STATE OF LOUISIANA v. ANTHONY THOMAS (2000)

The defendant, Anthony Thomas, was charged by grand jury indictment with aggravated burglary, a violation of La. R.S. 14:60. He pled not guilty. After trial by jury, he was found guilty of the responsive offense of attempted aggravated burglary, a violation of La. R.S. 14:60 and 14:27. Subsequently, he was adjudicated a third felony habitual offender. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant has appealed, urging two assignments of error.¹

FACTS

The defendant and the victim had a romantic relationship and lived together for a short period of time in the victim's apartment. After the relationship ended, the defendant moved out of the victim's apartment. The victim changed the locks because she claimed the defendant ransacked her apartment.

On May 18, 1998, as the victim approached her apartment door with her two-year-old child, the defendant appeared at her doorway. He pushed the victim into her apartment. 2 Once inside, defendant pushed the victim to the floor. He put on a pair of gloves that he had in his pocket and punched the victim in the stomach, slapped her face, and choked her. He told the victim that he wanted to have sexual intercourse with her. The victim testified at trial that she told the defendant she would have sexual intercourse with him so that he would stop hitting her.

The defendant then left the victim's apartment to turn off his vehicle, which he had left running. After the defendant exited her apartment, the victim ran to a neighbor's home where she called the police. According to the victim's neighbor, Constance Addison, the victim was very upset. Addison observed the defendant return to the victim's apartment and then leave.

Baton Rouge City Police Officer John Norwood responded to the victim's call. He observed that the victim was upset and crying. Norwood subsequently observed the defendant in the apartment complex and the defendant was arrested.

PROCEDURE

Defendant raised two assignments of error: (1) insufficiency of the evidence, and (2) denial of defendant's motion for a mistrial based on the prosecutor's reference in closing argument to defendant's failure to take the stand. We find reversible error in the defendant's second assignment of error. However, when issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731, 734 (La. 1992). When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime. The insufficiency of the evidence renders trial error issues moot. Thus, any discussion by the reviewing court of the trial error issues would be pure dicta. Id.

“When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial.” Id. If the reviewing court finds trial error, which was not harmless, in cases where the entirety of the evidence was sufficient to support the conviction, the accused must receive a new trial. He is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Id.

Accordingly, we proceed first to determine whether the entirety of the evidence was sufficient to support the defendant's conviction for aggravated burglary.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends that the evidence was insufficient to support his conviction. In his brief to this court, the defendant contends that the evidence does not support a finding that, when he entered the victim's apartment, he intended to commit rape or any crime required by La. R.S. 14:60. In support of the argument regarding the defendant's lack of intent to commit rape, defendant points out in the victim's own testimony that she agreed to have sexual intercourse with the defendant so he would stop hitting her. Defendant argues that the victim's testimony “made clear that she agreed to have sex and that [the defendant] made no threat or attempt to rape her.” Defendant claims that he merely wanted to talk the victim into having consensual sex. Defendant also points out that he left his truck running outside the victim's apartment. Defendant asserts that if he had intended to rape the victim, he would not have left his truck running. It is argued that the defendant intended to stay only as long as the victim “agreed to permit him to stay.”

The standard of review for the sufficiency of evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821; State v. King, 563 So.2d 449, 456 (La. App. 1st Cir.), writ denied, 567 So.2d 610 (La. 1990). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. RS. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La. App. 1st Cir.), writ denied, 532 So.2d 130 (La. 1988). This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Polkey, 529 So.2d 474, 476 (La. App. 1st Cir. 1988), writ denied, 536 So.2d 1233 (La. 1989).

The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Johnson, 529 So.2d 466, 473 (La. App. 1st Cir. 1988), writ denied, 536 So.2d 1233 (La. 1989).

