391 So. 2d 1145

STATE of Louisiana v. Patrick DEVILLE.

No. 67635.

Supreme Court of Louisiana.

Nov. 10, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.

Edward Larvadain, Jr., Larvadain & Scott, Alexandria, Paul C. Tate, Tate, Tate & Tate, Mamou, for defendant-appellant.

WATSON, Justice.

Defendant, Patrick Deville, was convicted as a principal by a unanimous six person jury of two counts of attempted simple burglary, LSA-R.S. 14:62, and one count of attempted theft of $490, LSA-R.S. 14:67. He was sentenced to two concurrent terms of six years at hard labor for the burglary attempts and one consecutive year at hard labor for the attempted theft.1 Defendant has appealed, assigning eight errors in the trial court. The convictions must be reversed on the basis of assignment of error number six: the trial court erred in allowing evidence of defendant’s inadmissible prior burglary conviction and denying a mistrial. LSA-C.Cr.P. art. 770. The other assignments of error will not be considered.

On the night of July 16, 1979, Jimmy and Ricky Vidrine broke into two bars in Ville Platte. They stole approximately $480 and two cartons of cigarettes valued at $10. They were arrested the following day and gave written statements implicating De-ville. Deville allegedly told the Vidrines how to gain entry into the two bars and each gave him $75 after the burglaries.

On cross-examination, the District Attorney asked defense witness Barry McDaniel: “Do you know whether or not he [Patrick Deville] has been convicted of a burglary?” (Tr. 267). Despite objection by defense counsel, the trial court allowed the question and denied a mistrial. The following colloquy took place:

“Q. Now will you answer my question sir. Do you remember it?
*1146“A. No.
“Q. Do you know that Patrick Deville was convicted of burglary in Rap-ides Parish?
“A. Yeah.
“Q. You know that?
“A. Unhuh.
“Q. And you know he is on probation?
“A. Yeah.
“Q. You know he was given, what 3 years?
“A. I don’t know.
“Q. So you know he was convicted of a burglary, and you know he was given a suspended sentence and you know he is on probation right?
“A. Yeah.” (Tr., pp. 268-269).

Defendant Deville had not taken the stand and had not been questioned about prior convictions at the time these questions were posed. His character was not at issue. LSA-R.S. 15:481.2 The prior conviction was not admissible for impeachment of his credibility. LSA-R.S. 15:495.3 Evidence of the prior crime was not used to show guilty knowledge and intent. LSA-R.S. 15:445,4 15:446;5 State v. Prieur, 277 So.2d 126 (La., 1973). Its only purpose was to depict De-ville as a burglar. State v. Ledet, 345 So.2d 474 (La., 1977).

The evidence of Deville’s prior burglary conviction was inadmissible and highly prejudicial. State v. Morris, 362 So.2d 1379 (La., 1978); State v. Vernon, 385 So.2d 200 (La., 1980). Even though Deville subsequently took the stand, this did not cure the error. State v. Green, 315 So.2d 763 (La., 1975). The trial court erred in allowing the evidence and denying a mistrial. LSA-C. Cr.P. art. 770; State v. Fowlkes, 352 So.2d 208 (La., 1977); State v. Harrison, 367 So.2d 1 (La., 1979).

For the foregoing reasons, the convictions are reversed; the sentences are vacated; and the matter is remanded for a new trial.

REVERSED AND REMANDED.

State v. Deville
391 So. 2d 1145

Case Details

Name
State v. Deville
Decision Date
Nov 10, 1980
Citations

391 So. 2d 1145

Jurisdiction
Louisiana

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!