Opinion
NUMBER 2016 KA 1348
05-02-2017
STATE OF LOUISIANA v. MARCEL DEWAYNE THOMPSON
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, LA Counsel for Appellee State of Louisiana Jane L. Beebe Louisiana Appellate Project New Orleans, LA Counsel for Defendant/Appellant Marcel Dewayne Thompson
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Suit Number 558732 Honorable Allison H. Penzato, Presiding Warren L. Montgomery
District Attorney Matthew Caplan
Assistant District Attorney
Covington, LA Counsel for Appellee
State of Louisiana Jane L. Beebe
Louisiana Appellate Project
New Orleans, LA Counsel for Defendant/Appellant
Marcel Dewayne Thompson BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
The defendant, Marcel Dewayne Thompson, was charged by bill of information on count one with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A)(1), and on count two with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, and pled not guilty. The trial court denied the defendant's motion to suppress statements. After a trial by jury, the defendant was found guilty of the responsive offense of possession of cocaine on count one, a violation of La. R.S. 40:967(C), and guilty as charged on count two. The trial court denied the defendant's motion for new trial. The State filed a habitual offender bill of information to enhance the sentence on count two, the defendant stipulated to his habitual offender status, and the defendant was adjudicated a second-felony offender on count two. The trial court imposed a sentence of five years imprisonment at hard labor on count one and an enhanced sentence of forty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two. The defendant now appeals, assigning error in a counseled brief to the denial of a motion for mistrial, the admission of other crimes evidence, and the sufficiency of the evidence. In a pro se brief, the defendant raises two additional assignments of error challenging the denial of the motion to suppress his confession. For the following reasons, we affirm the convictions, habitual offender adjudication, and sentences.
The habitual offender bill of information is based on a 2002 predicate conviction of distribution of cocaine.
STATEMENT OF FACTS
In November of 2014, with the assistance of a confidential informant, Deputy Christopher Comeaux, an expert in street-level narcotics with the St. Tammany Parish Sheriff's Office (STPSO), led an investigation into the defendant's possible involvement in the street-level narcotic drug trade. On November 4, 2014, Deputy Comeaux, who at the time was assigned to the DEA task force, and officers of the Slidell Police Department (SPD) participated in the monitoring of a narcotics sale between the defendant and the confidential informant.
The transaction consisted of the informant purchasing approximately two hundred dollars' worth of cocaine from the defendant in an area referred to as Brownsvillage Road in Slidell. The officers met the informant at a prearranged location, the informant was searched, fitted with a "Kel" audio monitoring device (body wire), and given documented funds. The informant contacted the defendant and directed him to the area of Brownsvillage Road near Dixie Road, and the officers followed the informant to the location where the transaction would take place. The informant made contact with the occupant of a small red sedan as the informant turned onto Dixie Road and was then instructed to proceed to Edwards Street. Due to the layout of the terrain (no shoulder of the road or driveway), the police were unable to establish visual surveillance without being detected; thus, they set up surveillance in the area and monitored the situation through the audio monitoring device worn by the informant. Once the officers discerned that the transaction was complete, they trailed the two vehicles (the one being operated by the informant and the red sedan) from Edwards Street and down Brownsvillage Road. Other officers intercepted the informant while Deputy Comeaux remained with the red sedan, which turned into a gas station on the corner of Brownsvillage Road and U.S. Highway 11.
Deputy Comeaux, dressed in plain clothes and driving an unmarked vehicle, positioned his vehicle at one of the gas pumps facing the business, which provided him with an unobstructed view of the red sedan as he observed an individual, identified by Detective Comeaux as the defendant, exit the passenger side and enter the store. Deputy Comeaux photographed the defendant and the sedan as the defendant was outside of the vehicle on the passenger side. As officers of the SPD collected the cocaine from the controlled buy, Deputy Comeaux terminated the surveillance shortly after observing the defendant.
