JOAN BERNARD ARMSTRONG, Chief Judge.
On March 20, 2007, the State of Louisiana charged the defendant, Lostin Lee, by bill of information with six counts of violating La. R.S. 14:65.1, purse snatching. On March 28, 2007, the defendant pled not guilty to the charges. On March 29, 2007, the defendant filed the following written motions: 1) motion to suppress evidence; 2) motion to suppress statement; 3) motion to suppress identification; and 4) motion for preliminary hearing. On July 13, 2007, the trial court conducted a hearing on certain of the defendant's motions. At the close of the hearing the trial court denied the following motions: 1) motion to suppress statement as to count five; and 2) motion to suppress identification as to counts two, three, five, and six. Further, the trial court found sufficient probable cause to substantiate the State's charges on counts two, three, five, and six. On July 26, 2007, the trial court heard arguments on the defendant's motion to suppress identification and held a preliminary hearing with respect to count four. At the close of the hearing, the trial court denied the motion and found that probable cause existed.
On March 10, 2009, the State brought its case on counts three through six against the defendant to trial. Prior to trial, the defendant elected to have his case tried by a jury. At trial, the State introduced testimony from ten witnesses and introduced twenty-eight exhibits. The record indicates that the defendant introduced no evidence or testimony. After closing arguments, the trial court found the defendant guilty of purse snatching with respect to counts three and six. The State noted its intent to charge the defendant with being a multiple offender.
On August 3, 2009, the trial court sentenced the defendant to ten years at hard labor with the Department of Corrections as to count three. As to count six, the trial court sentenced the defendant to thirty years at hard labor. Later that same day, the State filed a multiple offender bill relative to count six, to which the defendant pled guilty. The trial court then vacated its sentence with respect to count six and resentenced the defendant to serve thirty years at hard labor with the Department of Corrections. This appeal followed.
The defendant's assignment of error does not bear upon the propriety of the State's charges or the evidence adduced at trial. Thus, the sufficiency of the evidence is not at issue. However, this Court has reviewed the transcript of the two-day trial and provides the following summary of the facts underlining the four counts against the defendant.
The State first elicited testimony from Ms. Barbara McGary Higginbotham. Ms. McGary testified that on August 26, 2006, she was the victim of a purse snatching near her home on City Park Avenue. Specifically, Ms. McGary explained that on August 26, 2006, she was returning to her home from her father's funeral. She was unable to park in front of her house on City Park Avenue so she parked instead on St. Peter Street, behind her home. As she was looking for a parking space, Ms. McGary noticed a man standing in the street near a car parked on City Park Avenue. Ms. McGary also noticed that the man had moved to St. Peter Street by the time she had parked her car. The man walked past her vehicle while she was parking her car. By the time she got to the gate to the back of her property, she noticed that the man had turned around and started to approach her. She sensed that he was about to rob her. Accordingly, once she got through her gate she turned around and tossed her purse to the man. Ms. McGary testified that the man then said, "Get in the house now before I use this gun on you", and she said, "I'm going." The man picked up the purse, and Ms. McGary went to a neighbor's house and called the police.
Ms. McGary subsequently gave a description of the perpetrator to the police. Later, she was presented a photographic lineup by Detective Anthony Mayfield. At trial, Ms. McGary identified the photographic lineup and the photograph she selected from the lineup. Additionally, Ms. McGary identified the defendant at trial as both the man she saw standing in the street while parking her car and the man who took her purse.
The State next elicited testimony from Ms. Leslie Bourlet, who stated that she was the victim of a purse snatching that occurred on September 20, 2006. Specifically, Ms. Bourlet testified that sometime between 6:00 and 6:30 A.M. she was leaving her home on North Lopez Street, off Esplanade, to go to work. She had a book-bag, her purse, and her lunch with her. When she got into her car, Ms. Bourlet put her things on the front passenger seat next to her, rolled down the windows, and sat for a few minutes to let the car warm up. While she was sitting in her car, a man approached her and asked her if she had a lighter. Before she could answer, the man opened her door, grabbed her by the neck, grabbed her purse, and then ran off down the street. Composing herself, Ms. Bourlet sped off a few seconds later. She then called her adult son on her cell phone and had him meet her out in front of her home. Ms. Bourlet insisted that she was able to get a good look at her attacker.
Subsequently, Ms. Bourlet was interviewed by the police. Likewise, Ms. Bourlet gave a description of the perpetrator to the police. Later, she was presented a photographic lineup by the Sergeant John Hunter. At trial, Ms. Bourlet identified the photographic lineup and the photograph she selected from the lineup. Additionally, Ms. Bourlet identified the defendant at trial as the man who took her purse.
