State v. Sercovich

26 Citing cases

  1. State v. Motton

    395 So. 2d 1337 (La. 1981)   Cited 82 times
    In State v. Motton, 395 So.2d 1337 at 1350 (La. 1981), we affirmed a trial court's denial of a motion for a new trial when the "witnesses could have been procured with the exercise of the slightest diligence."

    While it is generally considered error for a prosecutor to state an individual belief concerning the accused's guilt when that remark is made in such a way that the jury may conclude that the prosecutor's belief is based on evidence outside the record, the expressing of an opinion based on evidence within the record is permissible. State v. Procell, 365 So.2d 484 (La. 1978); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). In this case the prosecutor's belief and opinion were based on the combined testimony of several state witnesses as well as her own observations, and did not directly urge a guilty verdict on the basis of evidence outside the record.

  2. United States v. York

    578 F.2d 1036 (5th Cir. 1978)   Cited 55 times
    Noting that courts have often sought to distinguish between "preparation for a crime, which is not criminal, and an attempt, which has ripened into an offense"

    . 545, 52 S.Ct. 395, 76 L.Ed. 937 [conviction for an attempt to evade income taxes although the attempt was successful]; O'Brien v. United States, 7 Cir. 1931, 51 F.2d 193, cert. denied, 1931, 284 U.S. 673, 52 S.Ct. 129, 76 L.Ed. 569 [conviction for an attempt to evade taxes although the evasion was completed]; Lightfoot v. State, 1976, 278 Md. 231, 360 A.2d 426 [conviction for attempted armed robbery although the robbery was completed]; State v. Gallegos, 1975, 193 Neb. 651, 228 N.W.2d 615 [conviction for attempt to burgle although burglary was completed]; People v. Johnson, 1971, 21 Cal.App.3d 235, 98 Cal.Rptr. 393 [conviction for attempt to obliterate the manufacturing number on a revolver although obliteration was proved]; State v. Fox, Iowa 1968, 159 N.W.2d 492 [conviction for an attempt to break and enter which succeeded]; Greenwood v. United States, D.C.App. 1967, 225 A.2d 878 [conviction for attempted unauthorized use of motor vehicle, although the offense had been completed]; State v. Sercovich, 1964, 246 La. 503, 165 So.2d 301; Dotye v. Commonwealth, Ky.App. 1956, 289 S.W.2d 206 [conviction for attempted abortion although there was an actual miscarriage]; People v. Jelke, 1956, 1 N.Y.2d 321, 152 N.Y.S.2d 479, 135 N.E.2d 213 [conviction for attempting to induce a woman to be a prostitute although the attempt was successful]; People v. Baxter, 1928, 245 Mich. 229, 222 N.W. 149 [conviction for attempted bribery over defendant's objection that bribery was proved]; cf. Echols v. State, 1975, 134 Ga. App. 216, 213 S.E.2d 907 [conviction for assault with intent to commit murder although battery was proved]; State v. Mathis, 1966, 47 N.J. 455, 221 A.2d 529, rev'd on other grounds, 1971, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 [conviction for killing during a robbery attempt although the evidence established the completed robbery]. This, indeed, is the doctrine we have adopted in conspiracy cases: the conspiracy is not merged into the substantive crime even though successful completion of the crime that was the

  3. State v. Smith

    554 So. 2d 676 (La. 1989)   Cited 33 times
    In Smith, this court reversed a conviction and death sentence because the prosecutor "boldly represented outright to the jury that he had additional evidence of appellant's guilt that he simply saw no need to present to them," and told the jury that he could have put on more witnesses, but that it would have been a waste of time.

    State v. Kaufman, 304 So.2d 300 (La. 1974), appeal after remand, 331 So.2d 16, cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976). See State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), vacated on other grounds, 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed. 2d 1347 (1968), on remand 253 La. 439, 218 So.2d 551 (1969), cert. denied, 369 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504 (1970); State v. Sercorich, 246 La. 503, 165 So.2d 301 (1964); State v. Williamson, 145 La. 9, 81 So. 737 (1919); State v. Accardo, 129 La. 666, 56 So. 631 (1911). The most elementary rule governing the limits of argument is that it must be confined to the record evidence and the inferences which can reasonably and fairly be drawn therefrom.

