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STATE OF LOUISIANA NO. 07-KA-123
VERSUS FIFTH CIRCUIT
FELTON D. LAGARDE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 04-7083, DIVISION "G"
HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING

COURT OF APPEAL, MAY 29, 2007 FIFTH CIRCUIT
MAY 2 92007
THOMAS F DALEY ,
Panel composed of Judges Thomas F. Daley,
Walter J. Rothschild, and Greg G. Guidry

PAUL D. CONNICK, JR.,
DISTRICT ATTORNEY
TERRY M. BOUDREAUX,
JULIET CLARK,
DONALD ROWAN,
ASSISTANT DISTRICT ATTORNEYS

Twenty-Fourth Judicial District
Parish of Jefferson
200 Derbigny Street
Gretna, Louisiana 70053
COUNSEL FOR PLAINTIFF/APPELLEE

GWENDOLYN K. BROWN
LOUlSIANA APPELLATE PROJECT
Post Office Box 64962
Baton Rouge, Louisiana 70896-4962
COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED; REMANDED WITH INSTRUCTIONS
Defendant, Felton D. Lagarde, appeals his conviction for armed robbery, a violation of LSA-R.S. 14:64. On appeal, he assigns five errors ofthe trial court:
1.
The trial court erred by denying the Motion for Mistrial.

2.
The trial court erred by denying the Motion for New Trial.

3.
The trial court erred by imposing an excessive sentence.

4.
The trial court erred by failing to comply with the sentencing mandates of La. C.Cr.P. art. 894.1.

5.
Defendant-appellant was denied the effective assistance of counsel as a result of his counsel's failure to file a motion to reconsider sentence to preserve for appellate review his right to object, on specific grounds, to the excessiveness of his sentence.


After careful consideration of the law and evidence, we affirm defendant's
conviction, and remand for further proceedings.
FACTS On August 3, 2004, at approximately 11:00 p.m., the victim, Tina Sage, left her employment at Wynhoven nursing home. She drove her Toyota 4-Runner to
pick up her son, who was visiting friends in the Beachgrove neighborhood in

Westwego, where they used to live. She looked for her son at Brother's, which is a food market near the Beachgrove neighborhood and which is where he normally waited for her.
Because her son was not at Brother's, Ms. Sage drove into the neighborhood. Ms. Sage saw her son at the back ofthe parking lot. She also saw a man standing on the sidewalk. Ms. Sage's son put some clothing and other belongings into the vehicle, when the man who had been on the sidewalk asked if Ms. Sage would give him a ride out of the neighborhood. When Ms. Sage told him that her boyfriend was "up front," he pushed her son out of the vehicle and jumped inside.' The man put a gun to her head and told her to get out. Ms. Sage said she heard a "click" and saw something silver in her face. She got out ofthe car and ran toward a neighbor's house and called the police. Ms. Sage testified that someone called her cell phone and told her to tell the police that the "boy's name was Felton Lagarde, and he's probably heading to the St. Bernard Project."
At trial, Detective Russo of the Jefferson Parish Sheriff's Department identified State's Exhibit 22 as the application for a search warrant of the defendant's property at the Jefferson Parish Correctional Center. The search warrant application contains background information leading up to the defendant's arrest by Jefferson Parish authorities.
The application indicates that, on August 4, 2004 at 9:00 a.m., Detective Decker of the Jefferson Parish Robbery Division discovered through a computer check that the defendant was arrested at 1:25 a.m. on August 4, 2004 in the 1000 block of St. Ann Street in New Orleans. Detectives Russo and Decker went to New Orleans at 11:00 a.m. to search for the victim's vehicle, which they found in the 800 block of Rampart Street. The vehicle was towed to the Investigations
' It appears from the context of Ms. Sage's testimony that she meant in the front of the neighborhood.
Bureau for processing. Other officers then went to pick the defendant up from New Orleans, where, in his personal property, they discovered a set of keys containing a Toyota key. It was later determined that the key belonged to the victim's vehicle. At trial, Ms. Sage identified State's Exhibit 2 as the keys that were in the 4-Runner when it was taken.
Detective Russo testified that, during the inventory of Ms. Sage's vehicle, the police found a .25 caliber Raven Arms handgun and a gray bandanna under the front passenger seat. The police also discovered a pair ofblack jeans in the back of the vehicle.
When Ms. Sage obtained her vehicle later that week, she discovered that her son's T-shirt and shorts were missing. She also noticed the clothing in the back seat, but both of her sons told her it was not theirs. She also found a crack pipe, or an "iron thing" with several lighters in her car. She placed everything inside of a bag and brought it to the police station. Ms. Sage described her son's missing clothing to the police. Detective Russo recalled that the defendant had been wearing a similar outfit at the time he was booked in New Orleans.
On September 22, 2004, the police executed a search warrant on the defendant's possessions at the Jefferson Parish Correctional Center and found some clothing, which Ms. Sage identified at trial as the clothing that her son was placing inside her car immediately before the armed man jumped inside.
Ms. Sage testified that she did not get a good look at the armed man and could not identify anyone from a photo lineup. She also was unable to make a positive identification of the defendant at trial.
On August 4, 2004, the defendant made a tape-recorded statement to Sergeant Larry Dyess of the Jefferson Parish Sheriff's Office after being advised of and waiving his rights.2 In his statement, the defendant said that he and a white female had been smoking crack in the crack house in an abandoned area in the back of Beachgrove.3 The defendant said that he and the woman left the house at the same time, and he asked her for a ride. The woman refused and said something about her husband. The defendant said her refusal made him feel frustrated. The defendant entered the back seat and grabbed the keys and he "tussled" with her after he entered the car. When the woman jumped out, the defendant sat in the driver's seat and drove away. The defendant said he had a gun in his pocket, but he denied pointing the gun at the woman. The defendant said he drove across the river and went downtown.
Sergeant Dyess testified he believed the defendant minimized his involvement in the crime, but stated that the police believed the defendant was the perpetrator because the defendant supplied facts that only the perpetrator would know.
ASSIGNMENTS OF ERROR NUMBER ONE AND TWO
In these Assignments of Error, the defendant contends that the trial judge should have granted his Motion for a Mistrial and thereafter, his Motion for a New Trial because the State introduced inadmissible evidence of other crimes. Specifically, the defendant contends that a mistrial was warranted when the jury viewed an edited version of the defendant's statement that failed to omit a reference to the defendant's arrest for second degree murder. The defendant filed a Motion for a New Trial on the same basis. The State responds that the defendant failed to preserve this claim for appellate review because he viewed the statement
2 At a bench conference, the statement was redacted to omit references to the defendant's arrest for second
degree murder. However, one reference was overlooked and the defendant moved for a mistrial. This is the subject
ofthe first two assignments.
'The police report reflects that the victim was a white female.
before the jury saw it and made no objection. The State further responds that the

