NOT DESIGNATED FOR PUBLICATION * * * * * * *

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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA VERSUS DEXTER MONTGOMERY * * * * * * * * * * * NO KA-1539 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO , SECTION C Honorable Benedict J. Willard, Judge * * * * * * Judge Patricia Rivet Murray * * * * * * (Court composed of Chief Judge Joan Bernard Armstrong, Judge Patricia Rivet Murray, Judge Michael E. Kirby) Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney 619 South White Street New Orleans, LA COUNSEL FOR STATE OF LOUISIANA Edward R. Greenlee LOUISIANA APPELLATE PROJECT P.O. Box 1036 LaPlace, LA COUNSEL FOR DEFENDANT/APPELLANT AFFIRMED

2 The defendant, Dexter Montgomery, appeals his conviction of four counts of attempted armed robbery and his sentence of twenty years at hard labor on each count. For the reasons that follow, we affirm the defendant s conviction and sentence. STATEMENT OF THE CASE On July 2, 2009, Dexter Montgomery was charged by bill of information with four counts of attempted armed robbery in violation of La. R.S. 14:(27)64. He pled not guilty to all four counts. After a hearing on September 9, 2009, the trial court found probable cause and denied the defendant s motion to suppress the identification. The defendant then filed a motion in limine to exclude prejudicial and irrelevant testimony, and a motion to reopen the hearing on his previously considered motions to suppress the identification and the evidence. Following a hearing on April 20, 2010, the trial court granted defendant s motion in limine in part and denied his motions to suppress. The defendant was tried by jury and found guilty as charged on all four counts on April 26, On June 2, 2010, the defendant filed motions for a presentence investigation, new trial and post-verdict judgment of acquittal, which 1

3 were denied. On June 4, 2010, the defendant was sentenced to twenty years at hard labor, with credit for time served, on each count, with the sentences to run concurrently. This appeal followed. STATEMENT OF FACT The four alleged victims of the defendant s robbery attempt testified at the trial. Julio Cesar Perdomo testified that he was working at Furnishing Our Neighbors, a non-profit furniture store located on South Solomon Street, on April 28, 2009, with his wife, Saida Wohleb, and Marvin Mejia. A friend, Lidia Iscoa, had stopped by to see them. At approximately 3:00 p.m., a black man entered the store with a gun and demanded money. The man was dark-skinned, slim and had a slight beard. He wore a white shirt, black pants and a cap. The man patted Perdomo down to see if he had any money. The man then took Lidia by the arm and went into the office where the cash register was located. The man found Saida s purse in a desk drawer and took it. He then ran out the front door of the store and towards an empty lot behind the store. Mr. Perdomo stated that he had spoken with the police and had provided a description of the perpetrator. He had identified the defendant in a photographic lineup as the perpetrator, and he also identified the defendant at trial. Marvin Mejia stated he was employed at Furnishing Our Neighbors in April of He was working at the furniture store on April 28, 2009, when the robbery occurred. Mr. Mejia testified that when he walked out of the bathroom, he saw a black male pointing a gun at two of his co-workers, Saida Wohleb and Cesar Perdomo, and a friend, Lidia Iscoa. The man came towards him and demanded 2

4 money. He told the man that he did not have any money. The man then patted him down and checked his pockets. The man pushed him towards his friends and then took Lidia by the arm into the office. Mr. Mejia could see the man going through the desk in the office. The man found a white purse in a desk drawer. He took the purse and ran out of the store. The man was wearing a black cap, a white shirt and black pants. Mr. Mejia stated that he had seen the man once before in a clothing store where Mr. Mejia had worked. The man was with two women who were acting inappropriately. Mr. Mejia testified that he did not speak with the police when they arrived on the scene because he could not speak English, and other people had told the officers what had happened. However, Mr. Mejia later spoke with Detective Caillouet and made an identification of the defendant as the perpetrator in a photographic lineup. He also identified the defendant at trial. Lidia Iscoa testified that she was visiting her friends, who worked at Furnishing Our Neighbors, on April 28, 2009, around 3:00 p.m. She was talking to Saida Wohleb, with her back to the door, when she felt something in the back of her head. She turned around and saw a black man with a gun to her head. The man told everyone not to move and demanded money. Marvin Mejia walked out the bathroom at that time, and the man searched Marvin for money. The man grabbed her by the arm and took her into the office. He pointed the gun at her head and demanded money. She told him that she could not open the cash register because she did not work at the store and did not know how to the open the register. The man then searched through the desk and found a purse in a desk drawer. He grabbed the purse and ran out of the store. 3

