State of Louisiana v. Allen Joseph Morehead

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-765

STATE OF LOUISIANA

VERSUS

ALLEN JOSEPH MOREHEAD

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2015-2972
HONORABLE E. DAVID DESHOTELS, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

AFFIRMED WITH INSTRUCTIONS.

H. Todd Nesom
District Attorney
Joe Green
Assistant District Attorney
John Richardson
Assistant District Attorney
Post Office Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Allen Joseph Morehead

Allen Joseph Morehead
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648
IN PROPER PERSON

AMY, Judge.

The State charged the defendant with illegal possession of stolen things over

$1,500.00 after he was found to be in possession of two allegedly stolen all-terrain

vehicles. A jury convicted the defendant as charged. The defendant was

subsequently adjudicated a second felony offender due to a prior federal

conviction. The trial court thereafter sentenced the defendant to nine years at hard

labor. For the following reasons, we affirm with instructions.

Factual and Procedural Background

In the early morning hours of May 18, 2015, the Allen Parish Sheriff’s

Office received information regarding a suspicious truck leaving a home. The

dispatcher informed Deputy Michael Dotson that the vehicle was travelling “at a

high rate of speed” and that it had “a trailer that possibly had some four-wheelers

on []it that may have been stolen.” Deputy Dotson positioned himself along the

highway, waiting for the truck to arrive at his location. He explained that after the

described white truck approached him, he “r[a]n the truck down and made a traffic

stop.” Deputy Dotson explained that, after he removed the driver from the vehicle,

he identified the driver as the defendant, Allen Joseph Morehead. The defendant’s

passenger was subsequently found to be Austin Brown.

Deputy Dotson testified that, when he questioned the defendant as to the

ownership of the all-terrain vehicles (ATVs) on the trailer, the defendant explained

that he had purchased the vehicles earlier in the day. However, the defendant

could not produce related paperwork.

According to Deputy Scotty Paul, who also responded to the dispatch, the

officers “started investigating the vehicle, the truck and the four-wheelers.” He

explained that the investigation included running “the VIN numbers on both the

four-wheelers and the trailer[,]”and that “they c[a]me back to different people that

was in the truck [sic].” The ATVs were registered to Joshua LeBlanc, whereas the

trailer was registered to Albert LeBlanc. Deputy Paul explained that the defendant

and Mr. Brown were transported to the sheriff’s office at that time.

On September 28, 2015, the State charged the defendant with illegal

possession of stolen things over $1,500.00, a violation of La.R.S. 14:69(B)(1).

After a jury convicted the defendant as charged, the State filed a bill of

information, alleging the defendant to be a habitual offender, second offense. In

the bill, the State noted both the subject conviction under La.R.S. 14:69(B)(1) and

a purported April 2012 conviction in federal district court for one count of

conspiracy to commit interstate transportation of stolen motor vehicles, a violation

of 18 U.S.C. § 371. On March 30, 2016, the court adjudicated the defendant as a

habitual offender and sentenced him to nine years at hard labor.

The trial court granted the defendant’s motion for out of time appeal. Now

appearing before the court, and in counseled assignments of error, the defendant

alleges that:

I. The State failed to sufficiently prove Allen Morehead was
guilty of possessing stolen things over $1500.

II. The trial court erred in finding Allen a second felony offender
because the State failed to meet its burden of proof regarding
any prior conviction.
III. The trial court erred by denying counsel’s motion to quash the
jury venire when Allen Morehead was forced to sit in front of
the jury pool all morning before trial, in plain view of potential
jurors, some of whom noticed he was wearing prison attire.
The court’s ruling violated Allen’s rights to be presumed
innocent and to due process.

By supplemental brief filed in proper person, the defendant contends that “the

comments of prosecution, infected and mislead [sic] the trial court and jury from

2

the ‘bias[ed] statement’ made by the prosecution, as an infringement of rights to

due process[.]” The defendant also questions whether the presence of the trial

judge’s brother-in-law on the jury resulted in “unwarranted influence on

deliberations.”

Discussion

Errors Patent

In addition to those errors assigned on appeal, La.Code Crim.P. art. 920(2)

requires consideration of errors “discoverable by a mere inspection of the

pleadings and proceedings and without inspection of the evidence.” Our review in

that regard reveals one such error. Namely, at the July 7, 2016 hearing on the

defendant’s motion for retrial, the trial court advised him that: “you have two years

that your date - - that your conviction becomes final to file post-conviction relief.”

The record indicates that the defendant thereafter filed an application for post-

conviction relief on July 29, 2016.

Louisiana Code of Criminal Procedure Article 930.8 provides that the time

period for applying for post-conviction relief is two years, beginning to run when a

defendant’s conviction and sentence become final under the provisions of La.Code

Crim.P. arts. 914 or 922. Accordingly, the trial court is directed to inform the

defendant of the provisions of Article 930.8 by sending appropriate written notice

to the defendant within ten days of the rendition of the opinion and to file written

proof in the record that the defendant received the notice. See, e.g., State v.

