STATE v. MYERS (2025)

Defendant, John L. Myers, appeals his conviction and sentence for attempted third-degree rape. For the reasons that follow, we affirm defendant's conviction and sentence.

Statement of the Case

On September 21, 2023, the Jefferson Parish District Attorney filed a bill of information charging defendant, John L. Myers, with one count of third-degree rape in violation of La. R.S. 14:43. On September 22, 2023, defendant was arraigned and pled not guilty.

On August 1, 2024, a twelve-person jury found defendant guilty of the lesser offense of attempted third-degree rape. On August 6, 2024, defendant filed a motion for new trial. The following day, after a hearing, the trial court denied the motion. On August 13, 2024, the trial court sentenced defendant to twelve years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, and ordered defendant to register as a sex offender. Defendant waived a hearing on his ability to pay fines and fees, and the trial court imposed separate fees to the Jefferson Parish Sheriff's Office (JPSO), the JPSO crime lab, and the indigent defender's board.

On August 14, 2024, the district attorney filed a multiple-offender bill of information alleging that defendant previously was convicted of possession with intent to distribute cocaine in violation of “La. R.S. 40:697(A)”,¹ and that he pled guilty and was sentenced to fifteen years imprisonment at hard labor on April 23, 2008. Defendant pled not guilty to the multiple bill. On September 10, 2024, defendant filed a motion for appeal, seeking review of the August 1, 2024 verdict and the August 13, 2024 sentence. On October 22, 2024, the trial court erroneously marked the motion for appeal as premature.

On October 28, 2024, the court adjudicated defendant a second-felony offender and vacated the original sentence. The trial court imposed an enhanced sentence of twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On November 5, 2024, defendant filed a second motion for appeal challenging the verdict, original sentence, multiple-offender finding, and enhanced sentence, which the trial court granted the next day.

On appeal, defendant contends the trial court erred in denying his motion for a mistrial.

Appellate Jurisdiction

At the outset, we note that when the trial court imposed defendant's sentence on August 13, 2024, defendant did not file a motion to reconsider the sentence. On August 14, 2024, the State filed a multiple bill. On October 22, 2024, the trial judge wrote “premature” across the order that was included with defendant's September 10, 2024 motion for appeal. On October 28, 2024, after adjudicating defendant a multiple offender, the trial court vacated the original sentence and imposed an enhanced sentence. On November 5, 2024, defendant filed a second motion for appeal as to the verdict, the vacated original sentence, the multiple-offender adjudication, and the enhanced sentence. The motion was granted the next day.

Louisiana Code of Criminal Procedure Article 914 sets the delays for making a motion for an appeal of criminal convictions and sentences, which must be made no later than “[t]hirty days after the rendition of the judgment or ruling from which the appeal is taken” or “[t]hirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.” State v. Ellis, 24-96 (La. App. 5 Cir. 12/4/24), 409 So.3d 850, writ denied, 25-6 (La. 4/1/25), 404 So.3d 652.

The appropriate procedural remedy for a defendant seeking to exercise his right to appeal after his conviction and sentence have become final is a timely filed application for post-conviction relief seeking an out-of-time appeal. State v. Brown, 16-141 (La. App. 5 Cir. 9/22/16), 202 So.3d 585, 588. La. C.Cr.P. art. 930.8 provides that applications for post-conviction relief, including requests for out-of-time appeals, must be filed within two years from the date a defendant's conviction and sentence become final, unless certain specific exceptions apply.

As seen above, defendant did not file a motion to reconsider the sentence, but he filed his first motion to appeal the conviction and (original) sentence within thirty days of the original sentence. The trial judge incorrectly marked defendant's first filing as premature, although the motion for appeal would have been premature only with regard to the multiple-bill adjudication and enhanced sentence, which had not yet occurred and thus were not included therein.² Because the judge marked the first motion for appeal premature, defendant filed a second motion, which appears untimely as to defendant's conviction because it was submitted beyond thirty days. On appeal, defendant's sole argument pertains to an alleged error during trial.

Even if the second motion for appeal were untimely, we address the merits of defendant's appeal in the interest of judicial economy and to avoid “further useless delay.” See State v. Gilbert, 23-121 (La. App. 5 Cir. 11/8/23), 377 So.3d 378, 384, writ denied, 23-1640 (La. 5/29/24), 385 So.3d 704 (addressing the defendant's appeal even though this Court found that the motion for appeal was in part untimely filed); State v. Fair, 15-434 (La. App. 5 Cir. 12/23/15), 182 So.3d 1238, 1240 n.1, writ denied, 16-185 (La. 2/3/17), 215 So.3d 688 (addressing the merits of the defendant's appeal, even though the motion for appeal was untimely, to avoid further useless delay). See also State v. Shay, 07-624 (La. 10/26/07), 966 So.2d 562; State v. S.J.I., 06-2649 (La. 6/22/07), 959 So.2d 483 (reversing the appellate court's dismissal of an untimely appeal after the Supreme Court determined the dismissal only prolonged the delay without serving any useful purpose).

