State Of Louisiana VS Kelly Keaghey
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0989 STATE OF LOUISIANA VERSUS KELLY KEAGHEY MAN Judgment Rendered December 22 2010 Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No 701664 The Honorable W Ray Chutz Judge Presiding Scott M Perrilloux Counsel for Appellee District Attorney State of Louisiana Patricia Parker Assistant District Attorney Amite Louisiana Bertha M Hillman Thibodaux Louisiana Counsel for DefendantAppellant Kelly Keaghey BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY I The defendant Kelly Keaghey was charged by bill of information with unauthorized entry of a place of business a violation of La R S 4 62 14 count 1 and simple burglary a violation of La R 14 62 count S 2 He pled not guilty and following a jury trial was found guilty as charged on both counts For the unauthorized entry of a place of business conviction count 1 the defendant was sentenced to six years at hard labor For the simple burglary conviction count 2 the defendant was sentenced to twelve years at hard labor The sentences were ordered to run concurrently The defendant now appeals designating one assignment of error We affirm the convictions and sentences FACTS On November 10 2006 a red Ford F150 pickup truck was stolen from Gateway Ford Gateway an automobile dealership in Ponchatoula The truck belonged to a customer who had brought it to Gateway for body work Ponchatoula Police Detective John Cieutat obtained and viewed the surveillance video of the theft He testified at trial that the video showed a white male loosening the lock on the sliding gate and another white male driving the truck out of Gateway The male at the gate closed the gate and entered the truck and together they left the premises The burglary was at night and the Gateway lighting was low As such the quality of the video was poor and Detective Cieutat could not identify the two individuals Subsequently Mississippi the stolen truck was stopped by the Ronald Lumbley who was in the truck was police in arrested Detective Cieutat interviewed Lumbley who provided a written statement Lumbley testified at trial that he and the defendant went to Gateway and Lumbley loosened the bolt on the gate with channel lock pliers entered 2 Gateway and took the Ford truck As Lumbley drove around to the front the defendant opened the gate to allow Lumbley to exit the premises Lumbley and the defendant then rode around in the truck and smoked crack Lumbley was asked at trial to read the written statement that he provided to Detective Cieutat to the jury Complying with the request Lumbley stated I was with Kelly Keaghey Red when we went into Gateway Ford in Ponchatoula Louisiana I drove a red Ford F150 to the We then left gate where Kelly had it opened waiting Ponchatoula and traveled to Picayune Mississippi where the vehicle was towed and impounded by the Picayune Police Department Teresa Anthony the owner of the stolen truck testified at trial that after she settled with her insurance company which at that point owned the truck she was asked to remove any possessions she had remaining in the truck At the tow yard she found a lot of property in the truck which did not belong to her such as cigarettes men clothing and tools including a tool s that looked like a chain cutter or bolt cutter She also found a paycheck stub with the name Keaghey on it The defendant did not testify at trial ASSIGNMENT OF ERROR NO 1 In his sole assignment of error the defendant argues the trial court erred in denying his motion for a mistrial Specifically the defendant contends the trial court should have granted his motion for a mistrial because a State witness made references to other crimes evidence s The defendant also contends the trial court failed to admonish the jury The relevant exchange took place on crossexamination between defense counsel and Detective Cieutat Q Now when he indicated to you that Kelly Keaghey was the guy with him at Gateway which you couldn tell by the video t 3 did you do anything to confirm or corroborate what he was saying A I tried to locate Mr Keaghey several times to no avail and then I did receive some information that placed Mr Keaghey and Mr Lumbley in the vehicle together at a different location which I did physically view Q Did you indicate that in the report A I am not sure It may have taken place after the fact You can get that information from the Hammond Police Department though Q Was Hammond PD involved in this other than trying to enhance A Hammond Police Department was working several newspaper box burglaries where they we had a rash of them where they would go to the front of a convenience store and steal the newspaper box in an attempt to break it open to get the chance to get funds and that is how I was contacted Q And that is Mr Lumbley is what you sic brought you to Hammond P attention s D A Well the vehicle was seen at a convenience store that was their suspect vehicle was a red Ford pickup so that is what brought it to my attention I advised them we had a red Ford pickup truck stolen And then once we looked at one of the videos we knew who was in the vehicle but that was already after this incident had taken place Q And that was the vehicle Mr Lumbley stole A It was the red Ford pickup truck that was stolen from Gateway Ford At this point the jury was retired and defense counsel moved for a mistrial based on the witness testimony about another offense Following argument the trial court denied the motion for mistrial Louisiana Code of Criminal Procedure article 775 provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by