Thibodeaux, 16-542 (La.App. 3 Cir. 3/15/17), 216 So.3d 73, writ denied, 17-0642

(La. 12/5/17), 231 So.3d 628.

3

Sufficiency of the Evidence

We first address the defendant’s contention that the State failed to prove the

value of the items at issue beyond a reasonable doubt. In particular, he contends

that the State lacked sufficient evidence of the condition of the trailer and the

subject ATVs so as to establish fair market value of $1,500.00 or more.

At the time of the May 2015 offense at issue, La.R.S.14:69 1 provided, in

part:

A. Illegal possession of stolen things is the intentional
possessing, procuring, receiving, or concealing of anything of value
which has been 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.

1
Amended by 2017 La. Acts No. 281, § 1, La.R.S. 14:69 presently provides:

A. Illegal possession of stolen things is the intentional possessing,
procuring, receiving, or concealing of anything of value which has been 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.

B. (1) Whoever commits the crime of illegal possession of stolen things,
when the value of the things is twenty-five thousand dollars or more, shall be
imprisoned at hard labor for not more than twenty years, or may be fined not more
than fifty thousand dollars, or both.

(2) When the value of the stolen things is five thousand dollars or more,
but less than a value of twenty-five thousand dollars, the offender shall be
imprisoned, with or without hard labor, for not more than ten years, or may be
fined not more than ten thousand dollars, or both.

(3) When the value of the stolen things is one thousand dollars or more,
but less than a value of five thousand dollars, the offender shall be imprisoned,
with or without hard labor, for not more than five years, or may be fined not more
than three thousand dollars, or both.

(4) When the value of the stolen things is less than one thousand dollars,
the offender shall be imprisoned for not more than six months or may be fined not
more than one thousand dollars, or both. If the offender in such cases has been
convicted of theft two or more times previously, upon any subsequent conviction,
he shall be imprisoned, with or without hard labor, for not more than two years, or
may be fined not more than two thousand dollars, or both.

4

B. (1) Whoever commits the crime of illegal possession of
stolen things, when the value of the things is one thousand five
hundred dollars or more, shall be imprisoned, with or without hard
labor, for not more than ten years, or may be fined not more than three
thousand dollars, or both.

In State v. Kelly, 15-0484, pp. 3-4 (La. 6/29/16), 195 So.3d 449, 451, the

Louisiana Supreme Court explained that:

In reviewing the sufficiency of the evidence to support a
conviction, this court has recognized that an appellate court in
Louisiana is controlled by the standard enunciated by the United
States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979). State v. Tate, 01-1658 (La.5/20/03), 851
So.2d 921, 928. Under this standard, an appellate court “must
determine that the evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of fact that all
of the elements of the crime had been proved beyond a reasonable
doubt.” Tate, 851 So.2d at 928. In applying this standard, a
reviewing court is not permitted to second guess the rational
credibility determinations of the fact finder at trial, nor is a reviewing
court required to consider the rationality of the thought processes
employed by a particular fact finder in reaching a verdict. State v.
Marshall, 04-3139 (La.11/29/06), 943 So.2d 362, 367. It is not the
function of an appellate court to assess credibility or reweigh the
evidence. State v. Stowe, 635 So.2d 168, 171 (La.1994).

While the defendant contends that the State failed to present sufficient

evidence as to the condition and fair market value of the subject property, the

record supports the defendant’s conviction. As to condition, Joshua LeBlanc, the

owner of the 2004 and 2006 Honda ATVs, explained that those vehicles were in

“very good condition” at the time they were taken. Albert LeBlanc, the owner of

the subject 1996 trailer, testified that the trailer was “[i]n fair condition.” With

regard to the value of the items, Officer Voorhies Leger explained that he acted as

the chief investigator on the case and performed a valuation of the items in order to

advise as to the appropriate charge. Officer Leger testified as to his methodology

in arriving at the value of the items taken, noting that “low retail was above

5

$2,500.00” for the 2006 Honda and that “low retail” for the smaller, 2004 Honda

“was just over $500.00.” When asked by the State whether those figures

collectively exceeded $1,500.00, Officer Leger responded: “Yes, sir, including the

trailer. Well, just the 2006 would have been over $1,500.00.” Additionally, the

State presented exhibits, which the prosecutor described as “the reference that

[Officer Leger] used was the NADA to determine the value of the 2006 Honda and

also the 2004 Honda.”2

Given this evidence regarding both the condition and the value of the

vehicles, we find no merit in the defendant’s contention that the State failed to

prove that the stolen “things” were valued at $1,500.00 or more.

