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State v. Brown

Supreme Court of Louisiana
Jan 30, 1978
354 So. 2d 516 (La. 1978)

Summary

In Brown, during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness' post-arrest silence.

Summary of this case from State v. Lacon

Opinion

No. 60279.

January 30, 1978.

APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE BERNARD J. BAGERT, SR., J.

Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.


The defendant Brown was convicted of simple burglary, La.R.S. 14:62, and sentenced, as a multiple offender, La.R.S. 15:529.1, to three years imprisonment at hard labor. For reasons to be stated, we find no merit to the four assignments of error argued on appeal. Accordingly, we affirm.

According to the State's evidence, Brown and his brother (Otha Simmons) were arrested after they had removed a cabinet from a house through its front door and loaded it into their automobile.

Otha Simmons testified at the trial that he had picked up an abandoned cabinet from the front yard of the residence to bring it home, and that he had asked his brother to help him. The defense tendered by his testimony was that there had been no unauthorized entry of the dwelling — and thus no burglary had been committed, only a trespass or a theft of property outside an un-entered building. (Simmons testified that, as part of a plea bargain, he had pleaded guilty to the burglary only in order to receive probation instead of imprisonment.)

Assignment 6 presents the most arguable issue. It concerns the cross-examination of Simmons, when he was asked why he had not informed the police of this exculpatory version of the incident at the time of the arrest of himself and the accused.

Arguably, this cross-examination constituted an impermissible prosecutorial reference to the witness' post-arrest silence, in derogation of his right to remain silent after police accusation. State v. Montoya, 340 So.2d 557 (La. 1976); State v. Smith, 336 So.2d 867 (La. 1976). The cited decisions held that an accused, at least, may not be so questioned.

However, the objection to this questioning was not made until the prosecutor concluded two pages of cross-examination concerning it. (Following the objection, the witness was not cross-examined further as to his failure to give the arresting police his present exculamatory version of the incident.) The objection was therefore not timely; the defendant cannot complain on appeal of the alleged error, to which he did not object until after the witness had already fully answered all of the prosecutor's queries on the subject. La.C.Cr.P. art. 841.

The remaining assignments present only insubstantial issues: The arresting officer's testimony as to the fact of a radio communication, to explain his presence on the science, is not hearsay evidence inadmissibly introduced to prove the communication's content. State v. Monk, 315 So.2d 727 (La. 1975) (Assignment 5). The prosecutor's comments, giving reasons to question the credibility of Simmons (the accused's brother) and his exculamatory version, were not improper or reversible (Assignments 7, 8).

Decree

Accordingly, we affirm the defendant's conviction and sentence.

AFFIRMED.

SUMMERS, J., CONCURS.


Summaries of

State v. Brown

Supreme Court of Louisiana
Jan 30, 1978
354 So. 2d 516 (La. 1978)

In Brown, during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness' post-arrest silence.

Summary of this case from State v. Lacon

In Brown, during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness' post-arrest silence.

Summary of this case from State v. Wiltz

In State v. Brown, 354 So.2d 516, 517 (La. 1978), during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness's post-arrest silence.

Summary of this case from State v. Pennison

In Brown, during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness' post-arrest silence.

Summary of this case from State v. Williams

In State v. Brown 354 So.2d 516 (La. 1978), the supreme court ruled untimely a defense objection to a prosecutor's cross-examination questions about a witness' post-arrest silence when the defendant waited to object "until after the witness had already fully answered all of the prosecutor's queries on the subject."

Summary of this case from State v. Wafer
Case details for

State v. Brown

Case Details

Full title:STATE OF LOUISIANA, APPELLEE, v. ALVIN BROWN, APPELLANT

Court:Supreme Court of Louisiana

Date published: Jan 30, 1978

Citations

354 So. 2d 516 (La. 1978)

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State v. Domingue

The question remaining is whether defendant waived his right to object to the questioning by his belated…

State v. Wiltz

The supreme court held the objection came too late and the issue could not be raised on appeal.A similar…