On November 13, 2014, the STPSO conducted another controlled buy from the defendant using the same confidential informant and the same methodology. The informant and the police met at a predetermined location, a surveillance team proceeded to the Tumblebrook Street area (where the defendant was observed on a previous date), the informant called the defendant, and the police were directed to 313 Tumblebrook Street in Slidell. The police listened as the transaction was completed inside of the residence and subsequently established visual as well as audio surveillance as they followed the informant and the defendant off-site to a nearby gas station. After the defendant and the informant departed, Detective Comeaux followed the informant to the prearranged location, conducted a search of the vehicle and the informant, and obtained the purchased narcotics. The suspected cocaine was field tested, submitted to the lab for further testing, and tested positive for cocaine. Using a database that keeps records of incidents in St. Tammany Parish, referred to as a Computer Automated Dispatch (CAD) search, the police determined that the residence located at 36271 Edwards Street belonged to Barbara Thompson, the defendant's mother. They further determined that the residence at 313 Tumblebrook Street was the defendant's main residence.
On November 20, 2014, the police obtained a search warrant for both residences, and the warrants were executed (with SWAT team assistance at the Tumblebrook Street residence) during the early morning hours on the following day. The defendant was not home at the time of the search of the Tumblebrook Street residence; however, present was his girlfriend Sanita Thomas, along with their small children. During the search of the defendant's residence, the police recovered a .45 caliber semi-automatic handgun (wrapped in black t-shirts) from the top shelf of the master bedroom closet, which was used for male clothing and was believed to be the defendant's personal closet. Further, a plastic baggy of suspected marijuana was recovered from a chest of drawers in the master bedroom, along with a partially burnt, hand-rolled cigarette suspected to contain marijuana, and rolling papers were recovered from the nightstand. Further located in the master bedroom was a jar of creatine, which, according to Deputy Comeaux, is often used by cocaine dealers as a filler to stretch the amount of cocaine in order to increase profits.
Sanita Thomas claimed ownership of the hand-rolled cigarette and rolling papers in a written statement.
The search of the residence located at 36271 Edwards Street, led by Lieutenant Danny Fonte of the STPSO, began after Deputy Comeaux gave word that the Tumblebrook residence was secure. Corporal Joseph Fourtunia, Deputy Jason Walden, and Corporal Justin Williams of the STPSO assisted in the execution of the search warrant. The officers noted that a bag of suspected marijuana was located inside of a blanket on the top of a bed, a partially burnt, hand-rolled cigarette suspected to contain marijuana was located in an ashtray next to the bed, and rolling papers were recovered. The officers further recovered from a kitchen utensil drawer, numerous baggies of a white powdered substance, a razor blade from the kitchen counter, transparent plastic bags (fold top and Ziploc), and a digital scale. A money counter was located on the master bedroom floor.
The substance was later submitted to the St. Tammany Parish Sheriff's Office Crime Laboratory for scientific analysis and determined to contain (combined) 20.9 grams of cocaine. According to Deputy Comeaux, this amount was significantly more than the threshold amount associated with a seller as opposed to an amount associated with personal use. The scale contained cocaine residue.
Further, a bag of suspected narcotics was recovered from the defendant's mother's purse.
After the search at the Tumblebrook residence was completed, Deputy Comeaux proceeded to the Edwards Street residence. Deputy Comeaux took custody of the recovered evidence and interviewed the three occupants present at the time, the defendant's mother (Barbara Thompson), the defendant's adult daughter (Marcia Thompson), and the defendant's daughter's boyfriend (Keith Douglas). While the defendant was not initially present at the Edwards Street residence, he arrived while the police were still at the scene. Shortly after his arrival, the defendant was escorted to the master bedroom, agreed to give a recorded interview wherein he was advised of his Miranda rights (which he indicated that he understood), and admitted to owning the gun and to selling drugs to provide for his children. After his recorded confession, the defendant was placed under arrest and transported to the Covington Law Enforcement Complex where he was re-advised of his rights, executed a waiver of rights form, and made additional statements.
The pistol and money counter were submitted to the St. Tammany Parish Sheriff's Office Crime Laboratory for testing and latent print examination, and the results were inconclusive due to a lack of quality and quantity.