Habitual Offender Status

The defendant next questions the sufficiency of the evidence offered in

support of his adjudication as a habitual offender. He notes that, at the habitual

offender hearing, the State only presented the testimony of federal probation

officer Clint Mitchell, who explained that he had been the probation officer for the

defendant due to a prior guilty plea to a charge of conspiracy to commit interstate

transportation of stolen motor vehicles. Notwithstanding this testimony, the

defendant asserts that the State was required to prove the original guilty plea, that

he was represented by counsel when he entered that prior plea, and that the plea

was informed and voluntary. He cites State v. Zachary, 01-3191 (La. 10/25/02),

829 So.2d 405,3 in this regard.

2
The documents, respective to each ATV, bear the title “NADAGuides Motorcycle
Pricing[.]”
3
In Zachary, 829 So.2d at 407, the supreme court explained that:

Under the court’s present jurisprudence, to use a prior guilty plea to
enhance punishment under La. R.S. 15:529.1, the State need prove only the fact of

6

After review, we find that the record before the court supports the

defendant’s adjudication as a second habitual offender. Notably, when defense

counsel raised the evidentiary point at the habitual offender hearing at the close of

the State’s case, the following colloquy occurred:

MR. DEMORUELLE [Defense Counsel]:

However, we would point out to the Court now that the
State has rested, the bill of indictment has been recognized but
has not been introduced into evidence. Therefore, we object to
the multiple offender bill, number one. Number two, there is a
Boykin form and there is no collogue [sic] between Mr.
Morehead and the circuit judge and therefore this conviction
cannot be used to enhance the conviction.

MR. SUMBLER [Assistant District Attorney]:

And for the record, Your Honor, the State has already
introduced into evidence already the State Exhibit-1[sic] which
was actually the certified copy of the conviction prior to the
actual trial in this particular case. And because of that, the State
would introduce - It’s already introduced into evidence already,
so we don’t have to introduce it again. So for the record, it’s
State Exhibit-1 and it has already been previously marked into
evidence already and that’s what the State used in reference to
the habitual offender bill.

MR. DEMORUELLE:

Your Honor, he offered it as to the trial as to the
identification of Mr. Morehead and he used it under a [P]rieur
purposes [sic]. For the purpose of habitual offender bill, it has
to be re-introduced because Article 529 says that the State has
to prove beyond a reasonable doubt that there is a prior
conviction. And he has not done it in this hearing.

conviction and that the defendant was represented by counsel (or waived counsel)
at the time he entered his plea. Thereafter, the defendant bears the burden of
proving a significant procedural defect in the proceedings. State v. Shelton, 621
So.2d 769, 779-80 (La.1993). Once a defendant makes an affirmative showing of
an infringement of his rights or a procedural irregularity in plea transcript, the
State must prove the constitutionality of the predicate pleas by producing a
“perfect” transcript. If the State produces anything less than a “perfect” transcript,
for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any
combination thereof, the judge then must weigh the evidence to determine
whether the State has met its burden of proving that defendant’s prior guilty plea
was informed and voluntary, and made with an articulated waiver of the three
Boykin rights. Id., 621 So.2d at 780.

7

MR. SUMBLER:

And, Your Honor, once again, it’s already been
introduced into evidence already.

THE COURT:

Court finds that sufficient evidence has been introduced
or produced to show a prior conviction.

MR. DEMORUELLE:

Please note my objection.

As referenced in the above-passage, the State relied upon documentation of

the underlying federal conviction by reference to State Exhibit-1, which it

introduced into evidence at a pre-trial hearing conducted pursuant to State v.

Prieur, 277 So.2d 126 (La.1973). That exhibit contained evidence of both the

defendant’s conviction and, by minutes of the proceeding, his representation by

counsel. During Officer Mitchell’s testimony regarding that conviction at the

habitual offender hearing, the State noted that the documentation “ha[d] been

previously marked as State Exhibit-1[,]” presenting that exhibit to the witness. In

particular, the State asked Officer Mitchell to identify the defendant’s indictment,

contained within that exhibit, before he identified the defendant and confirmed that

the indictment had the same number as the probation case file. Given the

documentation’s prior formal introduction of the evidence regarding the federal

conviction and the State’s reliance upon that evidence at the habitual offender

hearing, we find that the trial court permissibly took notice of evidence introduced

at that prior proceeding. See State v. Muhammad, 03-2991 (La. 5/25/04), 875

So.2d 45, 49 n.9 (wherein the supreme court explained within the habitual offender

context that “the trial judge has the right to take judicial cognizance of any prior

proceeding which is part of the same case he has previously tried.”); State v.

8

Brown, 11-1656 (La. 2/10/12), 82 So.3d 1232; State v. Timmons, 44,702 (La.App.

2 Cir. 9/23/09), 22 So.3d 1074, writ denied, 09-2251 (La. 4/16/10), 31 So.3d 1053.

See also La.Code Evid. art. 201.4

Furthermore, and to the extent the defendant contests the sufficiency of the

evidence contained within State’s Exhibit-1, we note that the defendant did not file

written objections to the habitual offender allegations, as required by La.R.S.

15:529.1(D)(1):

If, at any time, either after conviction or sentence, it shall
appear that a person convicted of a felony has previously been
convicted of a felony under the laws of this state, or has been

4
Louisiana Code of Evidence Article 201, which addresses judicial notice of adjudicative
facts, provides that:

A. Scope of Article. This Article governs only judicial notice of
adjudicative facts. An “adjudicative fact” is a fact normally determined by the
trier of fact.

B. Kinds of facts. A judicially noticed fact must be one not subject to
reasonable dispute in that it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.

