State Of Louisiana VS Eric Antoinne Cates
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1iOT DESIGI F PLJBLIC ATED R lTIO i3 I I r1 fJ ISI 7L C r f TIT 2t FI IIZ NO 2Q12 KA 1824 STATE QF LOL ISIANA VERSUS EI2IC r 1 OINNF 1 TV7 C E5 d dex iRex Judgr U d2 3 n pfro t l r P Y yti Judicial D Court rlct In and fox the I East Baton Rouge arash c f tBtC Og L OU1S1811a Tr13 COUYk VO 1 20 09 Honorable DQn Johnsora 3ud Presiding e Hillar C District Moore ITI Attorney arneys r f ttf Plaintz elYee p Stat of I ia cauiai Dale R Lee Assistant Distriat Ati y c Baton Rc L uge Frederick Kroenke Baton orrey for D lant ppe f t endar ce Er Antoxrv atas Rouge BEFORE L WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J HIGGINBOTHAM J The defendant Eric Antoinne Cates rvas chargec by bi11 of information with one count of illegal possession of stolen firearms a violation of La R 14 S 69 1 count l one count of illegal carryi of a w while iri the possession of a ion ea controlled dange substazice a lati c I R 1 c 2 and one rQas n f a S F urt 95E count of possession f a or carryacxg aweapon by a person ream c ceal vr convicted of certain felonies a violation of La R 14 count 3 He pled S 95 1 not guilty and following a jury tria9 was found gu as charged The state filed a lty multiple offender bill of infornaaYion Failowi a the defendant w ag iearing s adjudicated as a secand habitual offe on count 3 and a third felcny der felony habitual offender on count 2 For each cc he was sentenced to fifteen years at unt hard labor to be served without the benefit of probation parole ar suspension of sentence The district court instructed that his sentences were to run concurrently with each other and any ather t that he was serving On the same day the me defendant filed a motion for new trl wrbch tivas denied He later filed a motion al to reconsider sentence which vva alsa denied T defendant now appeals he arguing that the district coui terreci zn den his motion for r For the ing listrial following reass we affarm tk dc3zndanY c laabitual offender ns e s nvictians adjudications and sentences FACTS On October 8 2008 around 3 a Baton Rouge City Police Corporal Q0 m Thomas Banks and Corporal Jarod Averette were patrolling Interstate 10 near the College Drive exit when they came upon a vehicle driven by the defendant The i Couut 1 was dismissed prior to triaL 2 The defendanYs habitual offender predicate offenses for count 2 w his May 14 2003 re conviction under Criminal District Court Yarish of Orleans Docket 436 for possession of 731E cocaine and his July 8 2002 conviction under Criminal District Coart Parish of Orlaans Docket 909J 42 for possessi of r second and possessien of cocaine The predicate n iarijuana offense offense for count 3 was set forth as zhe defendant July 8 2002 conviction under Criminal s District Court Parish of Orle Docket 428 for possession of marzjuana second ns 909J offense dpossession aref cowaine 2 defendant was driving the vehicle approximately fifteen miles over the speed limit and drove across three lanes of traffic without signaling Averette activated the police car lights and the pulled his vehicle over to the shoulder Banks defendant ordered the defendant out of his vehicle and met him at the front of the police car Banks smelled the odor of marijuana on the defendaait breath and saw a clear s plastic bag containixig ma on the front driver seat rijuana s After reading the defendant his Miranda rights Banks took the defendant into custody Banks then walked back to the defendant svehicle to retrieve the bag of marijuana When he reached down to get the bag he saw a gun lying under the front driver seat He s also saw a large amount of cash bundled up with rubber bands He collected the bag of marijuana the gun and the money The defendant acknowledged ownership of all of the items recovered MOTION FOR MISTRIAL In his sole assignmenti of error the defendant argues that the district court erred in denying his motion far mjstrial Sthe defendant contends that ecifically evidence that had previousiy been ruled inadmissible pursuant to a motion in limine was presented to the jury and prejudiced it into believing he was a major drug dealer During the preIiminary examination hearing Corporal Banks testified that in addition to the marijuana and gun he found in the defendant car he also found s five grams of uncollectible marijuana in the form of ashes and roaches in the ashtray and 5 bundled up with rubber bands underneath the front driver 00 02Q s seat The defendant filed ain limine to prohibit any testimony at trial with motion regard to the money found The district court granted the motion and stated that it did not think the money was relevant At trial in response to the prosecutor question regarding what items he s observed Banks collect Averette stated I saw a small bag of marijuana I saw a 3 Ruger 45 caliber semi handgun and I saw a large bundle of cash auYorriaYic Defense counsel moved for a mistrial on the basis that evidence that was previously ruled inadmissible had been disclosed to the jury The prosecutar responded by saying that