State Of Louisiana VS Lester Bell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1000 STATE OF LOUISIANA O VERSUS LESTER BELL f i DATEOFJUDGMENT 1 FEB 1 5 2013 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT THIRD NiJMBER 27624 PARISH OF ASCENSION STATE OF LOUISIANA HONORABLE RALPH TUREAU JUDGE Donald D Candell Counsel far Plaintiff Appellee Gonzales Louisiana State of Louisiana Ricky L Babin District Attorney Donaldsonville Louisiana Counsel for Plaintiff Appellee Frank Sloan Counsel far Defendant Appellant Mandeville Louisiana State of Louisiana Lester Bell BEFORE KL1f IN PETTIGREW AND McDONALD JJ Dispasition AFFIRMED REMANDED CONVICTIONS AFFIRMED SENTENCES ON COUNTS FIVE AND SIX SENTENCES ON COUNTS ONE THROUGH FOUR VACATED AND JHN KI J Defendant Lester Bell was charged by grand jury indictment with second degree kidnapping on counts one through four as amended and armed robbery on counts five and six violations of La R 14 and La R 14 Defendant S 44 1 S 64 pled not guilty on each count After a trial by jury he was found guilty as charged on counts one through four and six and guilty of the responsive offense of attempted armed robbery on count five See La R 14 As to each conviction S 27 on counts one through four the trial court sentenced the defendant to forty years imprisonment at hard labor to be served concurrently On count five the trial court sentenced defendant to forty years imprisonment at hard labor to be five served consecutive to the sentences imposed on counts one through four Finally on count six the trial court sentenced defendant to ninety years imprisonment nine at hard labar to be served consecutive to the other sentences Defendant now appeals assigning error to the denial of his motion for mistrial and the jury s access to written evidence during deliberations For the following reasons we affirm all the convictions as well as the sentences imposed on counts five and six The sentences imposed on counts one through four are however vacated and remanded STATEMENT OF FACTS On May 2 2009 sometime after 9 p two armed African 00 m American males one later identified as defendant entered Kendall Converse rental home s located at 804 Bayou Road in Donaldsonvi11e At the time Converse friends s Defendant was originally charged with aggravated kidnapping on counts one through four However the State amended the indictment the day before jury selection began and defendant was re and pled not guilty to the amended chazges Defendant was charged and tried arraigned along with Michael Comery In an unpublished order this court remanded Comery appeal due s to the trial court failure to rule on his pro se motion for new trial State v Comery 2012 s 0999 La App Ist Cir 10 unpublished 12 11 z According to police testimony one of the perpetrators was still at large at the time of the trial 2 Brian Carr Tedronne Breston and Nathanial Eseff were helping him move to another residence They were taking a break to watch a basketball game when the assailants knocked on the doar forced entry with their handguns drawn and ordered the men to get down on the floor When Converse stood up both of the gunmen struck him in the head with their weapons forced him back down to the floor and demanded money The gunmen took cash and threatened to kill the victims as they demanded more money While defendant held the other victims at gunpoint the other gunman led Converse out of the home alone Subsequently all of the victims were farced at gunpoint to get into Converse truck The gunmen instructed Converse to drive s and to follow a red or maroon Toyota which was driven by a third perpetrator who was later identified as codefendant Comery Converse followed Comery to s Converse new residence located at 217 Madewood Drive Defendant sat in the front seat with his gun pointed at Converse while the other gunman sat in the back of the vehicle with the other victims When the gunmen entered the home with Converse and his friends Converse attempted to calm his girlfriend and children who were home at the time and immediately activated the silent home alarm Converse then gave the gunmen a bag containing approximately five thousand dollars and his payment stub The perpetratars took the money and fled from the scene At approximately 9 p Sergeant Jeff Griffin of the Ascension Parish 40 m s Sheriff Department responded to a BOLO a be dispatch spotted lookout the on a vehicle that fit the given description near I at LA Highway 73 near Baton 10 Rouge travelling westbound and alerted dispatch Louisiana State Trooper Jeremy Ballard also responded to the BOLO For several miles the police pursued the 3 Converse and Eseff testified that they were familiar with Comery because they had seen him in the area before the incident 3 vehicle at high speed with their sirens and lights activated The vehicle exited at College Drive in Baton Rouge and several individuals including the driver jumped out of the vehicle behind Ruby Tuesday Restaurant and fled on foot s Sergeant Griffin observed items that fell out of the vehicle when one of the passengers exited the vehicle including Converse payment stub that was s subsequently recovered The police pursued the individuals on foot and apprehended defendant and Comery ASSIGNMENT OF ERROR NLTMBER ONE Defendant contends that the State intentionally elicited testimony from Sergeant Teddy Gonzales of the Ascension Parish Sheriff Office regarding s s defendant postarrest and Miranda silence in violation of the Due Process Clause ofthe Fourteenth Amendment Thus he claims that the trial court erred in denying his motion for mistrial on this basis The following colloquy at issue took place during the State direct s examination of Sergeant Gonzales Q Okay So what was your next step as far as your role in this investigation A I then met with Mr Bell Mr Bell was dressed in a blue in color jumpsuit I noticed that he was sweating profusely and he was advised of his rights but he wished not to make any statements at the time Q You said he didn want to make any t A That is correct Defense counsel then objected to the witness