C. When discretionary. A court may take judicial notice, whether
requested or not.

D. When mandatory. A court shall take judicial notice upon request if
supplied with the information necessary for the court to determine that there is no
reasonable dispute as to the fact.

E. Opportunity to be heard. A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the tenor
of the matter noticed. In the absence of prior opportunity to be heard, the request
may be made after judicial notice has been taken.

F. Time of taking notice. A party may request judicial notice at any stage
of the proceeding but shall not do so in the hearing of a jury. Before taking
judicial notice of a matter in its instructions to the jury, the court shall inform the
parties before closing arguments begin.

G. Instructing jury. In a civil case, the court shall instruct the jury to
accept as conclusive any fact judicially noticed. In a criminal case, the court shall
instruct the jury that it may, but is not required to, accept as conclusive any fact
judicially noticed.

9

convicted under the laws of any other state, or of the United States, or
of any foreign government or country, of a crime, which, if committed
in this state would be a felony, the district attorney of the parish in
which subsequent conviction was had may file an information
accusing the person of a previous conviction. Whereupon the court in
which the subsequent conviction was had shall cause the person,
whether confined in prison or otherwise, to be brought before it and
shall inform him of the allegation contained in the information and of
his right to be tried as to the truth thereof according to law and shall
require the offender to say whether the allegations are true. If he
denies the allegation of the information or refuses to answer or
remains silent, his plea or the fact of his silence shall be entered on the
record and he shall be given fifteen days to file particular objections to
the information, as provided in Subparagraph (b) of this Paragraph.
The judge shall fix a day to inquire whether the offender has been
convicted of a prior felony or felonies as set forth in the information.

(b) Except as otherwise provided in this Subsection, the district
attorney shall have the burden of proof beyond a reasonable doubt on
any issue of fact. The presumption of regularity of judgment shall be
sufficient to meet the original burden of proof. If the person claims
that any conviction alleged is invalid, he shall file a written response
to the information. A copy of the response shall be served upon the
prosecutor. A person claiming that a conviction alleged in the
information was obtained in violation of the constitutions of Louisiana
or of the United States shall set forth his claim, and the factual basis
therefor, with particularity in his response to the information. The
person shall have the burden of proof, by a preponderance of the
evidence, on any issue of fact raised by the response. Any challenge
to a previous conviction which is not made before sentence is imposed
may not thereafter be raised to attack the sentence.

(Emphasis added.) Thus, La.R.S. 15:529.1(D)(1)(b) required the defendant to “set

forth his claim” as now alleged in his response to the habitual offender bill of

information.

Neither do we find merit in the defendant’s contention that La.R.S.

15:529.1(D)(1) requires a defendant only to complain of a defect in the bill.

Rather, the plain language of the statute shows that such a response is required to

preserve a claim that “a conviction alleged in the information” was obtained in

violation of the state or federal constitutions. In State v. Wise, 13-247, pp. 7-8

10

(La.App. 5 Cir. 11/19/13), 128 So.3d 1220, 1225-26, writ denied, 14-0253 (La.

9/12/14), 147 So.3d 703, the fifth circuit explained:

In his second pro se assignment of error, defendant argues the
trial court erred in denying his Motion to Quash Multi-Bill in which
he alleged that prosecutions for two of the alleged predicate offenses
were not instituted in a timely manner. Specifically, defendant
contends that the State exceeded the time limitation for screening and
accepting the charges in predicate case numbers 288-157 and 358-
790, now used by the State to charge defendant as a fourth felony
offender. Thus, defendant maintains that these predicate offenses
should have been quashed.

A defendant has the right to challenge the constitutional
sufficiency of previous convictions through a written response to the
State’s filing of a habitual offender bill of information. See La. R.S.
15:529.1(D)(1). A defendant must make such a response in order to
preserve challenges to previous convictions for appellate review. Id.;
State v. Harris, 44,402 (La.App. 2 Cir. 6/24/09), 20 So.3d 1121, writ
denied, 09-2303 (La.4/23/10), 34 So.3d 271. In addition, if a
defendant does not concede the validity of previous convictions, he is
entitled to a formal hearing. La. R.S. 15:529.1D(1)(b). A defendant’s
response to the State’s filing of a habitual offender bill of information
is often styled as a “motion to quash.” See, e.g. State v. Zachary, 08-
634 (La.11/21/08), 995 So.2d 631. Pursuant to La. R.S.
15:529.1D(1)(a), a defendant is required to file particular objections to
the bill within 15 days after the defendant denies the allegation of the
information, refuses to answer, or remains silent.

Here, defendant did not file his pro se motion to quash until a
month after the habitual offender hearing and his adjudication as a
fourth felony offender, and therefore the trial court did not err in
denying defendant’s motion to quash as untimely. See Harris, supra.

This assignment lacks merit.

Motion to Quash – Jury Venire

The defendant next questions the trial court’s denial of his motion to quash

the jury venire, an issue raised by defense counsel after the defendant sat before

potential jurors in “prison attire.” In that regard, the record contains the following

colloquy:

11

MR. DEMORUELLE:

I was not here, Your Honor, when that jury was drawn.
Mr. Morehead was not here when that jury was drawn.