According to trial testimony, the defendant's mother requested medical attention after the arrival of the police.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
SUFFICIENCY OF THE EVIDENCE
In counseled assignment of error number three, the defendant argues that the State failed to prove possession beyond a reasonable doubt for both counts because there was no proof that he resided at either house or that he was in constructive possession of the gun or the cocaine. The defendant contends that none of the evidence collected could be physically linked to him. The defendant further contends that he only admitted to possessing the gun and cocaine while intoxicated and under coercion after the police threatened to arrest his mother and daughter. In concluding that the evidence was insufficient to prove the requisite element of possession, the defendant reiterates that the confidential informant purchases were not recorded and that there was no DNA or fingerprint evidence.
When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused is entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Hearold, 603 So. 2d 731, 734 (La. 1992). Accordingly, we proceed first to determine whether the entirety of the evidence was sufficient to support the defendant's convictions.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia. That standard of appellate review, adopted by the Legislature in enacting La. C.Cr.P. art. 821(B), is whether the evidence, when 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. State v. Ordodi, 06-0207, p. 10 (La. 11/29/06), 946 So. 2d 654, 660; State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So. 2d 1, 18. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 02-1492, p. 5 (La. App. 1st Cir. 2/14/03), 845 So. 2d 416, 420.
It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II, which includes cocaine. See La. R.S. 40:964, Schedule II(A)(4); La. R.S. 40:967(C). The defendant does not dispute the amount of cocaine seized or that the substance seized was actually cocaine. Instead, he argues that there is a lack of evidence demonstrating either his actual or constructive possession of cocaine. The State is not required to show actual possession of the narcotics by a defendant in order to establish the element of possession on count one. Constructive possession is sufficient. It is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Toups, 01-1875, p. 4 (La. 10/15/02), 833 So. 2d 910, 913. Nonetheless, a person found in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control. See State v. Trahan, 425 So.2d 1222, 1226 (La. 1983). Furthermore, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. State v. Gordon, 93-1922, p. 9 (La. App. 1st Cir. 1994), 646 So.2d 995, 1002.
A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) his knowledge that illegal drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) his physical proximity to the drugs; and (6) any evidence that the particular area was frequented by drug users. See Gordon, 93-1922 at p. 9, 646 So. 2d at 1002. Guilty knowledge, an essential component of constructive possession of contraband, may be inferred from the circumstances of the case. State v. Pigford, 05-0477, p. 7 (La. 2/22/06), 922 So. 2d 517, 521 (per curiam).
Pursuant to La. R.S. 14:95.1(A), it is unlawful for any person who has been convicted of certain enumerated felonies to possess a firearm. To convict a defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt the possession of a firearm, a previous conviction of an enumerated felony, that ten years have not elapsed since completion of the sentence, and general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So. 2d 269, 271 (La. 1983). The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the firearm or through the constructive possession of the firearm. Thus, constructive possession satisfies the possessory element of the offense. Constructive possession occurs when the firearm is subject to the offender's dominion and control. Dominion and control over a weapon are sufficient to constitute constructive possession even if the control is only temporary in nature and even if the control is shared with another person. See State v. Johnson, 03-1228, p. 5 (La. 04/14/04), 870 So. 2d 995, 998-999; see also State v. Plain, 99-1112, p. 3 (La. App. 1st Cir. 2/18/00), 752 So. 2d 337, 340-41.
General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).
In this case, the defendant does not contest his status as being convicted of an enumerated felony under La. R.S. 14:95.1(A) at the time of the instant case. Thus, the only issue is the sufficiency of the evidence of the defendant's possession of the firearm. Mere presence in an area where a firearm is found, or mere association with an individual found to be in possession of a firearm, does not necessarily establish possession. Whether the proof is sufficient to establish possession under La. R.S. 14:95.1 turns on the facts of each case. Guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Johnson, 03-1228 at p. 5, 870 So.2d at 998.
As alleged in the bill of information for the instant case, the State presented evidence of the defendant's prior conviction of possession of a controlled dangerous substance, hydrocodone, committed in 2008.