La. RS. 14:60 provides, in part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,

(1) Is armed with a dangerous weapon; or

(2) After entering arms himself with a dangerous weapon; or

(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

The accused must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. RS. 14:10(1). Specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Hennis, 98-0664, p. 8 (La. App. 1st Cir. 2/19/99), 734 So.2d 16, 20, writ denied, 99-0806 (La. 7/2/99), 747 So.2d 16.

The attempt statute, La. R.S. 14:27, provides that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object, is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

According to the evidence, as the victim was entering her apartment, the defendant pushed her inside the apartment and locked the door. The defendant put gloves on, and then pushed the victim, choked her, punched her in the stomach, and slapped her face. The defendant told the victim that she never talked to him anymore and that he wanted to have sexual intercourse with her. The victim testified that she was scared of the defendant. She agreed to have sexual intercourse with him so he would stop hitting her. She fled the apartment after he left to turn off the engine of his truck.

When the victim subsequently returned to her apartment, she discovered that her apartment key was missing. She informed the police about the missing key. After the defendant was arrested, the police found the key on the defendant and returned the key to the victim. The victim testified that at one time she and the defendant had dated. When they broke up, she had the locks to her apartment changed. The instant incident occurred approximately one month after she changed the locks. The victim denied inviting the defendant to her apartment. She indicated that she had seen him earlier that day and specifically told him not to come around.

The victim's neighbor, Constance Addison, testified that the victim ran to her house. The victim was “hysterically screaming.” The victim, who was crying and upset, called the police on Addison's phone. Addison looked out her window and saw the defendant going into the victim's apartment. The defendant began knocking on doors and then left. However, according to Addison, the defendant returned and went into the victim's apartment again. After the police arrived, someone saw the defendant run away. The state and the defense stipulated that the testimony of Katrina Gutter, who was with Addison, would be essentially the same as Addison's testimony.

According to Baton Rouge City Police Officer John Norwood, the victim was crying, upset, and visibly shaken. Norwood first observed the defendant coming from one of the buildings near the victim's apartment. Norwood took the defendant into custody. Norwood took the victim's key from the defendant after the victim told him that the defendant had a key to her apartment and she wanted it back. According to Norwood, the defendant had gloves in his pocket.

Ramona Hayes, the manager of the apartment complex where the victim lived, testified that she received a telephone call from the victim on May 5th about damage to her apartment. Repairs were made, and the victim paid to have her locks replaced.

The defendant's father testified that the victim came to his house earlier in the day of the instant incident and the defendant gave her some money. He also claimed that after the defendant was released from jail, the victim and the defendant talked and she got money from him. She did not appear to be afraid of the defendant.

Barbara Chinn, the defendant's stepsister, testified that she saw the victim and the defendant together on two occasions, since he was released from jail. Ms. Chinn testified that defendant gave the victim money. According to Ms. Chinn, the victim did not appear to be afraid of the defendant.

On rebuttal, the victim testified that she has not gone to the defendant's house or talked with him since the instant incident. The victim's mother testified that the victim has not had any contact with the defendant since the incident. The victim's sister testified that the victim did not meet with the defendant nor did the defendant give the victim money. She claimed the defendant was “stalking” the victim. The victim had no contact with the defendant since they broke up and she was scared of the defendant.

The guilty verdict returned in this case indicates that, after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the state's witnesses and rejected that of the defense witnesses. This court will not assess the credibility of the witnesses or reweigh the evidence.

We reject the defendant's argument and find ample circumstantial evidence in this record that the defendant had specific intent to commit a felony when he entered the victim's apartment without authorization. The defendant pulled out gloves from his pocket and put them on before hitting, choking, and slapping the victim. According to the victim's testimony, the defendant told her he wanted to have sexual intercourse with her and beat her into submission. From the circumstances of the incident, the jury could have reasonably concluded, beyond a reasonable doubt, that the defendant entered the apartment with the intent to force the victim to have sex with him; in other words, to rape the victim. The jury could also have reasonably concluded, beyond a reasonable doubt, that the defendant entered the apartment, without authorization, and perpetrated a battery while in the apartment.