THE COURT:

Yes, Mr. Morehead was.

MR. DEMORUELLE:

I’d like to make a motion to quash the entire jury venire
as far as Mr. Morehead goes because he was in prison garb all
morning long sitting here.

MR. SUMBLER:

First of all, for the record, he’s not in prison garb now.
Second for the record, when we first initially called the panel,
we asked the - the judge asked the State who was going to go
first and we said Allen Morehead. For the record, we took a
break and that’s when you had your client to come [sic] in and
stated that he wanted to plead straight up. Then we took another
break and that’s when your client then decided to withdraw his
plea. So we’re back at square one. It was Allen Morehead
initially. Allen Morehead is not prejudiced in this matter.

THE COURT:

All right. As far as the panel that’s in the box at this time,
the Court will acknowledge that we did call the case.

MR. DEMORUELLE:

Of Mr. Ngyuen.

THE COURT:

Of Mr. Ngyuen. However, all we did was impanel the
jury and Mr. Morehead was here the entire time. Is that right?

MR. SUMBLER:

That’s correct.

THE COURT:

All right. There’s been no questions asked of the panel
yet. Not one question. All we did was qualify the jury as to who

12

is statutorially [sic] ineligible and those guys were excused.
We impaneled eighteen people who are sitting in the box at this
time. Although, albeit, those eighteen were impaneled and the
case of Kevin Ngyuen was called. But I cannot see any
prejudice by having this jury hear this case of Mr. Morehead.
There’s no way, I think, any prejudice can be shown. So the
Court will deny the motion to quash. Now with respect to the
prison garb, what’s your take on that, Mr. Sumbler?

MR. SUMBLER:

Initially Allen Morehead came - Initially Allen Morehead
came into the courtroom with the prison garb on. However,
since the break, we switched out and put a shirt on.

MR. DEMORUELLE:

Yeah, after these eighteen people in that box were seated,
we took a break and he put a shirt on. He was here in front of
the entire venire since 9:00 o’clock this morning.

MR. SUMBLER:

And also for the record, the actual prison garb that you’re
referring to had no markings on there and no identification on
there or anything. It was basically scrubs.

MR. DEMORUELLE:

And he was sitting next to another person who had the
identical clothing on.

MR. SUMBLER:

And also, Mr. Demoruelle did not make the objection
then.

THE COURT:

That’s what the Court is concerned about. Since 9:00
o’clock or at least by 10:00 o’clock. And right now it’s almost
1:30. So it’s been at least two or three hours that Mr. Morehead,
the defendant, was sitting with his prison clothes. The Court
does acknowledge that is was not like bright prison clothes with
stripes or bright orange. It was a khaki color. It was khaki color
identical to scrubs. And based on the fact - And also, the Court
will advise the jury that a person who is in jail - and the Court
always advises the jury that just because a person is under
indictment and just because they are arrested, just because they

13

may be in jail at the time of the trial, is something that is not be
considered as evidence of guilt. So Mr. Demoruelle’s motion is
denied.

Following review, we leave the trial court’s denial of the motion to quash

undisturbed. Significantly, this is not a case in which the defendant was compelled

to stand trial in readily identifiable prison attire over his express objection. Such

an occurrence “infringes upon his presumption of innocence and denies the

defendant due process of law.” State v. Spellman, 562 So.2d 455 (La.1990). The

supreme court described such an occurrence as inherently prejudicial in nature

which will be tolerated only where justified by an essential state interest that is

specific to the subject trial. Id.

Instead, the trial court in this case considered exposure of potential jurors to

the defendant’s attire which occurred without prior objection by the defendant. In

State v. Ellis, 487 So.2d 752 (La.App. 3 Cir.), writs denied, 492 So.2d 1216, 1217

(La.1986), a panel of this court considered a case involving jointly-tried defendants

who alleged that they were denied a fair and impartial trial as a result of exposure

to potential jurors, or jurors, while dressed in clothing provided by the detention

facility. The panel rejected the defendants’ claim, explaining that:

The defendants contend they were denied a fair and impartial
trial as a result of their exposure to the jury venire in the hall, and their
presence in the courtroom while dressed in prison garb and
handcuffed.

It is alleged by the defendants specifically that they were
brought through the courtroom halls in orange prison jumpsuits and
shackled where jurors were probably present. It is further alleged
that, while in the courtroom the defendants were dressed in khaki
shirts and slacks provided by the sheriff’s department (apparently
regularly worn by prison trustees). There is no contention the
defendants were ever handcuffed while in the courtroom, and only
defendant Ellis entered the courtroom while dressed in the orange
jumpsuit, and it appears that it was at his own request to look for his
mother.

14

The defendants also assign as error the trial court’s denial of the
defendants’ challenge for cause of juror Herbert Ryder, who indicated
he had seen defendants in prison clothes and handcuffed in the
hallway.

With the exception of the voir dire examination of prospective
juror Ryder, nothing in the record shows any prejudice on the part of
any other jurors resulting from any of them having possibly seen
either of the defendants in prison garb. The examination of juror
Ryder was done outside the presence of any of the other prospective
jurors.

