James Barney Henson was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and was sentenced to serve six years at hard labor. Defendant designated six errors to be urged on appeal in his assignment of errors filed with the trial court. Since he has neither briefed nor argued Assignment of Error No. 4, we consider it to have been abandoned.
ASSIGNMENT OF ERROR NO. 5
Defendant contends that the trial judge erred in denying his motion for a mistrial based upon the reference of a state witness in his testimony on cross-examination to another crime allegedly committed by defendant.
At trial, the state called to the stand Larry Freeman whose camp was allegedly burglarized by defendant and another individual named L. J. Doiron. On cross-examination,
Immediately, defense counsel moved for a mistrial on the ground that the witness' statement was prejudicial and unresponsive to the question. The trial judge denied the motion, but directed the witness to be more responsive to defense questioning. At defendant's request, the trial judge admonished the jury to disregard the unresponsive portion of the witness' statement.
A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). However, Larry Freeman was not a "court official," and therefore article 770 does not apply. Rather, the applicable provision is La.Code Crim.P. art. 771. State v. Hutto, 349 So.2d 318 (La. 1977); State v. Hardy, 344 So.2d 1018 (La. 1977); State v. Jones, 332 So.2d 466 (La. 1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).
La.Code Crim.P. art. 771 provides in pertinent part:
In the instant case, the response was not elicited by the state but was given on cross-examination by defense counsel. There is no indication that the statement was deliberately uttered by the witness to prejudice defendant. We are satisfied that the admonition by the trial judge to the jury was sufficient to dispel any prejudice which might have been created and to assure defendant a fair trial. Hence, the trial judge did not err in denying defendant's motion for a mistrial.
ASSIGNMENT OF ERROR NO. 6
Defendant contends that the trial judge erred in denying his motion for a mistrial which was based on a statement made by the prosecutor in his closing argument that a defense witness, L. J. Doiron, had also been charged in this particular matter. After the allegedly improper statement was made, defendant objected to the remark on the ground that it constituted improper impeachment of the witness since no evidence had been presented at trial that Doiron had also been charged with the crime. Defendant's objection was sustained. Thereupon, defense counsel
Both Freeman and Hebert testified at trial that Doiron was with defendant at Freeman's camp on the day of the alleged burglary and was carrying a scabbard knife which belonged to Freeman when he and defendant were confronted as they exited the camp. Doiron testified at trial on behalf of defendant and admitted that he was with defendant on the day of the alleged burglary; however, he denied that they had burglarized Freeman's camp. On cross-examination, the state questioned Doiron as to his prior convictions in an attempt to impeach him in accordance with La.R.S. 15:495. The state could have questioned the witness as to his arrest or indictment for the same offense for which defendant was being tried to show his bias or interest in the case pursuant to La.R.S. 15:492.
Assignment of Error No. 6 is without merit.
ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3
In Assignment of Error No. 2, defendant contends the trial judge erred in denying his motion to appoint a sanity commission which motion was filed after conviction but prior to sentencing. Finding merit in this contention, we do not reach the merits of Assignments of Error Nos. 1 and 3 (denial of defendant's motion for new trial and in arrest of judgment)
Prior to argument at the hearing on defendant's motions for a new trial and in arrest of judgment, defense counsel filed a motion to appoint a sanity commission. In support of the motion, he presented an affidavit of Dr. Curtis A. Steele, a psychiatrist who examined defendant on three occasions after his conviction and who expressed the opinion that defendant was not presently able to understand the proceedings against him or to assist counsel in his defense, and an order signed by another district judge a week prior to the present hearing ordering the appointment of a sanity commission to examine defendant with reference to his mental capacity to proceed with respect to other criminal charges pending against him. The trial judge denied the motion concluding that there was no reasonable ground to doubt defendant's mental capacity to proceed based on his observation of defendant at trial and particularly during his testimony. However, it should be noted that the
Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. Code Crim.P. art. 641. Pursuant to La.Code Crim.P. art. 642:
The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceedings, even after conviction. State v. Luquette, 275 So.2d 396 (La. 1973); State v. Gunter, 208 La. 694, 23 So.2d 305 (1945); State v. Allen, 204 La. 513, 15 So.2d 870 (1943). When the issue is raised, the trial court is required to order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed. La. Code Crim.P. art. 643;
In the instant case, the affidavit of Dr. Steele which stated that defendant lacked the mental capacity to proceed was coupled with an order of another district judge ordering the appointment of a sanity commission to examine defendant's mental capacity to proceed on other pending criminal charges. This order had been signed only a week before the denial of defendant's motion for the appointment of a sanity commission in the present case. The affidavit of the psychiatrist and the court order clearly established reasonable ground to doubt defendant's mental capacity to proceed and, hence, the trial judge abused his discretion in denying defendant's motion. Accordingly, we must remand the case to the trial court for the appointment of a sanity commission to examine defendant with reference to his mental capacity to proceed.
Since we conclude that defendant was entitled to the appointment of a sanity commission, any further steps in the prosecution taken after the issue of defendant's mental capacity to proceed was raised by the filing of his motion must be vacated and set aside. La.Code Crim.P. art. 642. These steps include the hearing on defendant's motions for a new trial and in arrest of judgment, the denial of these motions, and the sentencing of defendant on the instant charge. Should the trial court determine in a contradictory hearing conducted after the examination of defendant by the sanity commission as required by La. Code Crim.P. art. 647 that defendant has the mental capacity to proceed, the criminal prosecution shall be resumed and the court may proceed to hear and consider the merits of defendant's motions for a new trial and in arrest of judgment and to sentence him in the event that the motions are denied. La.Code Crim.P. art. 648. Defendant is reserved the right to appeal any adverse ruling of the trial court on the issue of his mental capacity to proceed and/or his motions for a new trial and in arrest of judgment as well as any reviewable error in his sentence.
For the reasons assigned, the ruling of the trial judge denying defendant's application