5 Ms. Iscoa stated that she met with Detective Caillouet and told the officer what had happened. She provided a description of the perpetrator. She stated the man wore black pants, a white tee shirt and a black hat. She identified the defendant as the perpetrator in a photographic lineup and at trial. Saida Wohleb testified she was working at Furnishing Our Neighbors on April 28, 2009, when a black man came into the store with a gun and demanded money. The man took Lidia Iscoa by the arm and pulled her into the office where the safe and cash register were located. The man told Lidia to open the safe and cash register. Lidia explained that she could not do so because she did not work at the store. The man searched the desk and found Ms. Wohleb s purse in a desk drawer. He took the purse and ran out of the store. The man left the store and ran towards an empty lot near the store. He ran behind Ms. Wohleb s house, which was located around the corner from the store. She described the man as being slim and wearing a white shirt, black pants and a cap. Ms. Wohleb identified the defendant at trial as the perpetrator. Ms. Wohleb stated that she had seen the defendant in her neighborhood a few days after the robbery. He was across the street from her house. He passed her house, then walked back. He also asked her for the time and how long she had been living in the house. The defendant commented that she spoke English very well. Ms. Wohleb recognized the defendant at that point, and later informed the detective of her encounter with the defendant. Ms. Wohleb testified that she did not sign the identification lineups because she had children and was fearful. An additional fact witness, Justin Baugh, testified that on April 28, 2009, he was volunteering at Furnishing Our Neighbors with Kelly Hammett and Mandy Thompson, the owner of the store. They were in another part of the store when the 4

6 robbery took place. He looked around the corner of the building because he heard someone yelling. He saw someone holding a gun and frisking one of the workers. The suspect had his back to the witness. Mr. Baugh said he told Kelly and Mandy to run, and Mandy called the police. Shortly thereafter, he saw the workers coming out the store, crying and screaming. He did not see which way the suspect ran. Two police officers also testified. New Orleans Police Officer Denise Smothers said she had responded to a call of an armed robbery at Furnishing Our Neighbors, a furniture store located at 731 South Solomon Street, on April 28, She testified that she had spoken with two victims when she had arrived on the scene, Saida Wohleb and Lidia Iscoa, who had informed her of the incident. Officer Smothers stated that she had then notified the crime lab to come out and process the scene, which was done. Detective Roger Caillouet testified that he was the lead investigator on the case. He arrived at the scene after Officer Smothers. Detective Caillouet testified that he spoke with Ms. Wohleb, Ms. Iscoa, and three witnesses who were outside the store when the incident occurred. Detective Caillouet testified that the three witnesses could not provide a description of the perpetrator. Ms. Wohleb, however, described the perpetrator as a dark-skinned black male, approximately in height, wearing a black hat, dirty white tee shirt and black pants. Detective Caillouet testified that the initial call about the incident had indicated that a red sports utility vehicle might have been involved. However, it was later determined that this vehicle was not involved in the robbery because a surveillance tape from an adjoining business revealed an older female entering the vehicle and driving off slowly. After speaking with the victims, the detective 5