Facts

Brittney McKinney woke up alone in a room at the Ramada Inn. She remembered drinking the night before but she could not remember how she got to the hotel, who she was with, or what happened. The police subsequently determined that she left a bar with Anthony Jones and the defendant, John Myers. Ms. McKinney did not know them before that night. Surveillance video from the hotel showed that she was inebriated and that Mr. Jones did not remain at the hotel. Defendant told the police that Ms. McKinney performed oral sex on him, that she attempted to do so another time, and that he attempted penetration. Ms. McKinney was unable to remember this and did not remember if she consented to anything that night.

Ms. McKinney testified that on July 14, 2023, she went to her cousin's house to “bring in” her aunt's birthday. She said they had cake, did karaoke, and played a game that involved taking a shot of beer every five minutes. Everyone took a shot after they sang “Happy Birthday.” Her aunt made a drink with coffee and tequila. She stated that she had a drink, a shot, and some sips of beer. She went home a little before 1:00 a.m. and was picked up by a friend of Micah, who was her friend. Micah worked at Poor Boys and invited her there to belatedly celebrate the birthday. Ms. McKinney was dropped off outside of Poor Boys. Micah met her at the door and got her a drink. Ms. McKinney recalled having three or four drinks at Poor Boys. She said she was in a relationship at the time and was not looking for someone to “hook up with.” She did not remember leaving Poor Boys that night.

Ms. McKinney testified that she next remembered waking up, panicking, and feeling like something was wrong. She did not know where she was. She moved the covers off of her and found the sheets were bloody. She stated that she put her finger in her “private” to see if her tampon was still in but it was not. She explained that she was panicked because she was “on [her] menstrual” and does not have sex during that time. Because the tampon was not inside her, she “felt like sex had happened.” She described that she thought something penetrated her, that everything felt wrong, and that she felt dirty. She began looking for her belongings and located her purse, shorts, and top, but she could not find her underwear or phone. After getting dressed, she went downstairs to the front desk.

At the front desk, Ms. McKinney asked for help. Someone called the police and gave her the phone. She identified her voice on a recorded 9-1-1 call.³ Ms. McKinney stated that she spoke to the police when they arrived.

Jefferson Parish Sheriff's Office (JPSO) Deputy David Blum testified that he and his field training officer Braden Cohen responded to a general call for service on July 15, 2023, to the Ramada Inn at 3400 I-10 Service Road. He recalled that the victim, Ms. McKinney, woke up in a hotel room without her wallet or cell phone and did not know where she was.

Deputy Blum testified that Ms. McKinney said she would not have sex because she was menstruating. She told him that she knew her body, that she felt like she had been penetrated, and that something did not feel right. He agreed that she thought someone took her phone and wallet. He acknowledged that Ms. McKinney told him that she had several drinks that night.⁴

JPSO Detective Andrew Cook investigated the allegations of rape by Brittany McKinney on July 15, 2023. He stated that the responding detective told him that Ms. McKinney woke up in a hotel, did not know where she was or how she got there, and that she believed she was raped and robbed. He explained that the responding detective spoke to Ms. McKinney at the scene and sent her to Tulane Lakeside Hospital.⁵

Ms. McKinney and her mother were escorted to the hospital where Ms. McKinney was photographed and swabbed. Kimberlin Pittman, a registered nurse trained as a sexual assault nurse examiner, performed the examination on Ms. McKinney on July 15, 2023, and authored a report on the examination. The report showed that when she asked Ms. McKinney if there was anything hurting her at the moment, she replied: “My vagina felt weird after this.” Ms. Pittman explained that Ms. McKinney self-reported that alcohol was involved but that she was unsure how much she drank. Ms. McKinney did not mention drugs. Ms. McKinney relayed to Ms. Pittman that she lost her memory and told her that she did not remember after she started drinking. Ms. McKinney did not think she had lost consciousness. She last remembered standing outside of the bar.

Ms. Pittman stated that Ms. McKinney told her the assault occurred between 7 a.m. and 11 a.m. on July 15, 2023, at the Ramada Inn in Metairie. Ms. McKinney advised Ms. Pittman that she did not remember much and that her cell phone, money in her purse, and underwear were missing. The report reflects that Ms. McKinney was not sure of the assailant's name but that she thought it was Anthony Johnson. She told Ms. Pittman that the assailant was a black male of unknown age and that she did not previously know him. Ms. Pittman testified that the physical examination performed by the emergency room staff was within normal limits, and they collected a urine specimen.