During the search of the Tumblebrook Street residence, in addition to the handgun, marijuana, and creatine recovered from the master bedroom, the police recovered and photographed documentation addressed to the defendant by name or nickname (the defendant was also referred to as "Bird") located in the master bedroom, along with many articles of men's clothing. Further, mail addressed to the defendant at 60385 Bryan Road (one piece of mail was dated in October of 2014) was located at both residences, and an inhalation suspension medication purportedly prescribed to the defendant in 2010 was located in the Edwards Street residence.
One of the recovered pieces of mail addressed to the defendant at the Edwards Street residence was dated November 13, 2014, eight days prior to the execution of the search warrants (also the date of the second controlled buy). --------
The occupants present at the time of the Edwards Street search denied knowledge of the presence of the cocaine and denied ownership of the razor blade, the Ziploc bags, and other plastic bags found near the cocaine, as well as the digital scale. When Deputy Comeaux inquired as to whether the defendant lived at the Edwards Street residence, the defendant's mother indicated that he stayed there and had friends over from time to time but often moved around. She further noted that she did not get involved in the defendant's personal affairs.
The defendant's girlfriend, Thomas, provided the same response regarding the defendant's comings and goings to and from the Tumblebrook residence and denied being involved in his affairs. However, Thomas knew about the gun in the residence and stated that it belonged to the defendant. Deputy Comeaux testified that based on his experience, it was common for street-level dealers to move around frequently to hinder law enforcement attempts to establish probable cause for an arrest.
During the defendant's recorded interview, the police informed him that they had recovered a gun and drugs and that his girlfriend indicated that the gun belonged to the defendant. The defendant stated that he had been at the casino all night and that he was "pissed" because he did not win any money. The defendant was fully advised of his Miranda rights and indicated that he understood his rights. The police also informed the defendant of the evidence of controlled buys including the defendant as the seller. The defendant admitted to the ownership of the gun. The defendant further stated that the other occupants of the Edwards residence did not know about the presence of the drugs. He further stated that he had thirteen children to provide for, and that he was not selling drugs in order to buy a nice car, jewelry, or other possessions, adding that he only wanted to take care of his children. The defendant also complained about not being able to find legitimate employment to pay his rent and take care of his family. The defendant further stated that he loved his mother and daughter and did not want them to take the blame for offenses that they did not commit.
Deputy Comeaux noted in his police report that the defendant's guard may have been down due to possible slight intoxication, consistent with the history of alcohol abuse noted by the police on the threat assessment form completed prior to the execution of the search warrants. However, he further noted in the report that the defendant did not have an odor of an alcoholic beverage, his speech was not slurred, and he was able to walk on his own in a normal manner. After the recorded interview, Deputy Comeaux overheard the defendant as he initiated further communication with the police, inquiring as to the whereabouts of narcotics agents with whom he seemingly was familiar. As the conversation progressed, the defendant stated that he was a small-time dealer who does not sell cocaine (apparently referencing powder cocaine) but instead sells crack cocaine. Regarding crack cocaine, the defendant further stated that he would use "coke" and "cut it up," a believed reference to stretching it with some other substance to increase profits.
The defendant did not testify at the trial. The defendant's cousin, Erica Leblanc, his uncle, Jerry Thompson, and his uncle, Charles Thompson, testified that the defendant's mother lived at the Edwards Street residence. The defendant's uncles further indicated that the defendant lived on Dixie Street, noting that they would often take the defendant to work and bring him back home. They further indicated that the defendant was an alcohol abuser, noting that their family had a history of alcohol abuse.
According to the defendant's mother, the medication in evidence located at the Edwards Street residence was prescribed to the defendant's son (her grandson), Marcel Thompson, Jr., as opposed to the defendant. Ms. Thompson testified that the police hit her in the chest with the front door in gaining entry at the time of the search, further noting that her blood pressure was high at the time, and that the police would not initially allow her to take medication though the paramedics were eventually called. Ms. Thompson further testified regarding other individuals that frequented her home. She stated that she did not know where the gun and cocaine in evidence came from. She further indicated that the defendant denied ownership or knowledge of the gun when he arrived, and that he was intoxicated at the time. She confirmed that she had a felony conviction for a 2010 offense of obstruction of justice.