Upon examination of Herbert Ryder, the judge was satisfied
that the juror was not biased as a result of having seen the defendants
in prison garb and handcuffed, and denied a challenge for cause with
respect to this juror. Specifically, Ryder stated he believed it was
normal procedure for anyone coming to trial to be handcuffed and he
would infer from that no guilt whatsoever. If a prospective juror is
able to declare to the trial court’s reasonable satisfaction that he could
render an impartial verdict according to the law and evidence, a
challenge for cause to that juror is properly denied. State v.
Claiborne, 397 So.2d 486 (La.1981). The trial court is vested with
broad discretion in rulings on challenges for cause, and such rulings
will not be disturbed on appeal absent a showing of an abuse of
discretion. State v. Benoit, 440 So.2d 129 (La.1983).

There is nothing in the record which shows that the use of the
orange jumpsuits and/or handcuffs, while the defendants were being
transported to the trial court, prejudicially affected the defendants or
warrants overturning their conviction. See State v. Rome, 432 So.2d
207 (La.1983); State v. Vizena, 454 So.2d 1291 (La.App. 3rd
Cir.1984).

Although not shown by the record, defendants allege, in briefs,
that they were also dressed in khaki shirts and slacks issued by the
parish prison for a short time in the courtroom while the selection of
prospective jurors was being taken up by the court. First of all, it is
not clear at all that such khaki attire is readily recognizable as prison
garb, but even if it were, there is again no showing whatsoever that
defendants were denied a right to an impartial trial.

Ordinarily a defendant before the court should not be shackled
or garbed in any manner destructive of the presumption of innocence
and of the dignity and impartiality of the judicial proceedings. Illinois
v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Estelle
v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). But
the mere fact that a defendant is so dressed before the jury does not, in
and of itself, constitute a basis for reversal. The defendant must show,
or the record must reflect, that he was prejudicially affected to the

15

extent that reversal is warranted. State v. Clark, 340 So.2d 208
(La.1976); State v. Rome, supra; State v. Vizena, supra. With the
exception of juror Ryder, neither the defendants’ briefs, nor the
record, reflects which, if any, other jurors even saw the defendants
before they changed into street clothes.

Accordingly, assignments of error 1, 2 and 4, with respect to
the defendants wearing prison garb, are without merit.

Id. at 753-54.

As did the panel in Ellis, 487 So.2d 752, the trial court here considered the

nature and appearance of the complained-of attire in rejecting the defendant’s

argument. Furthermore, it is unclear which venire members, if any, who may have

ultimately sat on the jury, recognized or appreciated the origin of the defendant’s

clothes. For instance, the defendant notes that one potential juror recognized the

clothing as prison garb,5 however that juror was excused from service. Given these

5
Earlier in the proceedings, and before the trial court ruled on the defendant’s motion to
quash, the following colloquy occurred:

THE BAILIFF:
Ricky Johnson, number ninety-seven.

MR. JOHNSON:
The defense attorney has already advised me he will not call me to a jury.

THE COURT:
Okay. You do know that those two prisoners are in prison garb?

MR. JOHNSON:
Yes, sir. Are they not supposed to be?

THE COURT:
Please don’t say anything. I’m not going to say anything unless the lawyer
brings it up. That could cause a problem.

MR. JOHNSON:
Okay.

THE COURT:
Tomorrow or whenever. Or, let me tell you, I guess just be quiet about it
and let the chips fall where they may.

MR. JOHNSON:
About this?

16

factors collectively, and a lack of clarity in the record as to any prejudice resulting

from the defendant’s attire, we conclude that this assignment lacks merit.

Statement by Prosecutor

By supplemental brief filed in proper person, the defendant complains that

the State referred to him as a “thief that keeps on stealing” before the jury. The

record indicates that defense counsel objected after the State’s reference in this

regard, which was made during opening argument. During a bench conference,

which is transcribed and included in the record, the State maintained that its

reference was consistent with the trial court’s ruling at the Prieur hearing.

However, finding that the prior crimes evidence was admissible for limited

purposes, the trial court advised the State not to continue with that line of

reasoning and to remove a slide, which had been prepared by the prosecution as

part of their presentation.

Recently, a panel of this court addressed an opening statement by the State

in which the prosecutor included the remark, “[a]s humans evil is among us every

day in a different shape[.]” State v. Prince, 16-260, p. 21 (La.App. 3 Cir. 2/1/17),

211 So.3d 481, 495, writ denied, 17-0410 (La. 11/28/17), 230 So.3d 222. As in the

present case, the defendant in Prince objected immediately and renewed his

objections after similar remarks occurred later in the opening. This court

explained:

THE COURT:
You’re asking to be excused?

MR. JOHNSON:
Yes, sir.

THE COURT:
The Court will excuse you. Mr. Johnson is excused.