Ms. Pittman read aloud Ms. McKinney's summary of the incident, which reflected the report given to Deputy Blum. Ms. Pittman testified that the physical examination appeared within normal limits and that she observed bruising on her arm and lower back. Ms. McKinney was photographed. Ms. Pittman collected and combed Ms. McKinney's pubic hair. She also collected swabs and Ms. McKinney's shorts.

Detective Cook obtained a warrant for the hospital records. He explained that the records showed Ms. McKinney had a blood alcohol level of .113, which was above the legal limit to drive, at almost 5:00 p.m. Ms. McKinney also tested positive for THC and trace amounts of cocaine. Ms. McKinney acknowledged that there was THC in her system and that she expected this, because she smokes marijuana. She also acknowledged that she was told there was cocaine in her system. She testified that she did not expect that because she does not do cocaine.⁶ Detective Cook testified that none of the footage from Poor Boys showed Ms. McKinney smoking or rolling marijuana or doing cocaine. Deputy Blum did not recall Ms. McKinney mentioning marijuana or cocaine to him.

Deputy Blum and Detective Cook viewed hotel video footage of Ms. McKinney walking down the hallway toward the hotel room. Deputy Blum stated that she was not “really walking on her own power” and that she was stumbling, leaning on a black male as he held her up, and did not seem coherent. Detective Cook stated the video showed Ms. McKinney enter with two men who went upstairs to the hotel room, and then Mr. Jones left. Based on the video and room invoices, they determined Ms. McKinney was in room 225 and obtained a search warrant for the hotel records regarding that room. Detective Cook learned that Mr. Jones rented the room, and Mr. Jones was developed as a suspect.

Detective Cook testified that Ms. McKinney told him that before she was at the hotel, she was at Poor Boys on St. Bernard Avenue in New Orleans. With the assistance of a New Orleans police detective, Detective Cook obtained surveillance footage from Poor Boys that showed Ms. McKinney and defendant.⁷

A compilation of the videos from both locations was also admitted into evidence and published. In it, Mr. Jones checked in and out of the hotel. It showed the inside and outside of Poor Boys with the time stamp beginning at 4:50 a.m. In the video timestamped 5:38 a.m., a man appeared to touch Ms. McKinney's buttocks. Detective Cook identified that man as defendant. The video from outside, time stamped 5:52 a.m., appeared to show Ms. McKinney support herself on someone. When they began to separate, she swayed and stumbled backwards.

The next clip was time stamped 6:55 a.m. and showed defendant and Ms. McKinney enter the hotel. She appeared to stumble and sway; she used the wall to hold herself up. Defendant grabbed her around the waist and supported her. Mr. Jones followed approximately a minute behind them. At one point Ms. McKinney's knees appeared to buckle, and her head briefly hung to the side. Mr. Jones approached and opened a door. Defendant supported Ms. McKinney under her arms as he walked them both forward. In the next clip, defendant carried Ms. McKinney in his arms, and they entered a room after Mr. Jones, who left after approximately four minutes. Defendant left around 9:53 a.m.

Ms. McKinney was shown video from that night. She identified herself in it and stated that her phone and drink were in her hand.⁸ As the video played, she stated that she did not know the man who grabbed her “behind” but that she remembered turning around to try to figure out who it was. She agreed that the last thing she remembered was the “butt-touching thing.” Ms. McKinney testified that she did not remember arriving at the Ramada Inn or going to a gas station, and she did not remember being carried into the hotel room or what happened there. She testified that she did not know if she consented to anything that night.

Detective Cook and Deputy Blum explained that the following evidentiary items were located in Ramada Inn room 225: a green Boston Red Sox cap in the bathroom, used condom wrappers, a condom box, empty beverage bottles on the nightstand, and bloody sheets. Deputy Blum described photographs of the room, stating that several showed blood on the mattress. The Trojan Fire and Ice box and four used condom wrappers were collected and sent to the crime lab.

Dona Quintanilla, the latent print section supervisor at the JPSO crime laboratory, was accepted as an expert in latent print processing and comparison. She performed latent print processing and authored two reports. Ms. Quintanilla reviewed five items for latent prints: a Trojan Fire and Ice box, three Trojan condom wrappers, and one Trojan Magnum condom wrapper. She found latent prints on all five items. Only one, the Trojan Fire and Ice box, had a print suitable for comparison.

Ms. Quintanilla testified that the print found on the condom box was searched through the Automated Fingerprint Identification System (AFIS). She then compared the print on the item to each of the ten respondents that the search produced and found one with sufficient features in agreement. She did not know the individual's name, only the State ID number associated with the fingerprints. The prosecutor asked Ms. Quintanilla what a state ID number was. She responded:

Anytime anyone is arrested in Louisiana, their fingerprints are going to go into the AFIS system for the state. If they are arrested or they apply, say, for concealed weapons or fire department or law enforcement, their fingerprints are going to be obtained. In this instance, you don't see a letter, so there's no A at the end of it so it is not an applicant. So this arrest or the SID number would be based from a criminal offense.

