Opinion
NO. 2012 KA 2077
2013-09-13
STATE OF LOUISIANA v. QUINN MICHAEL FORET, II
Camille A. Morvant, II District Attorney Jennifer F. Richard Assistant District Attorney Thibodaux, LA Attorneys for Plaintiff-Appellee, State of Louisiana Bertha M. Hillman Thibodaux, LA Attorney for Defendant-Appellant, Quinn Michael Foret, II
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
17th Judicial District Court,
In and for the Parish of Lafourche,
State of Louisiana
Trial Court No 503678
Honorable Jerome J. Barbera, III, Judge Presiding
Camille A. Morvant, II
District Attorney
Jennifer F. Richard
Assistant District Attorney
Thibodaux, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Bertha M. Hillman
Thibodaux, LA
Attorney for Defendant-Appellant,
Quinn Michael Foret, II
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, J J.
HIGGINBOTHAM, J.
The defendant, Quirm Michael Foret, II, was charged by bill of information with simple burglary, a violation of La, R.S. 14:62. He pled not guilty and, following a jury trial, was found guilty as charged. He filed a motion for postverdict judgment of acquittal and a motion for new trial, both of which were denied. He was fined $2,000,00 and sentenced to six years at hard labor. Additionally, the district court revoked the defendant's probation for a prior conviction, made that five-year sentence executory, and ordered that sentence to run consecutively with the sentence for the instant offense. The defendant now appeals, arguing that the district court erred in denying his motion for mistrial. For the following reasons, we affirm the defendant's conviction and sentence.
The defendant was convicted of felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80, on December 9, 2008, under Seventeenth Judicial District Court Docket No. 462822, and would have completed his probation period for that conviction on December 9, 2011. His probation was extended pending the outcome of the instant offense.
FACTS
Shanie Gaudet lives with her husband, two daughters, and her father-in-law. She was out of town June 17, 2011, through June 22, 2011. During that time, her oldest daughter, Jolie, who was dating the defendant at the time, and her father-in-law were the only two people staying in the home. While packing her suitcase to leave again on June 24, 2011, she noticed her safe, a glass jar containing loose change, and her gun were missing. The safe contained her marriage license, passport, vehicle titles, social security cards, a credit card, a collectible lighter, and $1,600.00 in cash. She immediately spoke with Jolie, who denied taking the items. She then contacted the police.
Jolie was away from the home on June 20, 2011, from approximately 5:30 p.m. until 10:00 p.m. assisting relatives whose vehicle broke down. She sent the defendant a message letting him know that she would be assisting her relatives and later sent him another message letting him know that she was returning home. Before she returned home, she stopped at the convenience store where she was employed. While there, one of her coworkers told her that the defendant came in sometime between 5:00 p.m. and 9:00 p.m. to get change for a $100.00 bill. She questioned the defendant about this because he owed her $100.00, and earlier that day, he told her that he did not have any money The defendant denied having the money.
When Jolie returned home from assisting her relatives that night, she noticed that the front door deadbolt was unlocked and the bottom lock was locked. She only locked the deadbolt when she left home because she did not have a key to the bottom lock. However, because her grandfather was not there when she left and was home when she returned, she thought that he entered the main home through the front door when he returned and accidentally locked the bottom lock. She went around to his in-law suite which was connected to the main home, and he let her enter the home through his door, which he sometimes left unlocked.
The next day at work, she reviewed the store's videotape from the day before and saw the defendant holding cash and breaking a $100.00 bill.
Officers were given the defendant's name as a possible suspect. They conducted two interviews with the defendant and noticed he was wearing an ankle bracelet that monitors with GPS. Tracking history showed that the defendant was moving toward the Gaudets' home on June 20, 2011, from 8:02 p.m. to 8:13 p.m., was near the home from 8:17 p.m. to 8:26 p.m., and was moving away from the home at 8:27 p.m. It also showed him at other locations, including the convenience store where Jolie worked, and the area where the safe was found.
MOTION FOR MISTRIAL
In his sole assignment of error, the defendant argues that the district court erred in denying his motion for mistrial because testimony was presented on other crimes evidence.
The defendant's probation officer, Jason Manzella, testified at trial that he was using an electronic GPS monitoring ankle bracelet to supervise the defendant. Prior to trial, the state filed notice of intent to introduce evidence of other crimes pursuant to Louisiana Code of Evidence article 404B. Its notice of intent stated, "[w]hile the State does not intend to introduce evidence of any specific other crime, wrong, or act, the State does intend to introduce evidence that the defendant was being monitored by GPS tracking through the Department of Probation and Parole, thus alluding that he was previously convicted." While conducting the direct examination of Manzella, the state did not allude to the crime for which the defendant was on probation.
On cross-examination, defense counsel asked Manzella, "Are these bracelets normally used for low-risk probationers?" Manzella responded, "No, we have them specifically for sex offenders." Defense counsel then moved for a mistrial, arguing that Manzella's response improperly referred to another crime committed by the defendant.
In denying the motion for mistrial, the district court stated that it had already been suggested to the jury, without objection, that the defendant was either on probation or parole prompting the electronic monitoring. The court then asked both the state and the defense if either requested an admonition, but neither did. After rejecting the court's offer to admonish the jury, defense counsel continued the cross-examination of Manzella, questioning him on the offense that the defendant was on probation for and the specific details of that offense.
Mistrial is a drastic remedy that should only be declared upon a clear showing of prejudice by the defendant; a mere possibility of prejudice is not sufficient. State v. Ducre, 2001-2778 (La. 9/13/02), 827 So.2d 1120, 1120 (per curiam). Louisiana Code of Criminal Procedure article 770(2) prohibits reference by a judge, district attorney, or a court official to other crimes by the defendant as to which evidence is not admissible under penalty of mandatory mistrial. Remarks by witnesses fall under the discretionary mistrial provisions of Louisiana Code of Criminal Procedure article 771, which provides, in pertinent part:
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 district court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. A district court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Johnson, 2006-1235 (La. App, 1st Cir. 12/28/06), 951 So.2d 294, 300.
Manzella's comment was not elicited by the state, but was given on cross-examination in response to a question by defense counsel. The state cannot be charged with testimony elicited by defense counsel implying that the defendant had previously committed other crimes. State v. Tribbet, 415 So.2d 182, 184 (La. 1982). There is no suggestion or indication that the remark was made in order to prejudice the defendant; rather, the witness made the statement by way of explaining what types of offenders the GPS bracelets are normally used for in direct response to the question asked by defense counsel. Moreover, the district court offered to admonish the jury, but the defendant rejected the offer and chose, instead, to continue questioning Manzella regarding the specific details of the defendant's other crimes. The district court was not mandated to grant a mistrial since the remark was not made by the judge, district attorney, or a court official. There is no indication that the defendant was unable to obtain a fair trial because of Manzella's statement. Therefore, we find no abuse of discretion in the district court's denial of the motion for mistrial.
This assignment of error is without merit.
CONCLUSION
For these reasons, we affirm the conviction and sentence of defendant, Quinn Michael Foret, II.
CONVICTION AND SENTENCE AFFIRMED.