After a careful review of the entire record, we believe that a rational trier of fact, viewing all of the evidence, both direct and circumstantial, as favorable to the prosecution as any rational fact finder can, could have concluded beyond a reasonable doubt that the defendant attempted aggravated burglary. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant contends that the trial court erred in denying his motion for mistrial. Defendant asserts that the prosecutor made reference during closing argument to the defendant's failure to take the stand and testify.

In his brief to this court, the defendant notes that he did not testify at trial. Instead, he presented the testimony of his father and stepsister. Notwithstanding the presentation of defense witnesses, the defendant claims that no one other than himself and the victim could have testified as to what occurred during the instant incident. As defendant was the only person who could have rebutted the state's evidence, the prosecutor's statements constituted an impermissible indirect reference to defendant's failure to testify.

Louisiana Code of Criminal Procedure article 770(3) provides that the trial court “shall” declare a mistrial when the prosecutor “refers directly or indirectly to ․ [t]he failure of the defendant to testify in his own defense ․.” When no direct reference to the defendant's failure to testify has been made, a reviewing court should inquire into the “intended effect on the jury” to distinguish indirect references to the defendant's failure to testify, which are impermissible, from general statements that the prosecutor's case is unrebutted, which are generally permissible. State v. Johnson, 541 So.2d 818, 822 (La. 1989); see also State v. Fullilove, 389 So.2d 1282 (La. 1980). In order to mandate a mistrial under La. Code Crim. P. art. 770, the alleged indirect reference must be intended to draw the attention of the jury to the defendant's failure to testify or present evidence in his behalf. State v. Eames, 97-0767, p. 9 (La. App. 1st Cir. 5/15/98), 714 So.2d 210, 216-17, writ denied, 98-1640 (La. 11/6/98), 726 So.2d 922.

In cases where the prosecutor simply emphasized that the state's evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, the prosecutor's argument does not constitute an indirect reference to the defendant's failure to testify. See State v. Thornton, 94-1470, p. 11 (La. App. 1st Cir. 10/6/95),671 So.2d 481,488. On the other hand, where the defendant is the only witness who could have rebutted the state's evidence, a mistrial is mandated where the prosecutor refers to the testimony as uncontroverted. State v. Handley, 96-0631, p. 12 (La. App. 1st Cir. 12/20/96), 686 So.2d 149, 157, writ denied, 97-0189 (La. 6/13/97), 695 So.2d 986.

In his closing argument, defense counsel argued that the evidence showed that this case was basically a domestic dispute. He contended that the defendant did not intend to rape the victim, but only intended to talk her into having sex with him. Counsel admitted that the defendant might have slapped the victim, but he argued that the defendant was “not guilty of aggravated burglary or any felony period.” He further denied that the defendant intended to commit a theft.

On rebuttal, the prosecutor argued that the defendant's actions were not permitted merely because defendant previously had a relationship with the victim. The prosecutor reviewed some of the allegations made and the case weaknesses noted by defense counsel, but argued that the defense was putting forth a number of “red herrings.” The prosecutor then stated:

It's tricks on issues that are not the basic case. You have heard only one side of the case of what happened there that night. No defense has been offered. The defense stated quite clearly there is no justification and no defense, no excuse, cannot condone what he did that night because he did it. There is no way to fight it. There was nothing offered. You have heard one story, only her story. And it had been confirmed with the police officer.

At this point, the trial court asked counsel to approach the bench. The defense counsel made a motion for a mistrial based on the prosecutor's comment on the defendant's failure to testify. The prosecutor contended that he did not say anything about the defendant's lack of testimony. Defense counsel argued that the prosecutor stated that no defense had been offered. The prosecutor claimed that there were a number of other people who could have testified for the defendant, but they were not called. The trial court then commented:

No defense does not necessarily mean that he has to testify. You have put on witnesses and the witnesses that you put on did not go directly to the point of what happened that night. There were other witnesses there that night you might have been able to call. I guess my basic concern ․ is ․ when you say you only heard one side of the story. It seems to get a bit closer for me to commenting on the defendant's failure to testify in this matter which would be grounds for a mistrial. How do you answer that, Mr. Murray [the prosecutor]?