Defense counsel objected.⁹ Ms. Quintanilla testified that she then obtained the pertinent information associated with that state ID, which “resulted in an identification due to sufficient agreement in rich detail between the print and the left thumb, Finger No. 6 of John L. Myers.”

Detective Cook authored arrest warrants for defendant and Mr. Jones.¹⁰ They both were arrested, and Detective Cook advised them of their rights and took each of their statements. Defendant explained in his statement that he met a woman, whose name he did not know, at Poor Boys on St. Bernard.¹¹ He recalled that he, the woman, and Mr. Jones were all drinking. She said that she lost her phone, and they could not find it at Poor Boys. Defendant said the woman wanted to go with them, and he agreed. Later in his statement, defendant indicated that he paid for a drink for her at Poor Boys, but that she must have been drinking before he encountered her. Later that night, defendant was in the car when the woman got out of another car and approached him and Mr. Jones. She got in their car, and they looked for her phone together at Bertha's, the bar nearby. The woman did not find it and said she was going with them. The three of them left.

Defendant testified that on the way to the hotel, the woman said she wanted something else to drink, so they stopped at a gas station. The woman asked him to get her purse from the car so she could change her tampon in the gas station bathroom. After she used the bathroom, he bought her a drink and a vape. Defendant described her as normal while they were at the gas station, as she was able to walk and talk. Mr. Jones remained in the vehicle. Defendant explained that they then drove to the hotel. He denied that she was “dozing off” or not fully conscious in the car.

In his statement, defendant said the woman was “kind of sluggish” by the time they got to the hotel. He explained that they took the stairs because the elevator was not working. Defendant acknowledged that the woman was stumbling some and that he held her. Detective Cook told defendant that she did not walk into the hotel room but that he carried her in. Defendant acknowledged that the detective was right and that he carried her from the elevator to the stairs. He denied that she was unconscious when he carried her up the stairs. Defendant stated that they hung around for a bit before Mr. Jones left. He stated the woman was drinking from the bottle he bought her and “talking s**t.” He indicated that she gave him a lap dance. Defendant recalled that he and the woman did not have sex because she was on her period. He described the woman as the aggressor at that point.

Defendant stated, “she was trying to, ya know, give me some head. She gave me some head.” He explained that he put a condom on and that as they moved to the bed, she removed her tampon. He described that there was blood everywhere and that at one point, the tampon was in the bed. Defendant indicated that he was uninterested because of the blood and that she continued giving him “head.” He said he could not get fully erect, so he took the condom off. He repeated that they did not have sex at that time. Defendant said he tried to have sex with her but could not because he could not get erect enough. Defendant said he took the condom off, and they both went to sleep.

Defendant told Detective Cook that he could understand if she just said that she did not remember because they were all “tore up.” He said that it was crazy to say he raped her because he did not do anything. He explained that “all [he] could understand is that, once she did wake up, however it happened, is that you didn't remember what happened last night because she was under the influence and she probably felt some type of way that she woke up in there alone.” He said that he “felt wrong” for that and that he could have brought her home. Defendant stated he did not rape her.¹² Defendant denied that he penetrated her and explained that one of the condoms was used when the woman gave him “head.” Defendant denied giving the woman any drugs.

Detective Cook obtained warrants for Mr. Jones's and defendant's DNA. Marcela Zozaya, a DNA analyst at the JPSO DNA laboratory, was admitted as an expert in forensic DNA analysis. In this case, she analyzed both the physical evidence recovery kit collected from Ms. McKinney, and the reference samples collected from Mr. Jones and defendant, and prepared a report of her findings. Ms. Zozaya tested swabs from Ms. McKinney's inner thigh, genitalia, vagina, and anus, which all tested positive for seminal fluid but not for sperm.¹³ The DNA profile obtained from a breast swab was a mixture of two contributors, one being Ms. McKinney. Ms. Zozaya testified that there was very strong support that defendant was the other contributor to that DNA. Mr. Jones was excluded as a contributor. She explained that defendant's DNA was likely from his hands and that she did not test that sample for semen.¹⁴

Mr. Jones testified that on July 14 into 15, he and defendant went to several bars, including Bertha's and Poor Boys. Mr. Jones remained in the car while defendant spent several hours in Poor Boys. He indicated that when defendant was back in the car, a woman came to the car and talked to defendant. She then got in someone else's car, then went into Poor Boys again for twenty to thirty minutes, then left the bar and approached their vehicle. Mr. Jones stated that she was walking at the time and that they were trying to help her because she lost her cell phone. He tried calling her phone from his to locate it. Mr. Jones stated that she was not overly intoxicated at that time, that she was walking straight, and that her speech was not slurred.