Herein, the defendant presented the hypothesis of innocence that he was not connected to the residences where the drugs and firearm were located or in constructive possession of those items. In finding the defendant guilty of possession of cocaine and of being a convicted felon in possession of a firearm, the jury rejected the defense's claim. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So. 2d 31, 38 (La. App. 1st Cir. 1984). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. Absent a showing that the defendant was not granted the fundamental due process of law, it is not appropriate for this Court to impinge on the fact finder's discretion and reject that credibility determination. See Johnson, 03-1228 at p. 7, 870 So.2d at 1000 (finding the evidence sufficient to support the defendant's conviction of possession of a firearm by a convicted felon although his wife testified that the gun belonged to her).
In this case, there was sufficient evidence to support the jury's verdict of guilty of possession of cocaine, and for the jury to find the defendant guilty of being a convicted felon in possession of a firearm. Testimony at trial showed that a confidential informant had purchased cocaine from the defendant at the Edwards Street residence where the cocaine at issue was recovered. Further, the evidence showed that the defendant had access to the area where the drugs were found and had established residency at both locations. We note that the Louisiana Supreme Court has found possession to exist despite the prosecution's failure to present evidence that the defendant was holding the gun or that his fingerprints were on it. See Johnson, 03-1228 at p. 7, 870 So. 2d at 1000. In this case, the defendant confessed in his recorded interview that the drugs and gun belonged to him and that the other occupants of the household were not aware of their presence. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 14-2295, p. 8 (La. 1/27/16), ___ So. 3d ___, ___, 2016 WL 314814 (per curiam). In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 06-0207 at p. 14, 946 So. 2d at 662. After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of possession of cocaine and possession of a firearm by a convicted felon. This assignment of error is without merit.
MOTION FOR MISTRIAL
In counseled assignment of error number one, the defendant contends that the trial court erred in denying his motion for mistrial. The defendant specifically argues that the State made improper, unfounded comments during its opening argument when it made reference to the defendant selling drugs to people's children. Noting that biologically every human being is someone's child, the defendant contends that the State was referencing minors, as the comment was made within the context of the defendant not only failing to take care of his kids but further poisoning other people's children. The defendant argues that there was no testimony to support the prosecutor's insinuation that he sells drugs to children. The defendant contends that he worked at several restaurants and was never seen dealing drugs. The defendant contends that while a confidential informant claimed to have bought drugs from him, audio and video recording of both buys failed. The defendant argues that the comment was inflammatory and that once it was presented to the jury, it was unlikely that he could obtain a fair trial. The defendant argues that the trial court should have stemmed the damage by granting the mistrial or the subsequent motion for new trial.
Opening and closing arguments in criminal cases shall be limited to the evidence admitted, the lack of evidence, conclusions of fact that may be drawn therefrom, and the law applicable to the case. Appeals to prejudice are specifically prohibited. La. C.Cr.P. art. 774. The trial court may grant a mistrial for certain inappropriate remarks that come within La. C.Cr.P. art. 770, which provides in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * *
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;Otherwise, an admonition to the jury may suffice, as provided in La. C.Cr.P. art. 771:
(3) The failure of the defendant to testify in his own defense...
* * *
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
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.
Mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive him of a fair trial. State v. Booker, 02- 1269, pp. 17-18 (La. App. 1st Cir. 2/14/03), 839 So. 2d 455, 467, writ denied, 03- 1145 (La. 10/31/03), 857 So. 2d 476. A trial court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518, p. 12 (La. 1/17/01), 776 So. 2d 443, 454. Before a verdict will be overturned on the basis of improper argument, the court must be thoroughly convinced that the comment influenced the jury and contributed to the verdict. In determining whether improper argument has contributed to the verdict, a reviewing court should give credit to the good sense and fairmindedness of the jurors who have heard the evidence. State v. Bell, 477 So. 2d 759, 768 (La. App. 1st Cir. 1985), writ denied, 481 So. 2d 629 (La. 1986).