reference to defendant s sinvocation of his right to remain silent and asked the trial judge to note his objection for the record After he indicated that the contemporaneous objection would be a part of the record the trial judge asked defense counsel if he wished any further relief pointing out that an admonishment would bring further attention to the jury Defense counsel specifically stated that the note of the objection for the record was 4 sufficient Thereafter the State diverted the line of questioning During a subsequent break the defense moved for a mistrial on that basis which was denied Under the authority of La C art 771 where the prosecutor or a P Cr witness makes a reference to a defendant post silence the trial court is s arrest required upon the request of the defendant or the State to promptly admonish the jury In such cases where the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial upon motion of the defendant the court may grant a mistrial Stale u Kersey 406 So 555 560 La 1981 However a 2d 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 a showing of an abuse of that discretion State x Berry 95 La App lst Cir 11 684 So 439 449 writ 610 96 8 2d denied 97 La 10 703 So 603 0278 97 2d In Doyle v Ohio 426 U 610 619 96 S 2240 2245 49 L 91 S Ct 2d Ed 1976 the United States Supreme Court held that the use for impeachment purposes of the defendant silence at the time of anest and after receiving the s Miranda warnings violates the Due Process Clause of the Fourteenth Amendment Accord Portuondo v Agard 529 U 61 74 120 S 1119 1128 146 S 75 Ct 2d Ed L 47 2000 However not every mention of the defendant postarrest s silence is prohibited by Doy As emphasized by the Louisiana Supreme Court in e State u George 95 La 10 661 So 975 980 Doy condemns 0110 95 16 2d e only the use for impeachment purposes of the defendant spostarrest silence A brief reference to postarrest silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted the proof of guilt is strong and the State made no use of the silence for impeachment See Slate v Smith 336 So 2d 5 867 868 La 1976 accord State v Stelly 93 La App 1st Cir 4 70 1090 94 8 635 So 725 728 writ denied 94 La 9 642 So 1309 2d 29 1211 94 23 2d Further the State is allowed to reference the defendant postarrest silence when s the line of questioning is an attempt to summarize the extent of the police investigation and is not designed to exploit the defendant failure to claim his s innocence after his arrest in an effort to impeach his testimony or attack his defense See George 661 So at 979 2d 80 In this case the reference to the defendant postarrest silence was brief and s the trial as a whole was conducted fairly The initial reference by Sergeant Gonzales was an unsolicited response to the State question regarding the s investigation Further it does not appear that the State pursued the line of questioning for the purpose of calling the jury attention to the defendant s s postarrest silence or having the jury make an inappropriate inference See Stelly 635 So at 728 Moreover defendant did not testify at the trial and thus the 2d testimony in question certainly was not used for impeachment purposes Accordingly defendant postanest silence was not used against him within the s meaning of Doyle One of the victims Breston who had poor vision according to his trial testimony was unable to make a positive identification However defendant who was unmasked at the time of the offenses was positively identified by photographic lineup prior to the trial and again during the trial by the rest ofthe victims Converse Carr and Eseff Despite this brief reference to defendant s postarrest silence we find that he did not suffer such substantial prejudice that he was deprived of any reasonable expectation of a fair trial Accordingly the trial court did not abuse its discretion in denying defendant motion far mistrial s Assignment of error number one is without merit 6 ASSIGNMENT OF ERROR NUMBER TWO Defendant contends that the trial court erred in granting the jury request to s have access to the Quick Call Report included in State e 5 Noting that ibit 29 the call log was directly related to factual issues in the case and that both the defense and the State referred to the call log in their closing arguments defendant asserts the jurors read the call log instead of relying on memory Thus defendant claims that the trial court committed prejudicial error by sending this evidence to the jury during deliberarions In accordance with La C art 793 a juror must rely upon his P Cr A memory in reaching a verdict and shall not be permitted to refer to notes ar to have access to any written evidence While testimony shall not be repeated to the jury upon the request of ajurar and in the discretion of the court the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict The general rule as expressed by Article 793 is that the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue that does not require the examination of the verbal contents of the document State v Perkins 423 So 1103 1109 La 1982 2d 10 s Black Law Dictionary defines testimony as follows Evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition Black Law Dictionary 1613 9th ed 2009 The prohibition against s repeating testimony to the jury is reflected in jurisprudence applicable in this state since the earliest times and was originally codified as Article 395 of the Louisiana Code of Criminal Procedure of 1928 The policy choice represented by Article 793 is to require jurors to rely on their own memory as to verbal testimony without notes and without reference to written evidence such as to depositions or transcribed testimony The general reason for the prohibition is a fear that the 7 jurars might give undue weight to the limited portion of the verbal testimony brought into the room with them However such prohibition is contrary to the growing trend to permit discretion in the trial court in the absence of a statutory prohibition to accede to jury requests to see e and writings except ibits depositions State v Freetime 303 So 487 488 La 