Mr. Jones, defendant, and the woman next went to a gas station and then to the Ramada Inn. Mr. Jones testified that he did not know the woman; he only learned her name, Ms. McKinney, through the prosecutor. He stated he was “quite sure” Ms. McKinney asked to go to the hotel with them and that she voluntarily got in the car. Mr. Jones thought they stopped because Ms. McKinney wanted something to drink, to use the bathroom, or to buy a vape. He did not get out of the car. Mr. Jones described Ms. McKinney as acting normal and not crazy or drunk. He stated she walked on her own to the store.

Mr. Jones testified that when the three of them arrived at the Ramada Inn, they went in a side entrance. Initially, Mr. Jones testified that defendant picked Ms. McKinney up and was holding her at that time; the elevator was broken, so they took the stairs. He then said that defendant held Ms. McKinney after telling them they would have to take the stairs. Mr. Jones said it was not because she could not walk. Once they were inside his room, they went on the balcony. Mr. Jones testified that Ms. McKinney walked to the balcony on her own. After approximately five minutes, Mr. Jones then gathered his things and left. He agreed that Ms. McKinney was conscious when he left. When he was shown photographs, he identified the tobacco products and hat as his, but he said the condoms were not his, though he subsequently acknowledged that he had purchased Magnum condoms the night before. Mr. Jones testified that he did not see defendant have sex with Ms. McKinney. He returned to the hotel between eleven and twelve to pick up defendant. Mr. Jones went to the hotel room, and Ms. McKinney was asleep. He and defendant then left.

DISCUSSION

Defendant asserts a single assignment of error on appeal:

During the trial, one of the State's expert witnesses indicated on the record that Myers’ fingerprints were immediately identified because his fingerprints were registered in a database that cataloged criminal arrests. The expert's statement alerted the jury that Myers was a person of bad character, and this information greatly prejudiced his defense. Defense counsel immediately moved for a mistrial which the court denied.

Defendant claims he was denied a fair and impartial trial when Ms. Quintanilla testified that defendant's fingerprints, which were found on the empty condom box, were registered in AFIS due to a prior criminal arrest. He contends that after Ms. Quintanilla's comment, the jury saw him as a career criminal and that it was likely at least one juror concluded that the prior arrest was for a sex offense, despite Ms. Quintanilla not specifying the prior charge. He argues that the prosecution specifically elicited the comment because it wanted to paint him as a sexual deviant. He concludes that his requested mistrial should have been granted.

The State avers that the trial court did not abuse its discretion in denying defendant's request for a mistrial. It contends that the witness's reference to a prior arrest did not result in substantial prejudice to defendant that deprived him of a reasonable expectation of a fair trial. The State explains that the statement at issue was not deliberately elicited and was not made by a judge, a prosecutor, or a court official. The State also noted that Ms. Quintanilla did not specify a prior crime or bad act. The State asserts that the trial court's admonition was appropriate and sufficient to address any potential prejudice to defendant. The State contends that any error would be harmless.

A mistrial is mandated upon a defendant's motion “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 ․ another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” La. C.Cr.P. art. 770(2). An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. La. C.Cr.P. art. 770. 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. La. C.Cr.P. art. 770.

La. C.Cr.P. art. 771(1) states that 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 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.

“As a general rule, Article 770 does not apply to testimony by a State witness, since a witness is not considered a ‘court official.’ ” State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325 So.3d 513, 548, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071; State v. Hicks, 17-696 (La. App. 5 Cir. 10/17/18), 258 So.3d 1039, 1051, writ denied, 18-1938 (La. 4/15/19), 267 So.3d 1123. However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State and triggers the rule mandating a mistrial. Id. Although 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, unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. Id. The Louisiana Supreme Court has stated that the comment must not “arguably” point to a prior crime; to trigger mandatory mistrial pursuant to Article 770(2), the remark must “unmistakably” point to evidence of another crime and the imputation must “unambiguously” point to the defendant. Id. (citing State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893).

Further, a statement is not chargeable to the State solely because it was made in direct response to questioning by the prosecutor. Manuel, 325 So.3d at 548. Although a prosecutor might have more artfully formulated the question that provoked a witness's response, where the remark was not deliberately obtained by the prosecutor to prejudice the rights of the defendant, it is not the basis for a mistrial. Id. An improper reference to other crimes evidence is subject to a harmless error analysis. Id.