During opening statements, the State made the following remarks, in pertinent part:
You are going to hear evidence, and you are going to come to the conclusion that the defendant's contributions to this community -- unfortunately, with so much potential and so much life -- has not been to be a positive role model for his children, not be a positive role model to this community. But instead of taking care of his kids, you are going to hear evidence that he deals the poison to other people's children.At this point, the defense attorney objected and requested a bench conference wherein he argued that the State made a prejudicial reference to dealing poison or drugs to kids for which there would be no evidentiary support. The trial court sustained the objection and admonished the jury to disregard the comment. While the trial court noted that the objection was sustained in an abundance of caution, the trial court concluded that the comment did not warrant a mistrial, that an admonition was sufficient, and denied the defendant's motion for mistrial.
In the instant case, a mistrial was not mandated by La. C.Cr.P. art. 770 or La. C.Cr.P. art. 771. The statement by the prosecutor at issue herein did not constitute a remark or comment on inadmissible evidence of other crimes or on the failure of the defendant to testify at trial. Prior to the opening statements, the trial court instructed the jury that opening statements are not evidence. Further, before jury deliberations the trial court reiterated that statements made by attorneys at any time during the trial are not evidence. The trial court further specifically reminded the jury that opening statements were permitted solely to tell the jury the facts the State expected to prove and are not to be considered evidence. We are not convinced that the fleeting reference at issue contributed to the verdicts. Thus, we find no error or abuse of discretion in the trial court's denying the defendant's motion for a mistrial and for a new trial on this basis.
OTHER CRIMES EVIDENCE
In counseled assignment of error number two, the defendant contends that the trial court erred in admitting other crimes evidence of the presence of marijuana found at both residences. The defendant contends that Shanita Thomas admitted to possession of marijuana, while the State brought charges against the defendant's mother regarding marijuana found in the other residence. Further, the defendant notes that he was not charged with possession of marijuana and argues that the marijuana was not relevant to the instant charges. The defendant further notes that the marijuana was not found near the gun or cocaine or in the presence of the defendant, and argues that the evidence therefore was not part of the res gestae. The defendant argues that the evidence regarding the marijuana was prejudicial and had no probative value to the two counts charged or any element that the State was required to prove. Conceding that the evidence may not have caused any jury confusion, the defendant contends that the lack of confusion does not provide grounds for admission of the evidence. The defendant argues that the only purpose of presenting the evidence was to prejudice the jury and deny him a fair trial. The defendant argues that his "intoxicated and coerced" statement was the State's only evidence of possession, that the State used other crimes evidence to obscure the lack of evidence, and that the verdicts cannot be considered unattributable to the erroneous admission of the evidence.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917, p. 3 (La. App. 1st Cir. 2/18/00), 754 So. 2d 1128, 1130, writ denied, 00-1261 (La. 3/9/01), 786 So.2d 115.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.Accordingly, under La. C.E. art. 404B(1), evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Colomb, 98-2813, p. 3 (La. 10/1/99), 747 So. 2d 1074, 1076 (per curiam). For other crimes evidence to be admissible under the integral-act exception (formerly known as res gestae), the evidence must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice of the other crime evidence as well. State v. Odenbaugh, 10-0268, p. 53 (La. 12/6/11), 82 So. 3d 215, 251, cert. denied, ___ U.S. ___, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). In State v. Brewington, 601 So. 2d 656, 657 (La. 1992) (per curiam), the Louisiana Supreme Court indicated its approval of the admission of other crimes evidence, under this portion of La. C.E. art. 404(B)(1), "when it is related and intertwined with the charged offense to such an extent that the [S]tate could not have accurately presented its case without reference to it."
The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Kimble, 407 So. 2d 693, 698 (La. 1981); State v. Taylor, 01-1638, pp. 10-11 (La. 1/14/03), 838 So. 2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). Integral act (res gestae) evidence in Louisiana also incorporates a rule of narrative completeness without which the State's case would lose its narrative momentum and cohesiveness. See Colomb, 98-2813 at p. 3, 747 So. 2d at 1076. The Louisiana Supreme Court has held that evidence of multiple crimes committed in a single course of conduct is admissible as res gestae at the trial of the accused for the commission of one or more, but not all of the crimes, committed in his course of conduct. State v. Washington, 407 So. 2d 1138, 1145 (La. 1981); State v. Meads, 98-1388, p. 7 (La. App. 1st Cir. 4/1/99), 734 So. 2d 792, 797, writ denied, 99-1328 (La. 10/15/99), 748 So. 2d 465.