The State also elicited testimony from Ms. Rebecca Frank, who testified that she was the victim of a purse snatching that occurred on September 20, 2006, in front of her home on Rampart Street in the Bywater. Ms. Frank testified that at approximately 3:55 P.M. she had arrived at her home after working a shift at a nightclub, "Mimi's In The Marigny." Ms. Frank also explained that she had two bags with her. The bags contained numerous personal items as well as cash from two nights of work at the nightclub. Ms. Frank parked her car in front of her home and was in the process of getting out when a man appeared and said, "Good evening." Before she could respond, the man grabbed the bag that was around her left arm, pulled her to the ground, and then ran off with both her bags. Her shouts woke her sleeping fiance, who came outside. Ms. Franks' fiance then called the police.
Ms. Frank testified that, although early in the morning, the area at the scene was well-lit and she got a good look at the perpetrator's face. Subsequently, Ms. Frank was interviewed by the police. Likewise, Ms. Frank gave a description of the perpetrator to the police. Later, she was presented a photographic lineup by Detective Herman Franklin. At trial, Ms. Frank identified the photographic lineup and the photograph she selected from the lineup. Additionally, Ms. Frank identified the defendant at trial as the man who took her purse.
Ms. Rebecca Duckert was the final victim to testify on behalf of the State. Ms. Duckert testified that her purse was snatched on February 5, 2007, in front of her mother's home at approximately 9:45 P.M. Specifically, Ms. Duckert testified that she was coming home from her classes at Loyola University and was in the process of collecting her things in the car. Her mother's home is situated on a corner lot, and she noticed a man walking on the street when she was approaching the house. Ms. Duckert thought the man's presence was odd because she did not usually see people out walking in her neighborhood at that time of night. By the time she got out of the car, Ms. Duckert noticed that the man had rounded the corner and was now walking towards her. By the time she reached the steps to her mother's house, the man was about to walk by her when he turned and said, "That's right, bitch", and grabbed Ms. Duckert's purse. Ms. Duckert then tried to tug the purse away as she escaped up the steps. However, Ms. Duckert let go of the purse, and the man took it and fled.
Ms. Duckert's mother then came out of the house to see what was going on. Ms. Duckert and her mother then called the police. Further, a neighbor, Mr. McGowen, came over to speak with the ladies. Despite the fact that it was night, Ms. Duckert explained that the area was well-lit and that she was able to get a good look at her perpetrator. Subsequently, Ms. Duckert was interviewed by the police. Likewise, Ms. Duckert gave a description of the perpetrator to the police. Later, she was presented a photographic lineup by the Officer Anthony Mayfield. At trial, Ms. Duckert identified the photographic lineup and the photograph she selected from the lineup. Additionally, Ms. Duckert identified the defendant at trial as the man who took her purse.
The final non-N.O.P.D. fact witness to testify was Ms. Duckert's neighbor, Mr. Byron McGowen. Mr. McGowen explained that he lives across the street from Ms. Duckert. Mr. McGowen testified that in the evening of February 5, 2007, he had just returned to his home from jogging. He received a long distance phone call from a friend and, for reasons not explained in the record, decided to take the call from his pickup truck, which was parked in the street in front of his house. As he was sitting and talking, Mr. McGowen noticed a pickup truck pull up and park in the middle of the street. Mr. McGowen testified that a man got out of the pickup and walked around the front of the pickup towards his vehicle. However, the man was wearing a hooded sweater, did not notice Mr. McGowen, and continued on towards the sidewalk. Nevertheless, Mr. McGowen testified that he got a good look at the man's face. Mr. McGowen next heard Ms. Duckert's screams and saw the man holding a purse and running back towards the pickup truck.
Mr. McGowen had the presence of mind to write down the truck's license plate number. Mr. McGowen gave the plate number first to Ms. Duckert's mother and then to the officers who responded to the Duckerts' initial phone call. Subsequently, Mr. McGowen was presented a photographic lineup by Detective Shawn Ferguson. At trial, Mr. McGowen identified the photographic lineup and the photograph he selected from the lineup. Additionally, Mr. McGowen identified the defendant at trial as the man from the pickup truck.