Article 770 or 771 I The defendant contends that a mistrial was warranted pursuant to La Code Crim P art 771 which states in pertinent part 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 2 When the remark or comment is made by a witness or person other than a 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 A mistrial under the provisions of La Code of Crim P art 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness or of the prosecutor make it impossible for the defendant to obtain a fair trial See State v Miles 98 2396 p 4 La App 1 st Cir 6 739 So 901 904 writ denied 992249 La 99 25 2d 00 28 1 753 So 231 2d However a mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial Determination of whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed on appeal without abuse of that discretion State v Berry 95 1610 p 7 La App 1st Cir 11 684 So 439 449 writ denied 97 96 8 2d 0278 La 10 703 So 603 97 2d According to the defendant the testimony of Detective Cieutat implicated the defendant in other crimes and was therefore highly Since the witness was not a court official La Code Crim P art 770 does not apply State v Jackson 396 So 1291 1294 La 1981 2d 5 prejudicial We do not agree Detective Cieutat testimony did not refer s to other crimes committed by the defendant His testimony merely indicated that in viewing a convenience newspaper box burglaries store incidents videotape involving wholly unrelated to the instant burglary he observed Lumbley and the defendant sitting together in the stolen Ford pickup truck from Gateway Detective Cieutat explanation of how he s came to view the defendant and Lumbley together in the same stolen truck was in direct response to defense counsel inquiry of what action Detective s Cieutat took to corroborate Lumbley account that the defendant was the s person who was with him at Gateway As such Detective Cieutat s responses to the questions asked of him were neither irrelevant nor immaterial Moreover defense counsel not the State elicited the testimony from Detective Cieutat about which the defendant now complains Such testimony is not chargeable against the State so as to provide a ground for reversal of a conviction State v Jones 451 So 1181 1184 La App 1 st 2d Cir 1984 Further there is no suggestion or indication that Detective s Cieutat statement about newspaper box burglaries was made in order to prejudice the defendant rather he made the statement by way of explaining his actions in the course of his investigation See Jones 451 So at 1184 2d See also State v Tribbet 415 So 182 184 85 La 1982 State v Henson 2d 351 So 1169 117071 La 1977 2d The defendant also contends the trial court erred in failing to admonish the jury to disregard Detective Cieutat testimony s However defense counsel never requested an admonition by the trial court Louisiana Code of Criminal admonishment Procedure article 771 mandates a request for an As such the trial court failure to instruct the jury to s n disregard the remarks referring to Detective Cieutat investigation of the s defendant absent a request was not in itself reversible error See State v Pooler 96 pp 3839 La App 1 st Cir 5 696 So 22 48 writ 1794 97 9 2d denied 971470 La 11 703 So 1288 97 14 2d We do not find any prejudice to the defendant by Detective Cieutat s testimony Accordingly the trial court did not abuse its discretion in denying the defendant motion for a mistrial s The assignment of error is without merit REVIEW FOR ERROR Under La Code Crim P art 920 we are limited in our review to 2 errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found a sentencing error At sentencing defense counsel informed the trial court that he had outstanding written motions for postverdict judgment of acquittal and new trial as well as a motion in arrest of judgment The trial court denied the motions and immediately imposed sentences on the defendant There is no indication from the record that the defendant waived sentencing delays Pursuant to La Code Crim P art 873 the trial court was required to delay sentencing for twenty four hours after denying the new trial in arrest of judgment and postverdict judgment of acquittal motions However where the defendant has not challenged the sentence imposed the statutory mandate of a twentyfour hour delay is not so imperative as to require a 2 Article 873 requires a 24hour delay in sentencing after denial of a motion for new trial or in arrest of judgment unless the defendant waives the delay The article does not explicitly require a 24hour delay in sentencing after a motion for a post verdict judgment of acquittal has been denied However this court has applied the 24 delay in Article hour 873 to motions for postverdict judgment of acquittal See State v Coates 20001013 p 5 La App 1st Cir 12 774 So 1223 1226 State v Jones 972521 p 2 La 00 22 2d App l st Cir 9 720 So 52 53 98 25 2d 7 resentencing where the defendant cannot show that he suffered prejudice from the violation See State v White 404 So 1201 La 1981 In this 2d case the defendant has not assigned as error the trial court failure to s observe the twentyfour hour delay has not contested the imposed and has not shown he was prejudiced sentences Accordingly this sentencing error is harmless beyond a reasonable doubt and does not require a remand for resentencing See State v Brown 2003 1076 pp 1617 La App 1st Cir 12 868 So 775 786 writ denied 20040269 La 03 31 2d 04 4 6 876 So 76 State v Ducre 604 So 702 709 La App 1 st Cir 2d 2d 1992 CONVICTIONS AND SENTENCES AFFIRMED 8
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