Opinion
NO. 2010 KA 2107R
10-24-2012
STATE OF LOUISIANA v. AUBREY BROWN
HON. SCOTT M. PERRILLOUX DISTRICT ATTORNEY PATRICIA PARKER ASSISTANT DISTRICT ATTORNEY AMITE, LA ATTORNEYS FOR STATE OF LOUISIANA MARY E. ROPER BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLANT AUBREY BROWN
NOT DESIGNATED FOR PUBLICATION
On Remand from the Supreme Court of Louisiana
On Appeal from the
21st Judicial District Court
in and for the Parish of Tangipahoa, Louisiana
Trial Court No. 110284
Honorable Ernest G. Drake, Jr., Judge
HON. SCOTT M. PERRILLOUX
DISTRICT ATTORNEY
PATRICIA PARKER
ASSISTANT DISTRICT ATTORNEY
AMITE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
MARY E. ROPER
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
AUBREY BROWN
BEFORE: KUHN, PETTIGREW, AND HIGGINBOTHAM, JJ.
PETTIGREW , J.
The defendant, Aubrey Brown, was charged by bill of information with simple burglary of a religious building, in violation of La. R.S. 14:62.6. The defendant pled not guilty, was tried by a jury of twelve, and convicted as charged. He received a sentence of 12 years imprisonment at hard labor, without the benefit of parole. On appeal, this court conducted a review for error under La. Code Crim. P. art. 920(2) and noted the defendant's conviction stemmed from a proceeding in which a six-person jury offense had been mistakenly tried in a twelve-person jury forum. Accordingly, in an unpublished decision, we pretermitted consideration of the two assignments of error, reversed the defendant's conviction, vacated the sentence, and remanded the case to the trial court for a new trial. State v. Brown, 2010-2107 (La. App. 1 Cir. 5/6/11), 66 So.3d 81 (unpublished opinion). However, the Supreme Court reversed, finding that the defendant acquiesced in the error by actively participating in the selection of a twelve-person jury without objection at any stage of the proceedings and thereby waived any relief on appeal on grounds that the panel selected was composed of a greater number of jurors than required by law. State v. Brown, 2011-1044, p. 5 (La. 3/13/12), 85 So.3d 52, 55 (per curiam). The case was remanded to this court for consideration of the assignments of error pretermitted on original appeal. For the following reasons, we now affirm the defendant's conviction and sentence.
The defendant was also charged with simple burglary, in violation of La. R.S. 14:62, but that charge was severed and ultimately dismissed.
The following facts are essentially repeated from our original opinion. On April 25, 2004, at approximately 7:26 p.m., Lieutenant Richard Lindsey, of the Tangipahoa Parish Sheriff's Office, was on uniform patrol when he was dispatched to Starney Baptist Church on Old Baton Rouge Highway in Hammond, Louisiana, to investigate a burglary. When Lieutenant Lindsey arrived at the church, he observed damage to the west side of the building. There was a broken window, and the rear door was damaged. Shortly thereafter, Pastor Michael Jackson, the head of the church, arrived at the scene. Upon inspection of the premises, Pastor Jackson advised that a keyboard was missing. Lieutenant Lindsey was later advised by a "concerned citizen" that the defendant was observed traveling toward Anderson Enterprise, an area known for drug activity, with a keyboard in hand.
On May 3, 2004, after he was apprehended on an outstanding warrant, the defendant was questioned by the police regarding the instant offense. Detective Roy Albritton, of the Tangipahoa Parish Sheriffs Office, testified that the defendant waived his right to remain silent and verbally confessed to burglarizing the church and stealing the keyboard. The defendant advised Detective Albritton of the location of the keyboard. The defendant stated he sold the keyboard to Bradley Peters. The keyboard eventually was recovered from Mr. Peters and returned to the church.
ASSIGNMENT OF ERROR NUMBER ONE
In this assignment of error, the defendant contends that the trial court erred in refusing to grant a mistrial. Specifically, the defendant argues that Detective Albritton made two improper responses alluding to defendant's prior criminal history, which prejudiced him in the eyes of the jury.
During the prosecutor's direct examination of Detective Albritton, the following colloquy occurred:
Q. Could you state what information, not from whom or not what was said, but what information you had about how Aubrey Brown was linked to this case?
A. Okay. During my investigation, the-where his name come up, and also during my arrest, I had apprehended him on an outstanding warrant that I had.
[DEFENSE COUNSEL:] Objection, Your Honor.Thereafter, on redirect examination, the following colloquy occurred:
THE COURT: Sustained. We are interested in this case, Officer.