1974 2d 89 Moreover a violation of Article 793 does not mandate an automatic reversal of a defendant conviction Rather such a violation constitutes trial error that is s subject to a harmless error analysis See State v Zeigler 40 La App 2d Cir 673 06 25 1920 So 949 956 writ denied 2006 La 2976 So 708 2d 1263 08 l 2d State u Johnson 97 La App 4th Cir 1726 So 1126 1134 writ 1519 99 27 2d denied 99 La 8 747 So 56 0646 99 25 2d Herein the defense attorney noted that two different reports were admitted in S a quick call report from Baton Rouge and an Ascension Parish incident 29 report In initially objecting defense counsel noted that the reports were full of codes and ambiguous references The trial judge concluded that based on the wording of the jury request it could be fulfilled by a review of the quick call s report The trial judge specifically stated Yes I understand Since they specifically said quick call report we send them the quick call report If they ll want the report they can request the other report Defense counsel then stated Okay Before sending the exhibit to the jury the trial court stated Okay Since re they requesting Time got call from alarm company and it on the Ascension s incident report and it part of the same exhibit State E Twenty s s ibit nine does everybody agree that that information is on this report Defense counsel agreed and the trial court allowed the jury to review the exhibit As contended by 8 the State on appeal the defense counsel arguably abandoned his initial objection and acquiesced in the jury review of 5 s 29 Further a call log which in this case apparently contained the time the police were contacted by the alarm company monitoring Converse residence on s Madewood Drive is neither written evidence nor testimony under the plain meaning of that word or the language of Article 793 See State v Brooks 2001 0785 La 1 838 So 725 727 per curiam permitting the jury to 03 14 2d 28 view videotapes of the drug transactions during deliberations was not testimony in violation of the prohibition against repeating testimony to the jury under Article 793 but rather formed part of the res gestae of the offense see also State v Pooler 96 La App lst Cir 5 696 So 22 52 writ denied 97 1794 97 9 2d 53 1470 La 11 703 So 1288 documentary evidence in form of a 97 14 2d photograph of DNA test results and DNA results themselves in the form of numbers and letters was evidence requiring physical examination to enable the jury in a murder prosecution to arrive at a verdict and thus was properly given to jury during its deliberations and State u Lewis 611 So 186 188 La App Sth Cir 2d 1992 fingerprints and a bill of infortnation containing an item number matching the number on the arrest register containing fingerprints were properly viewed by the jury Subject to the eaplicit restrictions imposed by Article 793 and by the jurisprudential rule precluding the use of a defendant confession in any form in s the course ofjury deliberations a trial judge has sound discretion in permitting the s jury review of properly evidentiary exhibits during its deliberations admitted Brooks 838 So at 728 2d Finally as previously noted three of the victims positively identified defendant by photographic lineup prior to the trial and again during the trial Considering these circumstances the convictions surely were not The parties may agree to waive the statutory prohibitions contained in Article 793 However such an agreement must be in clear express language and must be reflected in the record See State x Adams 550 So 595 599 La 1989 2d 9 attributable to any trial error that may have occurred as the result of a violation of Article 793 See Sullivan v Louisiana 508 iJ 275 279 113 S 2078 2081 S Ct 124 L 182 2d Ed 1993 The alleged error if any was harmless beyond a reasonable doubt See La C art 921 Based on the foregoing conclusions P Cr we find no merit in the second assignment of error SENTENCING ERROR We have conducted our routine review of the record for errors discoverable by a mere inspection of the pleadings and proceedings pursuant to La C art P Cr 2 920 In this case the sentencing minutes and transcript reflect that the trial court did not impose restrictions on defendant sparole eligibility as required on all counts by La R 14 and La R 14 Under the self S 44 C 1 S 64 B activating provisions of La R 15 if the statutory period of parole ineligibility is S 301 A 1 specifically mandated and does not involve any discretion there is no need to remand the matter for resentencing State x Williams 2000 La 11 1725 O1 28 800 So 790 799 Accordingly the sentences imposed on counts five and six 2d will automatically be served without the benefit of parole in their entirety However under the sentencing provisions for second degree kidnapping the trial judge may order all or a portion but at least two years of the sentence to be served without benefit of parole Under State u Price 2005 La App 1 st Cir 2514 06 28 12 952 So 112 123 en banc writ denied 2007 La 2 2d 25 0130 08 22 976 So 1277 while an illegally lenient sentence is presumably not inherently 2d prejudicial to the defendant this court nevertheless has the option to vacate the sentence and remand for resentencing Because a determination of the maximum number of years to be served without parole eligibility involves sentencing discretion correcting the errar by this court is not a viable option under Price Thus we remand the matter to the trial court for resentencing Accordingly the 10 sentences imposed on counts one through four are hereby vacated and the matter is remanded to the trial court for resentencing on counts one through four DECREE For these reasons we affirm all of the convictions and the sentences imposed for counts five and six The sentences imposed against defendant Lester Bell on counts one through four are vacated and the matter remanded for further proceedings consistent with this opinion CONVICTIONS AFFIRMED SENTENCES ON COUNTS FIVE AND SIX AFFIRMED SENTENCES ON VACATED AND REMANDED 11 COUNTS ONE THROUGH FOUR
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