trial judge did not abuse his discretion in denying either motion.
Immediately before questioning Sergeant Dyess about the defendant's statement, the prosecutor initiated a bench conference that was not transcribed. However, it is clear from the record that the purpose of the bench conference was to remove references in the statement to the defendant's arrest for second degree murder. After the bench conference, the State moved to introduce the complete transcribed statement (S-25) and the tape-recorded statement. The defendant stated he had no objection, other than his objection at the suppression hearing. The State then moved to introduce the edited transcribed statement (S-25A) for "record purposes," to which the defendant voiced no objection.
Thereafter, the court informed the jury that there were some "things" in the audio tape and the transcribed statement that had been removed because they were inadmissible. The prosecutor then distributed copies of the edited statement to the jury and began to play the tape.4
When the prosecutor, Mr. Rowan, realized that there was a reference to the second degree murder arrest that had not been deleted, he said to turn off the tape.6 The prosecutor pointed out the reference to the defendant's attorney, Mr. Benz, who then moved for a mistrial. The attorneys approached the bench, where there was further discussion:
MR. ROWAN:
I listened to it, I just didn't catch it. I took everything
else out. That's what happens when you're doing it by
yourself.
What do you want to do, Judge?

4The record does not reflect how long the tape played before the prosecutor said to turn it off. Rather, the record reflects, "THE TAPE WAS STARTED AND TURNED OFF."
"The transcript of the redacted statement reflects that Sergeant Dyess asked the defendant if he had been advised that he was "under arrest for Second Degree Homicide and that [he was] under investigation in reference to Armed Robbery?"
THE COURT: I don't think I have any choice. MR. BENZ: I apologize, I should have caught it, but I didn't. THE COURT: If it wouldn't have been -if it wasn't in this, I think it would be all right, because I didn't hear what he said. Well, it's in here, I'm going to have to grant his motion. MR. BENZ: I apologize, Donnie, I mean, I should have caught it. MR. ROWAN: That's why I wanted to take the jury out so we could go over it. I should have insisted on that. But, I didn't catch it.
The jury was removed from the courtroom while the attorneys argued the mistrial motion. The defendant stated that he had filed a motion to have references to second degree murder removed from the statement, but admitted that one reference was overlooked by the defense and the State as follows:
MR. BENZ: Unfortunately, both the tape and the written transcript, both myself and the . . . Assistant District Attorney missed the fact that one, two three four paragraphs down on the statement it says, .Okay and did I advise you [that] you were under arrest for second degree homicide? It wasn't clear on the tape, but the jury has seen the statement, they have been given a copy of the statement, and I'm sure as the tape was played, they followed along and read, and they had to
read the fact that he was arrested for second degree homicide in this matter, and I'd ask for a mistrial. The prosecutor responded that it was unknown whether or not the jury read
along and that any error would be harmless in any event because of the judge's prior instruction to the jury. The prosecutor pointed out that he had asked if there were any problems with the evidence before it was introduced and the defendant voiced no objection. The trial judge stated that he did not hear the reference in the
audio tape and said he did not know how far along the jury had read. Thereafter,