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Articles 770 or 771. La. C.Cr.P. art. 775. Mistrial is a drastic remedy, to be used only upon a clear showing of prejudice by the defendant; a mere possibility of prejudice is not sufficient. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 907, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836. “Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion.” State v. Mejia, 23-161 (La. App. 5 Cir. 11/29/23), 377 So.3d 860, 878, writ denied, 23-1722 (La. 5/29/24), 385 So.3d 705. The standard to judge whether a mistrial should have been granted is whether the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Id.

In State v. Tuckson, 00-1408 (La. App. 5 Cir. 2/28/01), 781 So.2d 807, writ denied sub nom. State ex rel. Tuckson v. State, 01-1129 (La. 1/25/02), 806 So.2d 671, the State's fingerprint expert was asked to describe the process by which he compared latent fingerprints taken from the scene to those of known subjects. He testified that he used the state's AFIS as a tool and that his office developed a suspect. The expert said he entered known personal information about the suspect into AFIS, that the system gave him five possible matches, and that he was able to make a match by comparing the latent print with one of those that AFIS selected. Then, on redirect, the prosecutor mentioned that the expert entered information into the program and asked if he told it to look for the defendant's fingerprints. The expert replied: “No, sir, I told it to look for a black male born in, I believe it was 1973. And what that will do, it will search every black male booked into the system that's born in 1973.” Id. at 813.

This Court determined in Tuckson that the defendant did not suffer any prejudice, as the question and response at issue made no specific mention of past crimes committed, or alleged to have been committed, by the defendant. Moreover, this Court found that the prosecutor's line of questioning appeared to have been aimed at eliciting the steps in the process that the expert used, not at calling the jury's attention to the defendant's prior bad acts. Also, this Court found that the verdict rendered was unattributable to any statements by the expert, concluding that the trial court did not err in denying the defendant's request for a mistrial based on the expert's veiled reference to other crimes committed by him. Id. at 814-15.¹⁵

In State v. Ventris, 10-889 (La. App. 5 Cir. 11/15/11), 79 So.3d 1108, this Court determined the State did not solicit from a witness the statement that the defendant was his drug dealer, noting that the witness could have answered the question regarding their relationship in many ways other than the way it was answered. Moreover, the testimony did not refer to specific crimes and appeared vague and ambiguous. Even when the State took the questioning a step further by inquiring as to the time period of their relationship, the Court found the State was faced with conflicting testimony and was trying to present an explanation for the discrepancies, as the length of the relationship appeared relevant to the credibility of the witness. The Court concluded that a mistrial was not mandated because the statement was not imputable to the State. Further, this Court found that the trial court did not err in denying the motion for mistrial, because the defendant failed to show how he was prejudiced by the comment, and the witness's remark did not make it impossible for the defendant to obtain a fair trial. Id. at 1123. See also Manuel, 325 So.3d at 552-53 (finding that the witness could have answered the State's question of whether he knew why the defendant committed the offense in a number of ways; defense counsel failed to show how the defendant was prejudiced, and the witness's remark did not make it impossible for the defendant to obtain a fair trial).

The State cites State v. Jackson, 00-191 (La. App. 5 Cir. 7/25/00), 767 So.2d 833, 835, a case in which a detective was asked why he charged the defendant with possession of a gun. The detective replied that it was the defendant's house, that he knew it was there, that he “had a past conviction, and that's what he was charged with, along with other charges.” Id. This Court found that the trial judge did not err in denying the defendant's motion for mistrial. Id. at 836. This Court explained that the comment was unresponsive to the question asked. Furthermore, the testimony was vague and made no specific mention of the crimes the defendant was charged with at the time of his arrest. This Court concluded that Article 771 did not mandate a mistrial. Id. See also State v. Roussell, 12-1792 (La. App. 1 Cir. 7/25/13), 2013 WL 3875046, writs denied, 13-2047, 13-2070 (La. 3/14/14), 134 So.3d 1193 (finding the trial court did not err in denying the motion for mistrial, and explaining that the witness's comment was not solicited by the prosecutor; the information was provided as part of the narrative of events leading to the defendant's identification and arrest; the defendant was not substantially prejudiced; and the trial court's admonition sufficiently assured the defendant a fair trial).

Here, at trial, Ms. Quintanilla, a witness for the State, testified that she used AFIS to search the fingerprint found on the condom box. AFIS produced a list of ten respondents that were compared to the print at issue. She ultimately found one with sufficient features in agreement. She knew only the State ID number associated with the fingerprints—not the individual's name. The prosecutor asked: “And what exactly is a state ID or SID number?” Ms. Quintanilla replied:

Anytime anyone is arrested in Louisiana, their fingerprints are going to go into the AFIS system for the state. If they are arrested or they apply, say, for concealed weapons or fire department or law enforcement, their fingerprints are going to be obtained. In this instance, you don't see a letter, so there's no A at the end of it so it is not an applicant. So this arrest or the SID number would be based from a criminal offense.