The State's first N.O.P.D. witness was Officer Stephanie Briscoe. Specifically, Officer Briscoe testified that: 1) she is a senior police dispatcher with the N.O.P.D.; 2) she is an eighteen-year veteran of the N.O.P.D.; 3) currently, she receives 911 and emergency calls for the police; and 4) she is a custodian of records for such calls. Additionally, Officer Briscoe described for the jury the process by which the police receive, record, process, and archive 911 and emergency calls. Further, Officer Briscoe identified incident recall reports and corresponding audio recordings for the following incidents which occurred in New Orleans: 1) an August 26, 2006, incident that occurred at 726 City Park Avenue bearing the incident number H026979-06; 2) a September 20, 2006, incident that occurred at 3:58 A.M. at 3315 Rampart Street bearing the incident number I020133-06; 3) a September 20, 2006, incident that occurred at 6:17 A.M. at 1300 North Lopez Street bearing the incident number I20156-06; and 4) a February 5, 2007, incident that occurred at 4601 Iberville Street bearing incident number B5117-07.
The State also called Detective Anthony Mayfield to testify. Detective Mayfield testified that he is a nineteen-year veteran of the N.O.P.D. and is currently a detective with the Third District's investigative unit. Further, Detective Mayfield explained that he had the occasion to investigate the taking of Ms. McGary's purse. Detective Mayfield explained that on the night of the incident he and his partner: 1) responded to the initial call on the night of August 26, 2006; 2) interviewed Ms. McGary and canvassed the neighborhood for suspects; and 3) conducted an unsuccessful show-up identification with Ms. McGary and a potential perpetrator located shortly after the incident. Subsequently, Detective Mayfield and his partner developed the defendant as a suspect and prepared a photographic lineup containing the defendant's photograph to show to Ms. McGary. At trial, Detective Mayfield explained the process by which he prepared the lineup and presented it to Ms. McGary. Detective Mayfield indicated that Ms. McGary identified the defendant's photograph as bearing the perpetrator's likeness. Detective McGowen identified the photographic lineup at trial.
Detective Mayfield also testified that he also had occasion to investigate the Ms. Duckert's February 5, 2007, purse snatching. Detective McGary explained that on the night of the incident he and his partner: 1) responded to the initial call; and 2) interviewed Ms. Duckert. Additionally, Detective Mayfield received the license plate number, initially taken down by Mr. McGowen, from another responding officer. Detective Mayfield testified that another detective discovered that the pickup truck was registered to a relative of the defendant. Subsequently, Detective Mayfield and his partner developed the defendant as a suspect and prepared photographic lineups containing the defendant's photograph to show to Ms. Duckert and Mr. McGowen. At trial, Detective Mayfield explained the process by which he prepared the lineups and presented them to Ms. Duckert and Mr. McGowen. Detective Mayfield indicated that Ms. Duckert and Mr. McGowen identified the defendant's photograph as bearing the perpetrator's likeness. Detective McGowen identified these photographic lineups at trial.
Detective Mayfield also testified that he spoke with the defendant after his arrest. Detective Mayfield indicated that prior to speaking with the defendant, he advised him of his rights and asked the defendant to sign a rights of arrestee form. Detective Mayfield testified that when interviewed, the defendant stated: "I might have grabbed that lady's purse. I was loaded. I don't remember."
Additionally, the State elicited testimony from the N.O.P.D.'s Sergeant John Hunter. Sergeant Hunter testified that he had occasion to investigate the purse snatching that happened to Ms. Bourlet. Specifically, Sergeant Hunter testified that after receiving an email and police report from an officer in the Eighth District, he developed the defendant as a suspect in the Bourlet purse snatching. Accordingly, Sergeant Hunter prepared a photographic lineup containing the defendant's photograph to show to Ms. Bourlet. At trial, Sergeant Hunter explained the process by which he presented the lineup to Ms. Bourlet. Sergeant Hunter indicated that Ms. Bourlet identified the defendant's photograph as bearing the perpetrator's likeness. Sergeant Hunter then prepared a warrant for the defendant's arrest. Lastly, Sergeant Hunter identified the photographic lineup at trial.
The State also elicited testimony from Detective Herman Franklin. Detective Franklin testified that he was a nineteen-year veteran of the N.O.P.D. and that on September 20, 2006, he was a detective assigned to aid in the investigation of Ms. Frank's purse snatching. Specifically, Detective Franklin testified that on the night of the incident he arrived at the scene and participated in an interview with the victim. Subsequently, Detective Franklin developed the defendant as a suspect and prepared a photographic lineup containing the defendant's photograph to show to Ms. Frank. At trial, Detective Franklin explained the process by which he prepared the lineup and presented it to Ms. Frank. Detective Franklin indicated that Ms. Frank examined the photographic lineup for approximately twelve to thirteen minutes and identified the defendant's photograph as bearing the perpetrator's likeness. Detective McGowen identified both the photographic lineup and the defendant at trial as the person selected by Ms. Frank out of the lineup.