17

Later, Defendant renewed his objection and asked the trial court
to instruct the jury to disregard the State’s remarks. The trial court
advised that it would consider giving an instruction to the jury to
disregard the State’s comments and to not consider sympathy and
prejudice. During its closing instructions to the jury, the trial court
instructed the jurors that opening statements and closing arguments
were not to be considered as evidence and that they were not to be
“influenced by sympathy, passion, prejudice, or public opinion.” As
Defendant notes, the State returned to the theme of “evil” in its
closing argument. However, Defendant did not object at that point.
Appellate counsel suggests an objection during closing argument
would have been fruitless since the trial court had already denied
Defendant's challenge to the “evil” line of argument.

....

[T]he State . . . notes La.Code Crim.P. art. 771:

In the following cases, upon the request of the defendant
or the state, the court shall promptly admonish the jury to
disregard a remark or comment made during the trial, or
in argument within the hearing of the jury, when the
remark is irrelevant or immaterial and of such a nature
that it might create prejudice against the defendant, or the
state, in the mind of the jury:

(1) When the remark or comment is made by the judge,
the district attorney, or a court official, and the remark is
not within the scope of Article 770; or

(2) When the remark or comment is made by a witness or
person other than the judge, district attorney, or a court
official, regardless of whether the remark or comment is
within the scope of Article 770.

In such cases, on motion of the defendant, the court may
grant a mistrial if it is satisfied that an admonition is not
sufficient to assure the defendant a fair trial.

While Defendant objected to the remarks at issue, he did not
request a mistrial. As mentioned earlier, Defendant renewed his
objection after the opening. The trial court stated that it would advise
the jury not to be moved by emotion and ultimately gave such an
instruction. Thus, we find the dictates of La.Code Crim.P. art. 771
were satisfied.

We also find there is little likelihood the remarks influenced the
jury and contributed to the verdict. Pursuant to Williams, we find that
the possible influence of the remarks does not rise to the level of

18

thoroughly convincing this court that they improperly influenced the
verdict. As discussed in the previous assignment of error, the core of
the case was the credibility of Michael Hayes, whose testimony was
corroborated by other evidence at trial and obviously believed by the
jury. The State’s appeal to the general idea of evil did not clearly have
a bearing on the credibility issue. Also, a true contemplation of
general evil might just as easily have led the jury to doubt Hayes. It is
clear he is not a “model citizen,” and the district court allowed
Defendant to explore the issue of whether Hayes was merely trying to
save his own neck at Defendant’s expense.

For the reasons discussed, this assignment lacks merit.

Id. at 497-99. The court also noted that such remarks are subject to a harmless

error analysis. Id.

As in Prince, 211 So.3d 481, the trial court instructed the jury that the

attorneys’ statements were not evidence and that the opening and closing

statements were not evidence. It also instructed the jury that the “other crimes”

evidence introduced at trial could be considered only for a limited purpose and that

the defendant could not be found guilty of the instant offense simply because he

may have committed another offense.6 Given the measures taken by the trial court

in response to the defendant’s objection, it is unclear what influence the State’s

remark may have had on the jurors. Additionally, the State presented clear

6
In this regard, the trial court instructed the jury that:

Statements made by the attorneys at the time during the trial are not evidence. In
the opening statements the attorneys were permitted to tell you the facts which
they expected to prove. In closing arguments the attorneys were permitted to
present their contentions about what the evidence has shown or not shown and
what conclusions they think should be drawn from the evidence. These opening
statements and closing arguments are not evidence. . . . You have heard evidence
of other prior crimes, wrong or acts attributed to the defendant for which he is not
on trial. Evidence that the defendant was involved in the commission of offenses
other than the offense for which he is on trial is to be considered only for limited
purpose. 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
sole purpose for which such evidence may be considered is whether it tends to
show proof of motive, opportunity, intent, preparation, plan, knowledge, absence
of mistake or accident concerning the present case. Remember the accused is
only on trial for the offense charged. You may not find him guilty of this offense
merely because he may have committed another offense.

19

evidence supporting the defendant’s conviction. Accordingly, any error was

harmless. See Prince, 211 So.3d 481.

Jury Member

In his final supplemental assignment of error, the defendant claims that the

trial judge’s brother-in-law was the jury foreman and that his presence during

deliberations raises the possibility of an unwarranted influence on deliberations.

The transcript of jury selection confirms that the trial judge’s brother-in-law was in

the jury venire and, in turn, on the jury.

We first point out that the defendant did not object to the trial judge’s

brother-in-law’s presence on the jury. See La.Code Crim.P. art. 841(A) (providing

that “[a]n irregularity or error cannot be availed of after verdict unless it was

objected to at the time of the occurrence.”). Furthermore, the defendant has not

demonstrated any prejudice relating to such a relationship. In State v. Washburn,

16-335, pp. 13-15 (La.App. 3 Cir. 11/2/16), 206 So.3d 1143, 1151-53, writ denied,

16-2153 (La. 9/15/17), 225 So.3d 488, a panel of this court discussed a defendant’s

concern regarding relationships of jurors as follows:

In his third assignment of error, the defendant argues that the
trial court erred in allowing Michael Sweet to serve as a juror. During
voir dire, Mr. Sweet admitted that a number of years before trial, he
worked at the same company as a man bearing the same name as the
victim’s maternal grandfather, but was unsure if it was the same man.
Defense counsel asked Mr. Sweet if he did things such as “go to
dinner” or “squirrel hunt with him,” which Mr. Sweet denied.