Further, the res gestae doctrine incorporates a rule of narrative completeness by which, "the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault." Taylor, 01-1638 at pp. 12-13, 838 So. 2d at 743 (quoting Old Chief v. United States, 519 U.S. at 172, 117 S.Ct. at 644, 136 L. Ed. 2d 574 (1997)). The Louisiana Supreme Court has left open the question of whether res gestae evidence presented under La. C.E. art. 404(B)(1) must pass the balancing test of Article 403. See Colomb, 98-2813 at p. 4, 747 So.2d at 1076. Any inculpatory evidence is "prejudicial" to a defendant, especially when it is "probative" to a high degree. State v. Germain, 433 So. 2d 110, 118 (La. 1983). As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Germain, 433 So. 2d at 118; see also Old Chief v. United States, 519 U.S. at 180, 117 S.Ct. at 650 ("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.").
At the outset, we note that the defendant did not object to the admission of the evidence of the marijuana when it was introduced on the first day of the trial by police testimony and the State's exhibits. The defendant's objection to the evidence came on the second day of the trial when the State requested the testifying police officer to verify the contents of the State exhibit which consisted of a plastic bag of marijuana. Unlike the argument now being raised on appeal, at that point, the defendant objected on the basis that the evidence was cumulative and could confuse the jury.
Thus, the defendant failed to make a contemporaneous objection as required under La. C.E. art. 103(A)(1). See also La. C.Cr.P. art. 841. Nonetheless, we conclude that the evidence of the marijuana constitutes an integral part of the case. See La. C.E. art. 404(B)(1). The police officers' observations and items recovered at the scenes simultaneously with the cocaine and firearm used to support the defendant's convictions herein constituted an integral part of the crimes and was part of the res gestae. To have disallowed evidence of the full picture of what occurred during the execution of the search warrants that morning would have deprived the State's case of its narrative momentum and cohesiveness. Further, assuming, for sake of argument that the balancing test of La. C.E. art. 403 is applicable to integral act evidence admissible under La. C.E. art. 404(B)(1), that test was satisfied in this matter. The facts were unambiguous, included the police officers' personal observations, and did not present any danger of confusion. Accordingly, the prejudicial effect to the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence. Thus, we find no merit to this assignment of error.
MOTION TO SUPPRESS CONFESSION
In the pro se brief, the defendant raises two assignments of error challenging the trial court's denial of his motion to suppress inculpatory statements. In pro se assignment of error number one, the defendant argues that the trial court erred in admitting his statements made while he was intoxicated. The defendant contends all questioning should have ceased the moment Detective Comeaux noticed his obvious intoxication. In pro se assignment of error number two, in a combined argument, the defendant contends that his statements should not have been admitted as they were made under duress. The defendant notes that before a confession can be admitted it must be shown that it was free and voluntary. The defendant specifically contends that his statements were induced by the direct influence of fear, duress, and threats of officers taking his mother, daughter, and girlfriend to jail.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703(A). On the trial of a motion to suppress, the burden is on the State to prove the admissibility of a purported confession or statement by the defendant. La. C.Cr.P. art. 703(D). In addition to showing that the Miranda requirements were met, the State must affirmatively show that the statement or confession was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises in order to introduce into evidence a defendant's statement or confession. La. R.S. 15:451. The State must specifically rebut a defendant's specific allegations of police misconduct in eliciting a confession. State v. Thomas, 461 So. 2d 1253, 1256 (La. App. 1st Cir. 1984), writ denied, 464 So. 2d 1375 (La. 1985). In determining whether the ruling on the defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So. 2d 1222, 1223 n.2 (La. 1979).
The voluntariness of a confession will not be negated by mild exhortations by the police to tell the truth or telling a defendant that if he cooperates the officer will do what he can to help or that "things will go easier" for him. See State v. Blank, 04-0204, p. 18 (La. 4/11/07), 955 So. 2d 90, 108-09, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007); State v. Petterway, 403 So. 2d 1157, 1159-60 (La. 1981). A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward. State v. Robertson, 97-0177, p. 28 (La. 3/4/98), 712 So. 2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).