she instructed the officers not to discuss the money found The district cc denied defend motiun and issued an admonishment urt s nt to the jury Under Louisiana Code of Criminal Procedure article 770 a mistrial shall 2 be ordered when a remark or comment made within the hearing of the jury by the judge district attorney or a court official during trial or argument refers direcily or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible As a general rule Article 770 does not apply to testimony by a state wimess since a witness is not considered a court official See State v Boudreaux 503 So 27 31 La App lst Cir 2d 1986 Article 770 is inapplicable in this case because the witness in question was not among the listed group of persons under the article whose remarks mandate a mistriaL The controlling provision is Louisiana Code of Criminal Procedure article 771 which provides in pertinent part In the following cases upon the request of the defendant or the state the court shall promgtly 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 ar person other than the judge district attorney or a court official regardless of whether the remark or commer is within the scope ofArticle 770 t In such cases on motion of the defendant the court may grant a mistrial if it is satisfied that an admonirion is not sufficient to assure the defendant a fair triaL 4 Because Averette response falls rvithin the scope of Article 771 the s granting of a mistrial was in the broad discretion of the district court See State v Johnson 2006 La App lst Cir 12 951 So 294 300 Louisiana 1235 6 28 2d Code of Criminal Procedure article 77 prc n part that u motion of a vides pon defendant a mistrial skall be ordered and in a jury case th jury dismissed vhen e prejudicial conduct ir or outside the courtroom mal it impossible for the es defendant to obtain a fair trial or when authorized by Article 770 or 771 As a general matter mistrial is a drastic remedy that should only be declared upon a clear showing of prejudice by the defendant a mere possibility of prejudice is not sufficient In addition a district court judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial State v Ducre 2001 La 9 827 So 1120 1120 per cur A reviewing 2778 02 13 2d am court should not reverse a defendant conviction and sentence unless the error has s affected the substantial rights of the accused See La Code Crim P art 921 Despite the granting of the defendanYs motion in limine the witness made a statement indicating that money was found in the defendant svehicle However there is no evidence to suggest that the state prompted the witness to discuss the money Banks the officer who actually colZected the money from the defendant s vehicle made no reference to it during his testimony Although the prosecutor asked Averette to testify as to what items he observed Banks collect she had instructed him before trial not to discuss the money Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for mandatory revercal of a conviction State ve Thompson 597 So 43 46 La App 1 st Cir 2d writ denied 60Q So 661 La 1992 2d While Averette reference to the money was technically a violation of the s motion in limine it was not a direct reference to other crimes evidance Ambiguous or obscure references to other crimes made without explanation or 5 elaboration do not prejudic the dr State v F 20i0 La App fendant iday 2309 lst Cir 6117i1 73 So 913 93 zte 2011 I412Q 85 3d 56 i a 12 3d So 1258 Because the monty h atself is a evid of other crianes and no t uce testimony abouY th other marijuana found ln the vehicle was presented we disagree with the defendant that tne urv w believe he vas a drug uid major dealer based on Averette testimon Mc tiie district court admonished s reover the jury that it was to disregard the question and response that it just heard regarding the fimding of the cas This admonishment was suf to afford th a cient defendant a fair trial and there is nc showing of a clear prejudice to the defandarat Therefare a mistrial was not mandat under icles 70 or 771 and we find no d abuse of discretion in the district court denial of the motion for mistrial s This assignment of enor is without merit REVIEW OR ERROR Initially we note tour revieu far enror is pursuant to Louisiana Code of at Criminal Procedure article 920 whieh proeides that the only matters to be considered on app are errors designated in the assignments of error and error al that is discoverable k a mere insp vf the pleadings and proceedings and ctaon without inspectzon f the ev L Code Ca P rt 920 e a der a rra 2 The disU art di rsot uaiTM wir after denying the motion f9u nty ours for new trial before sentence See a ode Crim P art 873 However ianposin the issue was neither assigned ac o or was the sea challenged nor does tenc tha defendant cite any prejudice resul2ing from the caurk ailure to delay s sentencing Thus any erro wlhicla occurred is not reversibde See State v Augustine 555 So 1331 1334 La 1990 2d 35 CONVICTIONS HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMEA 6
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