7 canvassed the area. The detective learned that the perpetrator had dropped some mail, which had been in Ms. Wohleb s purse, near houses behind the business. Detective Caillouet put together a photographic lineup, which included a potential suspect who lived in the area and who had previously committed robberies on Hispanic people in the neighborhood. The detective showed the photographic lineup to the victims, but they were unable to identify anyone. After a similar robbery occurred between May 1 st and May 5th, the detective created another photographic lineup, which included the suspect from the May 1 st robbery. The victims did not identify anyone in that lineup. At the meeting with the victims for the second lineup, Ms. Wohleb informed the detective that the perpetrator from the robbery had approached her in front of her home. At that time, she had noticed that the perpetrator had a scar or mark under his left eye. Detective Caillouet then put together a third lineup, which included the defendant. The detective stated that he knew of the defendant and remembered that the defendant had a mark or scar under his left eye. The detective then presented this lineup to the victims. Three of the four victims identified the defendant as the perpetrator. After obtaining the identifications, Detective Caillouet obtained an arrest warrant for the defendant. Witnesses for the defense included Alvera Smith, the defendant s sister-inlaw. She testified that she is married to the defendant s brother, Dwayne, and has known the defendant since Ms. Smith testified that in April of 2009, the defendant was living with her, her husband and her children on Gravier Street. She stated that the defendant was at home all day on April 28, 2009, because he was helping their neighbor, Ms. Kawanda, clean her house, and that he later played cards with her and her neighbor. The witness stated that she could specifically 6

8 recall that date because Ms. Kawanda had gone on vacation and had come home the day before to find that the electricity to her house had been cut off. Simone Thomas lived across the street from Alvera Smith in April Ms. Thomas testified that she knew the defendant because he lived with Ms. Smith and her husband, the defendant s brother, on Gravier Street. Ms. Thomas stated that she saw the defendant on April 28 th. He was helping her neighbor, Ms. Kawanda, clean her house. Ms. Thomas spent the day playing cards with Alvera Smith on Ms. Smith s front porch. Ms. Thomas testified that the defendant played cards with them after he had finished helping Ms. Kawanda. They played cards until dusk. Dwayne Montgomery, the defendant s brother, stated that his brother lived with him and his family on Gravier Street in April, He testified that the defendant did not have his own bedroom but slept in the front room. Mr. Montgomery could not state where the defendant was on April 28 th because Mr. Montgomery was at work. The witness also testified that his brother liked to drink and did not have a job, car or bicycle. He would give the defendant five to ten dollars on occasion. Brittany Randall testified that her mother is Kawanda Dampier and that they lived next door to Alvera Smith in April She stated that she, her mother, her grandfather and her mother s boyfriend took a cruise to Mexico in April They returned from the cruise on April 27 th and found that the electricity in the house was off. Ms. Randall stated that she saw the defendant all day on April 28 th because he was helping her mother clean their house. Afterwards, her mother and the defendant, along with other neighbors, played cards on the porch. 7

9 ISSUES The defendant assigns four errors on appeal: 1. The trial court erred when it denied the defense s motion for new trial based on two erroneous rulings and a comment by the prosecutor to an item not in evidence. 2. The trial court erred when it denied a motion for mistrial because of prejudicial hearsay about an alleged double murder which had been ruled inadmissible. 3. The trial court erred when it denied defendant s right to present a defense by being prevented from calling a witness. 4. The trial court erred when it failed to inform the defendant of his delays for filing post-conviction relief. ERRORS PATENT AND ASSIGNMENT OF ERROR NUMBER 4 A review of the record for errors patent reveals two. The trial court imposed illegally lenient sentences and failed to advise the defendant of the delays for filing post-conviction relief pursuant to La.C.Cr.P. art La. R.S. 14:64(B) states that a sentence imposed for armed robbery must be served without benefit of probation, parole or suspension of sentence. The attempt statute, La. R.S. 14:27(D)(3), provides that a person convicted of an attempt is to be fined or imprisoned in the manner as for the offense attempted. In the first patent error, the trial court failed to state that the defendant s sentences were to be served without benefit of probation, parole or suspension of sentence. Nevertheless, paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. State v. Williams, , p.10 (La. 11/28/01), 800 So.2d 790, 799. Hence, this Court need take 8