Detective Shawn Ferguson was the final N.O.P.D. witness called by the State. Detective Ferguson testified that he has been employed by the N.O.P.D. for twelve years. Further, Detective Ferguson testified that he had occasion to investigate the February 5, 2007, purse snatching that involved Ms. Duckert. Specifically, Detective Ferguson testified that on the night of the incident he arrived at the scene with Detective Mayfield and participated in interviews with Ms. Duckert and Mr. McGowen. Detective Ferguson noted that Mr. McGowen provided him with a description of the perpetrator's vehicle and the vehicle's license number. Detective Ferguson then located the vehicle's owner, Ms. Vanessa James, interviewed her and discovered that her son had been in possession of the vehicle. The police used the foregoing information to develop the defendant as a suspect. Further, the police asked Ms. James to sign a consent to search form. The detectives examined her vehicle but found no evidence.
After Detective Ferguson testified, the State introduced its exhibits and rested its case. The defendant elected to not put on a case. After closing arguments and instructions, the jury retired to deliberate. As noted, the jury found the defendant guilty of purse snatching with respect to counts three (Ms. McGary) and six (Ms. Duckert).
A review of the record reveals one error patent. Specifically, the record indicates that the defendant filed a motion for new trial on July 7, 2009. A review of the August 3, 2009, sentencing transcript and the July 7, 2009, minute entry indicated that the trial court failed to rule on the motion. Accordingly, on February 18, 2010, this Court remanded this matter back to the trial court to rule on the defendant's motion or provide proof that it had so ruled. On March 2, 2010, this Court received a minute entry from the trial court that indicated that the trial court denied defendant's motion for new trial on February 25, 2010. That ruling will require this court to vacate the sentences and remand the case for resentencing of the defendant. See
In his sole assignment of error, the defendant asserts that the trial court erred when it denied a request for mistrial after the assistant district attorney made improper comments during rebuttal argument. Specifically, defendant cites to the two following instances as providing grounds for a mistrial:
Later, after the jury had left for deliberations, the parties argued the merits of defendant's motion for mistrial. The defendant argued in favor of mistrial accordingly:
The State countered:
The trial court denied defendant's motion and explained its reasons:
La. C.Cr.P. art. 770(3) provides that the trial court "shall" declare a mistrial when the prosecutor "refers directly or indirectly to . . . the failure of the defendant to testify in his own defense." The purpose behind art. 770(3)'s prohibition against such prosecutorial comment is to protect the defendant's Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf.
"Direct" and "indirect" references to the defendant's failure to take the stand are prohibited by article 770(3).
There are indirect references which focus on, or are intended to focus on, a defendant's failure to testify. One such instance is when the defendant is the only witness who can rebut the state's evidence. Such a reference to the testimony as uncontroverted focuses the jury's attention on the defendant's failure to testify and warrants a mistrial.
The defendant asserts that the trial court should have granted the mistrial because the assistant district attorney's reference to "the defendant" constituted a direct reference by way of "unmistakable negative implication" on the defendant's decision not to testify. In other words, the defendant asserts that the jury knew objectively that the defendant did not testify and thus knew that the State's characterizations were factually false. Nevertheless, the defense argues, the State's direct negative implication served to unduly reinforce the fact of defendant's failure to testify upon the minds of the jurors.
The State responds by reurging the assertions made before the trial court. First, the record indicates that during its rebuttal argument the assistant district attorney did not make reference to the failure of the defendant to testify in his own defense. Rather, the assistant district attorney attributed statements made by defense counsel to the defendant. Thus, if anything, the State was putting words into the defendant's proverbial mouth when he did not testify. Second, the two statements do not constitute, as defined by the foregoing jurisprudence, either direct or indirect references to the defendant's failure to testify. Indeed, neither statement pointed to the defendant's choice not to testify or focused the jury's attention on facts at issue that only the defendant could have rebutted. Indeed, taken in context, it is clear that when the assistant district attorney stated "the defendant" he was referring to defense counsel. Clearly, the trial court correctly concluded that the jury could logically deduce the actual meaning behind the State's choice of words and denied the request for mistrial.
For the foregoing reasons, the defendant's convictions are affirmed. The defendant's sentences are vacated and the case is remanded for resentencing in compliance with