Defense counsel objected. At the bench, counsel argued that Ms. Quintanilla said defendant was arrested previously for something, and moved for a mistrial. In response, the prosecutor explained that this was how the AFIS system worked and that it was res gestae as to how she made the identification. The prosecutor explained that his question was: “What is a state ID number?” He asserted that he did not elicit from the witness anything about how defendant became part of the AFIS system. He explained that she referenced other ways that fingerprints can get on file, such as applying for a concealed carry permit or for a particular job. The prosecutor thought an admonition would suffice. Defense counsel replied that the witness clarified that this was not an application but instead a criminal arrest, that defendant had not yet testified, and that he was entitled to have his criminal history or an inference of a criminal history precluded from being presented to the jury.

Defense counsel subsequently explained that he moved for a mistrial because defendant is entitled to a presumption of innocence and to not have any prior arrests introduced without the State filing the necessary motions, which it did not do. Counsel asserted that the jury made inferences that defendant has an arrest history, which inferences were prejudicial. Counsel also objected to any curative instructions, because telling the jury to ignore the arrest history would bring attention to it. Counsel contended that the State should have talked to its witness and told her not to talk about his arrest history.

The prosecutor cited La. C.Cr.P. art. 770, which provides that for a mandatory mistrial, the prejudicial comment must be made in the jury's hearing by a judge, district attorney, or court official. See State v. Washington, 558 So.2d 1302 (La. App. 4 Cir. 1990), writ denied, 565 So.2d 441 (La. 1990).”¹⁶ The prosecutor stated that a mandatory mistrial was not required and that an admonition or curative instruction may be given.

The trial court found that the proper remedy was a curative instruction, explaining that the response to the State's question was a surprise to all parties, and the State did not intend to elicit the testimony. The trial court pointed out that the defense did not want one. Relying on State v. Gullette, 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753, the trial court determined that the issue did not rise to the level of a mistrial and denied the request.

Defense counsel objected on the basis that a curative instruction would be insufficient, but stated that he thought he had to ask for one. After some discussion, the trial court instructed the jury “that any reference to the source of a SID number, i.e., State ID number should be disregarded by this jury as the statement is not relevant to any of the charges before this Court.”

After trial, defendant filed a motion for new trial arguing that the trial court erred in denying the motion for mistrial based on the admission of improper other-acts evidence. He explained Ms. Quintanilla's testimony and referenced La. C.E. art. 404(B), noting that the State did not file a motion to present evidence of other crimes, wrongs, or acts. He argued that Ms. Quintanilla would not have testified that the SID number indicated defendant was previously arrested if the State had prepared its witness to avoid such conclusory statements. Defendant acknowledged that the court gave a curative instruction but argued there was no way to “un-ring the proverbial bell,” arguing that the violation of La. C.E. art. 404(B) triggered an automatic mistrial.

In response, the prosecutor again cited La. C.Cr.P. art. 770 and explained that Ms. Quintanilla said that the information was based on a previous arrest, but the State did not solicit this testimony in its direct examination, that a mistrial was not mandatory but rather discretionary, and this was not a basis for a new trial. The trial court denied the motion for new trial. Defense counsel objected.¹⁷

We find that Article 770 does not apply here. The State's witness, Ms. Quintanilla, is not a court official. Further, the prosecutor's question does not appear to have been intended to deliberately elicit a response about a prior arrest, and therefore, a mandatory mistrial was not triggered. Ms. Quintanilla could have answered the State's question regarding what a State ID number was in several ways, such as explaining that the State assigns a unique number to each individual, or by generally stating there are multiple reasons a person may have a state ID number, without specifying that defendant's State ID number relates to an arrest from a criminal offense.

Additionally, Ms. Quintanilla's testimony did not refer to a specific arrest or crime. As such, defendant did not suffer substantial prejudice such that he was deprived of any reasonable expectation of a fair trial. Finally, the judge sufficiently admonished the jury. Accordingly, we find the trial court did not err in denying defendant's motion for mistrial.

Furthermore, even if Ms. Quintanilla's testimony regarding a prior criminal arrest were impermissible, any such error is subject to a harmless error analysis. See Manuel, 325 So.3d at 563; Ventris, 79 So.3d at 1125; Tuckson, 781 So.2d at 814. An error is harmless when the guilty verdict actually rendered was surely unattributable to the error. State v. Bauer, 23-447 (La. App. 5 Cir. 10/30/24), 397 So.3d 1249, 1263 n.7, writ denied, 24-1455 (La. 4/1/25), 404 So.3d 650. Here, videos show the victim inebriated to such a degree that she could not stand or walk unassisted. Defendant and Mr. Jones both acknowledged that she went to the hotel with them that night. While the victim was unable to remember what happened, defendant told Detective Cook that she performed oral sex on him, that she attempted to do it a second time, and that he attempted to vaginally penetrate her. In light of the other evidence presented at trial, Ms. Quintanilla's reference to other-crimes evidence was harmless because the verdict rendered was surely unattributable to the purported error. For all of these reasons, defendant's assignment of error lacks merit.