The admissibility of a confession is, in the first instance, a question for the trial court; its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence. See State v. Patterson, 572 So. 2d 1144, 1150 (La. App. 1st Cir. 1990), writ denied, 577 So. 2d 11 (La. 1991). The trial court must consider the totality of the circumstances in deciding whether a confession is admissible. State v. Hernandez, 432 So. 2d 350, 352 (La. App. 1st Cir. 1983). When the free and voluntary nature of a confession is challenged on the ground that the defendant was intoxicated at the time of the confession, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate the defendant's comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact, and the trial court's conclusion on this issue will not be disturbed unless unsupported by the evidence. State v. Latiolais, 563 So. 2d 469, 472 (La. App. 1st Cir. 1990).
Testimony of the interviewing officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 04-1718, p. 12 (La. App. 1st Cir. 3/24/05), 899 So. 2d 711, 721, writ denied, 05-1570 (La. 1/27/06), 922 So. 2d 544. Further, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La. 5/22/95), 655 So. 2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589, p. 6 (La. 12/1/09), 25 So. 3d 746, 751.
At the hearing on the motion to suppress, Deputy Comeaux testified that the defendant was upset when he first arrived at the residence on Edwards Street, specifically stating that he "wasn't happy that law enforcement was at the residence." Deputy Comeaux informed the defendant that they had a search warrant for the residence and that they had located a gun and drugs at the house. In the beginning of the audio recorded interview, the defendant was advised of his Miranda rights and stated that he understood his rights and subsequently signed a waiver of rights form. The defendant was specifically advised as follows,
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.
Deputy Comeaux noted that the defendant calmed down by the time of the interview, was compliant and able to answer the questions without assistance, and was engaged in the dialogue. Regarding the statements made by the defendant after the recorded interview, Deputy Comeaux noted that as he was completing the booking paperwork, the defendant seemed to be getting along well with the other detectives and began freely making comments. Deputy Comeaux stated that the defendant was never threatened, coerced, or intimidated. Deputy Comeaux acknowledged that during the interview he told the defendant that the other occupants of the residences may be implicated and arrested based on the circumstances. He confirmed that the defendant did not have an odor of alcohol or slurred speech.
The defendant's mother, Barbara Thompson, testified that the police threatened the defendant, stating that they would lock up his mother, his daughter, and his daughter's boyfriend. She further testified regarding the defendant's history of alcohol abuse, that on the day in question he was coming from the casino where he routinely consumed alcohol, and that he was intoxicated when he arrived. The defendant's uncle, Charles Thompson, testified that he was with the defendant at the casino and that he consumed "[t]oo much alcohol" while they were there. The defendant testified at the motion to suppress hearing that he had a sixth grade education. He stated that he could not recall going to the casino before arriving at his mother's residence on the day in question. The defendant further testified that he did not remember giving the recorded interview or his subsequent arrest.
After a careful review of the record, including the recorded interview and the testimony presented at the hearing and the trial, we find that the trial court did not abuse its discretion in denying the motion to suppress the defendant's statements. The testimony at the hearing on the motion to suppress, the waiver form, and the audio recording clearly establish that the defendant was fully advised of his Miranda rights and that he executed a waiver of those rights. Further, the evidence indicates that the defendant knowingly and intentionally waived his rights. The defendant was lucid and responsive during the interview. Although the defendant may have had a genuine concern for the welfare of his mother, girlfriend, and daughter, it is evident that he was in no way coerced into incriminating himself. See State v. Brown, 504 So. 2d 1025, 1031 (La. App. 1st Cir.), writ denied, 507 So. 2d 225 (La. 1987). The test for voluntariness of a confession requires a review of the totality of the circumstances under which the statement was given. State v. Maten, 899 So. 2d at 721. We conclude, as did the trial court, that under a totality of the circumstances, the totality of the interview conveys that the statements were not being made according to any promises, coercion, or threats. Therefore, the trial court did not err or abuse its discretion in denying the motion to suppress his statements. We find no merit in the pro se assigments of error.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.