  4. State v. Sayles

    395 So. 2d 695 (La. 1981)   Cited 33 times

    When the prosecutor stated that Sayles "did it with Kim Robinson," he was stating his conclusion of fact based on the evidence in the record. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). For the foregoing reasons, the conviction and sentence are affirmed.

  5. State v. Procell

    365 So. 2d 484 (La. 1978)   Cited 85 times
    In State v. Procell, 365 So.2d 484 (La. 1978) the court held that the proper vehicle for objection by a defendant to this sort of testimony was a motion for mistrial and request for an admonition to the jury.

    Although it is generally considered erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor's belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). In this case the beliefs and opinions expressed were based upon the evidence produced at the trial.

  6. State v. Drew

    360 So. 2d 500 (La. 1978)   Cited 229 times
    Adopting federal standard for arrests

    Res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before and after commission of crime but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:447 and 448; State v. Batiste, 318 So.2d 27 (La. 1975); State v. Morgan, 296 So.2d 286 (La. 1974); State v. Edwards, 287 So.2d 518 (La. 1973); State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). Specifically, a plea for help by the witness of a crime has been held to be part of the res gestae and allowed to be related at trial by the person whose aid was sought.

  7. State v. Hamilton

    356 So. 2d 1360 (La. 1978)   Cited 49 times
    In State v. Hamilton, 356 So.2d 1360 (La. 1978), we stated that the statute is not the exclusive method of proving that defendant is a habitual offender, relying upon our decisions in State v. Barrow, 352 So.2d 635 (La. 1977); State v. Jones, 332 So.2d 461 (La. 1976); State v. Montana, 332 So.2d 248 (La. 1976).

    In reviewing the policy reasons for the foregoing rule in State v. Kaufman, supra, we quoted the following from 5 Wharton's Criminal Law and Procedure, § 2083, at page 245 (Anderson ed., 1967): ". . . State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Sercovich. 246 La. 503, 165 So.2d 301 (1964); 2 Marr's Criminal Jurisprudence of Louisiana, Section 664 (1923); 5 Wharton's Criminal Law and Procedure, Section 2083 (Anderson ed., 1967); Annotation, 50 A.L.R. 2d 766 (1968). . . ."

  8. State v. Hunter

    343 So. 2d 143 (La. 1977)   Cited 5 times

    The res gestae doctrine in Louisiana is broad and includes statements of those involved in a crime immediately before, during, or immediately after the commission of the crime. LSA-R.S. 15:447 and 15:448; State v. Batiste, La., 318 So.2d 27 (1975); State v. Morgan, La., 296 So.2d 286 (1974); State v. Edwards, La., 287 So.2d 518 (1973); State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). A victim's spontaneous statement immediately after the crime, in the excitement of the occasion, is generally part of the res gestae.

  9. State v. May

    339 So. 2d 764 (La. 1976)   Cited 80 times
    Recognizing the stated rule but finding that the prosecutor's comment did not imply to the jury that he had personal knowledge of facts not presented to them indicating the defendant's guilt

    The jurisprudence of this State clearly reprobates the prosecutor's interjection of his personal opinion as to the accused's guilt where the prosecutor intimates that evidence not presented to the jury points to the defendant's guilt. State v. Kaufman, 304 So.2d 300 (La. 1974); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). However, the State's attorney can unquestionably comment on inferences supported by evidence adduced at trial.

  10. State v. West

    319 So. 2d 901 (La. 1975)   Cited 14 times

    Assignment of Error No. 9 is the defendants' complaint that the admonition was insufficient to cure the prejudice suffered because of the remark. In State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964), we stated the controlling law as follows: "Although it is generally considered to be erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor's belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor states, or it is apparent, that his opinion is based on the evidence of record.