Error Patent Discussion

We reviewed the record for errors patent according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals no errors patent in this case that require corrective action.

DECREE

For the foregoing reasons, defendant's conviction and sentence are affirmed.

AFFIRMED

FOOTNOTES

1.   The correct statutory citation for this offense appears to be La. R.S. 40:967. This typographical error does not prejudice defendant. See State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 962, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005).

2.   La. C.Cr.P. art. 915(A) provides in part: “When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court.” See State v. Greene, 12-2027 (La. 3/15/13), 109 So.3d 370.

3.   Nancy Clary with the Jefferson Parish Sheriff's Office identified a DVD for a call placed on July 15, 2023 at 12:19, regarding 3400 South I-10 Service Road West, and a related certificate of authenticity and printout. The call was published to the jury. In that call, a woman who identified herself as Ms. McKinney stated that she thought she was drugged and brought to the hotel because she did not remember going there. She stated that she was robbed and that when she woke up, she was alone.

4.   Deputy Blum explained that he and Deputy Cohen wore body cameras. Their body-camera footage was admitted into evidence and played for the jury. In the video, the woman told Deputy Blum that she was drinking and had gone to Poor Boys, a bar downtown. Ms. McKinney explained that she did not have her ID because it was in her phone, which she did not have. She told Deputy Blum that the man stole it and that she had everything when she left to go out. Ms. McKinney said she knew there was a man but that she did not know who he was or what he looked like. She said she did not know why she could not remember anything. Deputy Blum asked Ms. McKinney how many margaritas she had. She replied that they played some beer games and that she had approximately three or four shots, along with a specialty coffee drink. She stated that this was not enough for her to not remember anything.

5.   Detective Cook met Ms. McKinney at her home. He testified that her statement was consistent with her statement to the responding officers.

6.   Ms. McKinney described that the last time she “actively and freely” did cocaine was four years ago. Ms. McKinney stated she occasionally takes “trains,” which she explained was Tramadol. She said she did not take trains that night.

7.   The videos from the hotel and from Poor Boys were admitted into evidence and published to the jury. Detective Cook testified that the videos are multiple clips from multiple surveillance systems. Various unspecified portions of these files were played during cross-examination.

8.   Detective Cook testified that Ms. McKinney could not find her cell phone, so he obtained her phone records. He identified location maps of her phone based on those records, which showed that it never left Poor Boys.

9.   This testimony and objection are the subject of defendant's sole assignment of error, addressed below.

10.   Detective Cook explained that although he authored an arrest warrant for Mr. Jones for the rape of Ms. McKinney, after speaking with him and reviewing the evidence, he asked the district attorney to drop the charges against Mr. Jones.

11.   Defendant's recorded statement was admitted into evidence and played for the jury.

12.   Defendant also denied that they talked about having sex while they were at the bar or in the car. Defendant explained that the only time they talked about sex was in the hotel room. He explained that he used two of Mr. Jones's condoms. Defendant did not remember if he bought any at the gas station but stated he uses Magnums. He said he might have already had two condoms but that if he did not, then he bought them at the gas station. He thought he flushed the condoms down the toilet.

13.   Ms. Zozaya explained that if an individual wore a condom, seminal fluid would probably be found but not sperm. She also explained that there could be seminal fluid involved before a condom is used. Ms. Zozaya agreed that the seminal fluid could have been transferred through touch, such as if a person were rubbing themselves to try to get an erection.

14.   Additionally, there was insufficient male DNA to produce a valid profile on the inner thigh and genitalia swabs; there was no male DNA detected on the vaginal swab or the anal swab.

15.   See also State v. Barrington, 22-789 (La. App. 1 Cir. 3/16/23), 2023 WL 2531519, writ denied, 23-477 (La. 11/8/23), 373 So.3d 59; State v. Smith, 11-664 (La. App. 4 Cir. 1/30/13), 108 So.3d 376, 386, writ denied, 13-472 (La. 10/4/13), 122 So.3d 551.

16.   In Washington, the defendant complained that his motion for mistrial was wrongfully denied. When an officer was testifying as to what she found when she searched the address where the defendants were arrested, she said: “I also found two arrest registers in the name of Charles Washington.” The Fourth Circuit concluded that a mistrial was not mandatory and that the appropriate remedy was an admonition. Id. at 1305.

17.   Defendant does not challenge the ruling on the motion for new trial in his appeal.

CHEHARDY, C.J.