10 no action to correct the trial court s failure to specify that the defendant s sentences be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. La. R.S. 15:301.1(A). With regard to the second patent error, we note that the language of La. C.Cr.P. article 930.8, which requires the trial court to inform the defendant of the delays for filing post-conviction relief, is merely precatory and does not bestow an enforceable right upon an individual defendant. State ex rel. Glover v. State, , , , p. 21 (La. 9/5/95), 660 So.2d 1189, 1201; State v. Handy, , p. 5 (La. App. 4 Cir. 1/24/01), 779 So.2d 103, 105. However, in the interest of judicial economy, this Court hereby notifies the defendant that La.C.Cr.P. art generally requires that applications for post-conviction relief be filed within two years of the finality of a conviction. See Handy; State v. Adams, , p.28 (La. App. 4 Cir. 6/29/05), 909 So.2d 5, 22. ASSIGNMENT OF ERROR NUMBER 1 The defendant contends that the trial court erred when it denied his motion for new trial. He argues that he is entitled to a new trial on the basis of two alleged erroneous rulings, i.e., the court s denial of his motion for mistrial based Ms. Wohleb s reference to another crime, and the court s ruling disqualifying a defense witness from testifying based upon an alleged violation of the sequestration order. The defendant also argues the trial court should have granted him a new trial due to an improper comment during closing argument by the prosecutor to an item not in evidence to personally vouch for the credibility of a witness. As the defendant repeats his argument concerning the first two allegedly erroneous rulings in assignments of error two and three, our discussion of this 9

11 assignment considers only the denial of the motion for new trial with regard to the alleged improper comment by the prosecutor during closing argument. La. C.Cr.P. Art. 851 provides in pertinent part: The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever: * * * * (2) The court s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error; In order to find an error harmless, an appellate court must conclude that the error was harmless beyond a reasonable doubt. State v. Allen, , p.38 (La. 6/29/05), 913 So.2d 788. In the present case, the defendant argues that he is entitled to a new trial because of the statement the prosecutor made during closing arguments about the surveillance tape from the adjoining property. Defense counsel, in his closing argument, discussed the fact that a red SUV was initially thought to be involved in the robbery and argued that the police may not have sufficiently investigated whether the vehicle was used in the robbery. In response, the prosecutor reiterated Detective Calliouet s testimony summarizing the content of the surveillance video, which was not shown to the jury. The prosecutor then made statement, I ve seen the video. He testified it was a woman getting into the truck. Defense counsel objected, but there was no response from the trial court in regards to the objection. The general rule concerning the scope of closing arguments is that they are confined to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." La.C.Cr. P. art Particularly unwarranted are comments by the prosecutor 10

12 referring to matters allegedly within his personal knowledge, but not in evidence. State v. Kaufman, 304 So.2d 300, 307 (La. 1974). However, not every remark of this type will warrant reversal. C.Cr.P. art If the prosecutor's argument is expressly or impliedly based upon the evidence, then no error is committed, and statements in closing arguments do not go outside of the evidence if the inference drawn from the evidence is not implausible. State v. Lockett, 332 So.2d 443, 447 (La. 1976). Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. See State v. Martin, 539 So.2d 1235, 1240 (La. 1989). Further, the trial judge has broad discretion in controlling the scope of closing arguments. State v. Prestridge, 399 So.2d 564, 580 (La. 1981). And, even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless "thoroughly convinced" that the argument influenced the jury and contributed to the verdict. See State v. Martin, , p. 17 (La.10/17/94), 645 So.2d 190, 200; State v. Jarman, 445 So.2d 1184, 1188 (La. 1984); State v. Dupre, 408 So.2d 1229, 1234 (La. 1982). Upon review, the record does not demonstrate that the prosecutor s comment contributed to the jury s verdict. The prosecutor was responding to the argument made by defense counsel. See La. C.Cr.P. art Although the prosecutor mentioned that he had seen the video, he did not discuss what he had seen on it; rather, he summarized the detective s testimony about the surveillance video. Further, the trial court s error in not sustaining the objection was harmless and does not merit the granting of a new trial. The four victims positively identified the defendant as the person who robbed them. All four victims testified that they 11