Q. What are some of the reasons why some of these statements may not be recorded?
A. Some reasons is a lot of times-well, like I say, when I have a lot of dealings with a person, I get the person that knows them and-
[DEFENSE COUNSEL:] Objection, Your Honor. We are talking about this particular incident, this case.
THE COURT: Sustained.
After the conclusion of Detective Albritton's testimony, out of the jury's presence, defense counsel requested a mistrial based on the prejudicial effect of these alleged references to the defendant being a repeat offender. After hearing arguments from the prosecutor and defense counsel, the trial court noted that it had sustained the objections and concluded that the situation did not mandate a mistrial.
Louisiana Code of Criminal Procedure article 770(2) provides for a mandatory mistrial when a remark is made by the judge, the district attorney, or a court official within the hearing of the jury and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Dietrich, 567 So.2d 623, 634 (La. App. 1 Cir.), writ denied, 568 So.2d 1079 (La. 1990). However, absent a showing of a pattern of unresponsive answers or improper intent, a police officer does not fall within the purview of Article 770(2). The testimony of Detective Albritton showed no pattern of unresponsive answers or improper intent. See State v. Nettles, 448 So.2d 250, 252 (La. App. 1 Cir. 1984) (where the officer's response that he "had previous experience with" the defendant was held not to warrant a mistrial under Article 770).
Louisiana Code of Criminal Procedure article 771 provides for a discretionary mistrial, as follows:
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:
. . . .
(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.
A mistrial under the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Thompson, 597 So.2d 43, 46 (La. App. 1 Or.), writ denied, 600 So.2d 661 (La. 1992). The jurisprudence has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State and would mandate a mistrial. However, unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. State v. Thompson, 597 So.2d at 46.
As the trial court noted in denying the motion for a mistrial, the fact that Detective Albritton stated he had previously known the defendant was not a direct reference to other crimes committed by the defendant. While the reference to the defendant's arrest on an unrelated warrant presents a closer question, the second and fourth circuits have concluded a mistrial was not warranted under very similar circumstances. See State v. Bradley, 43,593, pp. 6-8 (La. App. 2 Cir. 10/29/08), 997 So.2d 694, 698-700, writ denied, 2008-2997 (La. 9/18/09), 17 So.3d 384, cert, denied, ____ U.S. ____, 130 S.Ct. 2093, 176 L.Ed.2d 723 (2010); State v. Butler, 609 So.2d 901, 904 (La. App. 4 Cir. 1992). Considering ail of the above, we find no indication that the defendant was unable to obtain a fair trial because of these responses. Accordingly, we find no abuse of discretion in the trial court's ruling denying the defendant's motion for a mistrial or deciding against an admonition.
Even assuming, arguendo, that the trial court erred in failing to grant a mistrial, we nevertheless find any such error to be harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921. In Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993), the United States Supreme Court clarified the harmless error analysis as follows: The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Emphasis in original.) In the instant case, because the defendant confessed to this burglary, we find that he could not possibly have been prejudiced by these vague references to other crimes. In other words, the guilty verdict actually rendered in this trial was surely unattributable to any such errors. This assignment of error is meritless.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, the defendant contends that he was convicted by a non-unanimous verdict, in violation of the United States and Louisiana Constitutions. Specifically, he contends that La. Code Crim. P. art. 782(A), which allows 10-2 non-unanimous verdicts, violates the Sixth Amendment right to a jury trial since it must be considered in light of the Fourteenth Amendment right to due process of law.
Louisiana Constitution article I, § 17(A) and Article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 406, 92 S.Ct. 1628, 1630, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La. 1982); State v. Shanks, 97-1885, pp. 15-16 (La. App. 1 Cir. 6/29/98), 715 So.2d 157, 164-165.
The defendant suggests that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which emphasize the necessity of a unanimous verdict, "implicitly overrule the prior anomalous holding in Apodaca, and must be taken account of by this Court." This argument has been repeatedly rejected by this court. See State v. Smith, 2006-0820, pp. 23-24 (La. App. 1 Cir. 12/28/06), 952 So.2d 1, 15-16, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352; State v. Caples, 2005-2517, pp. 15-16 (La. App. 1 Cir. 6/9/06), 938 So.2d 147, 156-157, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684. Moreover, our Supreme Court has affirmed the constitutionality of Article 782. In State v. Bertrand, 2008-2215, pp. 5-8 (La- 3/17/09), 6 So.3d 738, 741-743, the Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Accordingly, this assignment of error is without merit.