the prosecutor reiterated that the defendant had not voiced any objection when they
had approached the bench prior to playing the tape and the defendant agreed:
MR. ROWAN:
I would still, if the Court would admonish them, I believe that would be enough, because as I said, prior to playing the tape I asked to approach to see if there was [sic] any problems with anything, and there wasn't any, so.
MR. BENZ:
Well, that's --what the D.A. says is true, andI read through the statement and my concern was more that it stopped at page 4, or page 5, back here, and I didn't see that, so you know, I missed it. But, you know, I don't think an admonishment will work, will do, I mean, they're going to know that he's arrested for second degree homicide, and the fact that an admonishment of them putting that out of their
head, I don't think is going to happen.
(Emphasis added).
Thereafter, the trial judge denied the mistrial motion and admonished the
jury as follows:
THE COURT:
Ladies and gentlemen, I don't know how far you got to reading along with that statement, but there was something in there that doesn't pertain to this case. If you read that part of it, you are to completely disregard anything that doesn't involve this charge of armed robbery that we're trying today. All right?
All right. Get to your right spot.
The tape was played, but no transcripts were handed out to the jury.6
The State contends that the defendant is not entitled to review of these
assignments because he voiced no objection after reviewing the statement at the
bench. To preserve the right to appellate review of an alleged trial court error, a
6For purposes of accuracy, it is noted that there are several aspects of the defendant's brief that are not supported by the record. The defendant asserts that the judge had made a pre-trial ruling to preclude any references to the second degree murder charge. However, the record contains no pre-trial motion or ruling on this matter. The defendant also asserts that he objected as soon as the portion of the tape containing the inadmissible reference was played. However, the record reflects that the prosecutor stopped the tape, brought the matter to the defendant's
attention, and then the defendant moved for a mistrial. Finally, the defendant asserts that the State apologized for the error, when the record reflects that it was actually the defendant's attorney who apologized to the prosecutor for overlooking the reference.
party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection.' The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. This prevents the defendant from gambling for a favorable verdict at trial and then later utilizing appellate review to correct errors that might easily have been corrected by the trial judge."
Although the defendant read the redacted statement and voiced no objection before it was played or shown to the jury, he moved for a mistrial as soon as the issue was brought to his attention. Accordingly, the question of whether or not the trial judge erred in denying the mistrial is properly before this Court on appeal.
On appeal, the defendant contends that the trial judge was required to grant a mistrial under Article 770. The State contends that the trial judge had the discretion to deny a mistrial under Article 771 because the remark was not made in the hearing of the jury. Rather, according to the State, the issue was whether the jury read, not heard, the reference to the defendant's arrest. Since Article 770 pertains to remarks made within the hearing of the jury, the State contends Article 770 is inapplicable.
A direct or indirect reference to a crime committed or alleged to have been committed by a defendant, as to which evidence would be inadmissible and made within the hearing of the jury by the judge, district attorney, or a court official, duringtrialorinargumentrequires amistrial onmotionofthedefendant.'
since aA tneesnudnolt o i eere7d a ceoSu ofafcpiayl. wmevney,by a staptee witness
7See LSA-C.Cr.P. art. 84l(A); State v. Gaal. 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La. 10/3/03), 855 So.2d 294. "State v. Williams, 04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied. 05-0081 (La. 4/22/05), 889 So.2d 559. "See, LSA-C.Cr.P. Art. 770(2); State v. McGuffev, 486 So.2d 1101, l107 (La. App. 2 Cir, 1986).
reference to another crime deliberately elicited by the prosecutor is imputable to

the State and triggers the rule mandating a mistrial.'

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