13 clearly saw the defendant, who robbed them in broad daylight. The prosecutor s argument did not contribute to the jury s verdict. We therefore reject this assignment of error. ASSIGNMENT OF ERROR NUMBER 2 The defendant also argues that the trial court erred when it denied his motion for mistrial based upon the statements made by Ms. Wohleb. During the preliminary and suppression hearings, Ms. Wohleb had testified that she had been afraid to identify the defendant in the photographic lineups shown to her because she had children and she had been told that the defendant had killed two elderly people. The defendant filed a motion in limine to prohibit any testimony at trial with regard to the alleged double murder. The trial court granted the motion in limine in regards to such testimony. At trial, in response to the prosecutor s question as to why she did not identify the defendant in the photographic lineups, Ms. Wohleb stated: Because I have two kids, and he was in the news and the newspapers and television. And then, I think he just killed two old people. The defense counsel made an objection, which the trial court sustained, and the court then admonished the jury, stating, We re here for a robbery, not for a killing. Only the evidence in this case. All right? There s no evidence of any killing regarding this accused, so please disregard that last statement. The defendant thereafter requested a mistrial, which was denied by the trial court. La.C.Cr.P. art. 770(2) provides, in pertinent part: Upon motion of a defendant, a mistrial shall be ordered 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: * * * * * (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. 12

14 The witness in question was not among the listed group of persons under this article whose other crimes remarks will mandate a mistrial. Thus, the issue is governed by La.C.Cr.P. art. 771, which provides, in pertinent part: In the following cases, 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: * * * * * (2) 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. In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. Whether to grant a mistrial under La.C.Cr.P. art. 771 is within the discretion of the trial court; a mistrial is appropriate in this situation only when the prejudicial remarks of the witness have made it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982); State v. Allen, , p. 9 (La. App. 4 Cir. 9/15/95), 661 So.2d 1078, Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. Id. The determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. Banks, , p. 2 (La. 4/18/97), 692 So.2d 1051, A trial court's ruling on whether or not to grant a mistrial because of comments referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Nicholson, , p. 13 (La. App. 4 Cir. 11/26/97), 703 So.2d 173, 180; State v. Manuel, , , p. 4 (La. App. 4 Cir. 11/30/94), 646 So.2d 489,

15 Despite the granting of the defendant s motion in limine, the witness made a statement regarding the alleged double murder. However, there is no evidence to suggest that the State prompted the witness response. The prosecutor simply asked Ms. Wohleb why she did not sign the photographic lineups. Her failure to sign was an issue that the prosecution needed to address in light of the fact that the other three victims had positively identified the defendant in the lineups. If Ms. Wohleb had not explained her reasons for refusing to sign, the jury could have possibly inferred that Ms. Wohleb had been unable to recognize anyone in the lineups as the perpetrator. Therefore the first part of Ms. Wohleb s answer was responsive to the question. With regard to her additional comments, the trial court sustained the objection and admonished the jury that they were to consider only evidence concerning the robberies, and that there was no evidence that the defendant had been accused of murder. This admonition was sufficient to insure the defendant a fair trial. The trial court did not abuse its discretion in denying the motion for mistrial. We therefore reject this assignment of error. ASSIGNMENT OF ERROR NUMBER 3 In his third assignment, the defendant contends that the trial court erred when it disqualified one of his witnesses on the basis that she had been in the courtroom during the trial. The defendant suggests that there was no sequestration order in place. A review of the appellate record is devoid of any evidence of a sequestration order. There is also no evidence in the docket master, any of the minute entries, or the transcript that either of the parties requested sequestration or that the trial court issued a sequestration order on its own motion. 14

16 In order to demonstrate his entitlement to a new trial based upon this error, the defendant must show that the ruling was prejudicial error. La. C.Cr. P. article 851. However, the defendant has failed to meet his burden of proving that he was prejudiced by the trial court s decision because he did not proffer the testimony of the witness in question. If the witness was going to provide the defendant with an alibi, for instance, that testimony would have been cumulative in light of the other alibi witnesses who did testify. We therefore find the defendant is not entitled to a new trial on the basis that the trial court refused to allow this witness to testify, and we reject this assignment of error. In summary, as the defendant has not shown that any of the errors alleged were prejudicial, we find that the trial court did not err by denying the defendant s motion for new trial. CONCLUSION For the reasons stated, the defendant s conviction and sentence are affirmed. AFFIRMED 15