However, during the trial, the victim’s mother, who is also the
defendant’s wife, testified in open court that when she was a teenager,
she heard her father refer to Mr. Sweet as his “good buddy” several
times, but that the last time she could recall her father speaking with
Mr. Sweet was “probably over 10 years ago[.]”

The victim’s grandfather then testified that while he had
worked at the same company as Mr. Sweet, the extent of their
socializing outside of work had been one deer hunting trip and a

20

transaction in which Mr. Sweet sold him a boat. The victim’s
grandfather further stated that Mr. Sweet had left the company “10
years or so ago” and that he had not seen Mr. Sweet in the intervening
years, save for a chance encounter at Walmart a couple of years ago.
The trial court did not reexamine Mr. Sweet.

Upon hearing this testimony, the trial court allowed Mr. Sweet
to remain on the jury, finding that “[s]imply working ten years ago as
co-workers does not establish that you could reasonably conclude that
he would be influenced in any way or prejudicial [sic].” The
defendant argues that Mr. Sweet should have been removed from the
jury “out of an abundance of caution,” and the court’s decision to
allow Mr. Sweet to remain on the jury prejudiced the defendant.

On review, we are mindful that trial courts have wide discretion
in determining whether to reject a juror for cause, and those
determinations cannot be disturbed absent an abuse of discretion.
State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 476 U.S. 1178,
106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). In this instance, we find that
the record supports the trial court’s ruling. According to State v.
Holland, 544 So.2d 461, 465 (La.App. 2 Cir. 1989), writ denied, 567
So.2d 93 (La.1990) (citations omitted):

Disclosure during the trial that a juror knows or is related
to a witness or the victim is not sufficient to disqualify a
juror unless it is shown that the relationship is sufficient
to preclude the juror from arriving at a fair verdict. The
connection must be such that one must reasonably
conclude that it would influence the juror in arriving at a
verdict.

In State v. Wilson, 01-625 (La.App. 3 Cir. 12/28/01), 806 So.2d 854,
writ denied, 02-0323 (La. 9/13/02), 827 So.2d 1121, the defendant
argued that the trial court erred in failing to dismiss a juror who knew
the sister of a State witness. After being sworn in, the juror admitted
that the witness’s sister stayed at her house four or five days a week.
However, citing to Holland and its progeny, the court found that the
trial court had not erred in failing to dismiss the juror.

Additionally, in State v. Mayeux, 06-944 (La.App. 3 Cir.
1/10/07), 949 So.2d 520, the defendant argued that the trial court erred
in denying his motion for a new trial, alleging that one of the jurors
had failed to disclose that he had personal and business relationships
with several of the trial participants. After the trial, the juror testified
that he rented a house to D.G., the brother of the victim’s stepfather,
the night after the verdict was rendered, and that he had revealed
during voir dire that he personally knew many of the trial participants.
The juror also testified that he had never discussed the case with D.G.
and that the rental agreement was unrelated to the case. The court

21

found that the trial court had not abused its discretion, stating that the
defendant “failed to show the jury foreman had a close personal and
business relationship with the victim’s family as claimed, or that the
connection between the juror and the victim’s step-uncle was such
that would have influenced the juror’s decision as to Defendant’s guilt
or innocence.” Id. at 534.

More recently, in State v. Miller, 10-237 (La.App. 3 Cir.
11/3/10), 49 So.3d 1028, writ denied, 10-2668 (La. 4/25/11), 62 So.3d
86, the defendant argued that the trial court erred by failing to remove
a juror who knew the defendant’s ex-wife, who was a State witness.
The juror testified during voir dire that the defendant’s ex-wife was
her “step-grandson’s new wife’s sister,” whom she had met the
weekend prior to voir dire, and indicated that this relationship would
not affect her ability to serve as a juror. Id. at 1035. The panel
affirmed the trial court’s decision, stating that the record did not
reflect that the juror “had the kind of personal relationship with the
witness that would influence her decision regarding the defendant’s
guilt or innocence.” Id. at 1038-39 (citing Mayeux, 949 So.2d 520,
and Wilson, 806 So.2d 854).

Given this jurisprudence, and based on the record before us, we
find no abuse of discretion in the trial court’s ruling. Rather, there is
no indication that the previous work relationship between Mr. Sweet
and the victim’s grandfather would influence Mr. Sweet’s decision as
a juror. Accordingly, we find that this assignment of error lacks merit.

In consideration of the discussion in Washburn, 206 So.3d 1143, and in light

of the circumstances of this case, we conclude that the defendant’s assignment of

error lacks merit. The defendant neither objected to the subject juror’s service nor

demonstrated how the juror’s relationship to the judge—a neutral arbiter—would

result in unwarranted influence.

DECREE

For the foregoing reasons, the conviction of the defendant, Allen Joseph

Morehead, as well as the adjudication and sentence as a habitual offender is

affirmed. The trial court is directed to inform the defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant

22

within ten days of the rendition of this opinion and to file written proof in the

record that the defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

23