The prosecutor responded that one side of the story meant only that the prosecution's version of the events had been presented, but he was not commenting on the defendant's failure to testify. Thereafter, the trial court denied the defendant's motion for a mistrial, stating:

Well, I do agree with Mr. Murray [the prosecutor] that it is obvious that there were other witnesses there that night that could be called, because he did in fact call some witnesses that were there that night. Whether there were additional witnesses that you could have called I do not know because that is not before me. However, there is no indication that there were no other witnesses that could have been called. I do not believe after hearing the explanation that he was commenting on the defendant's failure to testify, which would have been grounds for a mistrial ․.

By emphasizing to the jury that they had only heard the victim's side of the story, and that no defense had been offered, the prosecutor, in violation of La. Code Crim. P. art. 770(3), made an indirect reference to the defendant's failure to testify. The defendant was the only witness who could have contradicted the victim's testimony as to what happened in her apartment. The victim, her young child, and the defendant were the only people in the apartment at the time of the incident. According to the victim, her child was in another room of the apartment at the time. Two witnesses testified for the defense; however, those witnesses were only able to offer information about the relationship between the victim and the defendant. Those two witnesses were not present and could not testify about the incident in the victim's apartment.

While the court and the prosecutor indicate that the defendant could have presented the testimony of other witnesses, there were no other witnesses to the occurrence inside the victim's apartment. Thus, the only person the prosecutor could have been referring to in closing arguments when he referenced that no defense had been offered was the defendant. Where the defendant is the only witness who could have rebutted the state's evidence, a reference to the testimony as uncontroverted focuses the jury's attention on the defendant's failure to testify and mandates a mistrial. See State v. Johnson, 541 So.2d at 822.

The state contends in its brief to this court, if the prosecutor's comments are determined to be impermissible, then any error that resulted was harmless beyond a reasonable doubt. We disagree. We cannot say that the prosecutor's improper reference to the defendant's failure to take the stand was harmless error. The evidence against the defendant primarily consisted of the testimony of the victim regarding what happened at her apartment. We can hardly conclude that the prosecutor's improper reference to the defendant's failure to testify and contradict the victim's testimony was “harmless beyond a reasonable doubt.” State v. Johnson, 541 So.2d at 823. Because the prosecutor's remarks improperly focused the jury's attention on the defendant's failure to testify, a mistrial is mandated. See La. Code Crim. P. art. 770(3).

The trial court's refusal to grant a mistrial after the prosecutor's improper reference to the defendant's failure to testify requires this court to reverse his conviction, vacate his sentence, and remand the case for a new trial.

CONVICTION REVERSED, SENTENCE VACATED, AND CASE REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

Criminal defendants have a constitutional right not to testify on their own behalf. U.S. Constitution, amend. V; La. Const. art. I, § 16. Louisiana Code of Criminal Procedure article 770(3) entitles a criminal defendant to move for a mistrial, which shall be granted, when a remark or comment refers directly or indirectly to the failure of the defendant to testify in his own defense.

Based on the constitutional and statutory protections, prosecutors must use extreme caution in commenting on a defendant's failure to testify.

In this matter, although admittedly a close call, I would defer to the trial judge who, after calling on the prosecutor to explain, felt that he was not commenting on the defendant's failure to testify. I would affirm the conviction.

FOOTNOTES

1.   In a separate but related appeal, the defendant appealed his sentence as a third felony habitual offender. See State v. Thomas, 99 KA 2147, also rendered this date.

2.   According to the victim's testimony, her child ran into her bedroom and was not harmed in the ordeal.

FITZSIMMONS, J.

Weimer, J. dissents with reasons.