun, any issue regarding the handgun is not properly

before the court for review. La.Code Crim.P. art. 841.

For the reasons asserted herein, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends the trial court erred in

denying his hearsay objection as to testimony regarding other crimes evidence.

At trial, Sargent [sic] Howard was questioned as follows:

Q And at that point, that initial interview and getting the medical
records, did you know who the suspect was at that point?

A I didn’t know who it was.

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Q Did you have any idea what you were even looking for at that
point or who you were looking for in any manner?

A Uh, from talking to the victim I had an idea that I was looking
for a black male, uh, in his early twenties.

Q Okay. Did you have any names to go from?

A Uh, yes, early on in the. . .

MR. KUTCH:

I’m going to object, your Honor. If the name came
from some third party that’s hearsay.

THE COURT:

Okay.

MR. LAMPERT:

It’s all going to show why he did what he did.

THE COURT:

It’s going to show why he did what he did and is
intended for that purpose and not for the truth of the
matter. So you may answer. You’re objection’s
overruled.

Defendant contends the State’s use of other crimes evidence without any

effort to produce non-hearsay witnesses to testify about the circumstances

surrounding them clearly violated his right to confront and cross-examine all

witnesses against him, as raised by his hearsay objection to the line of questioning.

In State v. Rainey, 470 So.2d 422 (La.App. 3 Cir. 1985), the State asked a

witness during cross-examination if she knew whether the defendant had ever been

previously convicted of anything. At that time, defense counsel did not object to

the question on the grounds that the State was trying to introduce other crimes

evidence. Instead, defense counsel objected solely on the grounds that the

witness’s answer would be hearsay. On appeal, it was alleged for the first time that

the State’s cross-examination of the witness concerning the defendant’s prior

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convictions was highly prejudicial and should not have been allowed by the trial

court. This court found that defense counsel did not object on the grounds that the

State was introducing evidence of other crimes; thus, La.Code Crim.P. art. 841

precluded the defendant from raising the objection for the first time on appeal.

The case before the court is exactly like Rainey in that defense counsel

objected as follows: ―I’m going to object, your Honor. If the name came from

some third party that’s hearsay.‖ This objection did not refer to other crimes

evidence. The error complained of was not first asserted in the trial court.

Accordingly, this assignment will not be considered by this court.

DECREE

The Defendant’s convictions are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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