Petition for Writ of Certiorari — Marquer v. Louisiana

‘ Office -Supreme Court, US.

84-123 FILED

JUL 10 1984

NO. ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CLAUDE MARQUER, SR., CLAUDE MARQUER, JR.,

AND ESTHER MARQUER,

PETITIONERS

VERSUS

STATE OF LOUISIANA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

FOURTH CIRCUIT COURT OF APPEALS

J. SAMUEL SHAMBRA

ATTORNEY AT LAW

3316 CANAL STREET

NEW ORLEANS, LOUISIANA

(504) 822-5220

COUNSEL OF RECORD

FOR PETITIONER

CLIFFORD E. POCHE'

ATTORNEY AT LAW

3501 N. CAUSEWAY BLVD.

METAIRIE, LOUISIANA

(504) 885-9909

QUESTION PRESENTED

Whether the constitutional errors

committed by the prosecution in this case ©

were so pervasive as to have an effect on

the verdict, in violation of the

petitioners' due process rights to a fair

and impartial trial before a jury of their

peers as guaranteed by the Sixth Amendment

and the Fourteenth Amendment of the

Constitution of the United States.

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel or record

certifies that the following listed

persons have an interest in the outcome

of this case. These representations are

made in order that the Judges of this Court

May evaluate possible disqualification or

recusal:

Claude Marquer, Sr., Claude Marquer,

Jr., and Esther Marquer, Petitioners

Harry Connick, District Attorney,

Respondent.

J. Samuel Shambra

Attorney at Law

3316 Canal Street

New Orleans, Louisiana 70119

(504) 822-5220

Attorney of Record

for Petitioner

; -— —_es : INR NE RRC NE IARC RE AEE Tye oor

eae —_ . ‘ ,

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

HOW FEDERAL QUESTION IS

PRESENTED

REASON FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

OPINION OF THE FOURTH

CIRCUIT COURT OF APPEAL

FOURTH CIRCUIT COURT OF

APPEAL DENIAL OF REHEARING

LOUISIANA SUPREME COURT

DENIAL OF WRIT OF CERTIORARI

Page

9-13

13-24

24-25

26-47

48

49

OEE

TABLE OF AUTHORITIES

Page

BERGER V. UNITED STATES, 295

U.S. 78, 55 S.CT. 629 (1935) 15

CHAPMAN V. CALIFORNIA, 395 U.S.

250, 89 S.Ct. 1726 (1969) 13

HARRINGTON V. CALIFORNIA, 395

U.S. 250, 89 S.CT. 213 (1948) 13

MICHELSON V. UNITED STATES, 335

U.S. 469, 69 S.Ct. 213 (1948) 22

PITTMAN V. UNITED STATES, 42

F.2d 793 (8th Cir. 1930) 21

UNITED STATES V. HASTING, __

U.S. , 103 S.CT. 1974 (1983) 13

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1983

CLAUDE MARQUER, SR., CLAUDE MARQUER, JR.,

AND ESTHER MARQUER,

PETITIONERS

VERSUS

STATE OF LOUISIANA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

A writ of certiorari is respectfully

sought to review the judgment of the Fourth

Circuit Court of Appeal.

OPINION BELOW

The Louisiana Supreme Court denied

petitioners' request for a writ of

certiorari from the judgment of the Fourth

Circuit Court of Appeal, State of

Louisiana, on May 11, 1984. The appellate

court judgment affirmed the trial court's

judgment of guilt as to each petitioner.

These judgments and the opinion of the

appellate court appear in the Appendix

hereto.

JURISDICTION

The judgment of the Fourth Circuit

Court of Appeal was entered on February

13, 1984, affirming the convictions

rendered by the trial court on February

15, 1982. The appellate court denied a

timely petition for writ of certiorari on

May 11, 1984. This petition for certiorari

was filed within sixty (60) days of that

date. This Court's jurisdiction is invoked

under 28 U.S.C. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, SIXTH

AMENDMENT:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and

to have the assistance of counsel for

his defense.

UNITED STATES CONSTITUTION, FOURTEENT?2

AMENDMENT:

All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are citizens

of the United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities

of citizens of the United States; nor

shall any State deprive any person of

life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

The petitioners, Claude Marquer, Sr.,

Claude Marquer, Jr., and Esther Marquer

were licensed pharmacists who worked for

many years in the family business, Marquer

Pharmacy, in New Orleans.

In response to information from

confidential informants, the New Orleans

police began stopping customers of the

Marquer Pharmacy and confiscating

prescription drugs.

The petitioners were subsequently

arrested and charged with distribution of

a controlled dangerous substance,

pentazocine (Talwin), in violation of

Louisiana Revised Statute Title 40,

Section 969. The petitioners plead not

guilty. A jury found them guilty as

charged, and accordingly, the trial court

entered judgment on February 15, 1982.

At trial, the State of Louisiana

sought to establish that the petitioners

filled prescriptions which they knew to

be forged for certain persons on a daily

basis. Allegedly, these forged

prescriptions were for equal quantities

of Talwin and Pyribenzamine, a non-

controlled drug.

The two drugs are combined and

injected by some drug users as a

combination referred to as "T's and Blues".

The State asserted that petitioners

illegally distributed these drugs in

exchange for large purchases of other goods

from the business.

HOW FEDERAL QUESTION IS PRESENTED

Petitioners' counsel raised numerous

objections and assignments of error

concerning the propriety and prejudicial

effect of the prosecutor's remarks during

the voir dire examination, (TR. pp. 165-

190), the opening statement, (TR. pp. 191-

205), and the closing statement and

rebuttal. (TR. pp. 1135, 1152-1153).

Also, objections and assignments of error

were made to the prosecution's questioning

of the defense's character witnesses, (TR.

pp. 856-944, 1112-1120).

During the voir dire examination by

the prosecution, the defense counsel

objected and moved for a mistrial on the

grounds that the use of the term "narcotic"

in referring to Talwin was improper,

misleading, and prejudicial, (TR. pp. 166-

169). An assignment of error on this point

was made to the Court of Appeal, which

conceded, as did the prosecution at trial

and in its trial brief, that Talwin is not

a narcotic. The appellate court found no

reversible error.

In the prosecution's opening

statement, the assistant district attorney

used such phrases as "dope using partner”

(TR. p. 201), “dope addict friends " (TR.

p. 203), and “the dope business" (TR. p.

203), all in reference to the petitioners.

In the prosecution's closing

statement (TR. pp. 1135, 1152-53), and

rebuttal (TR. pp. 1135, 1152-53), there

were several obje _tionable comments, all

of which were protested by counsel for

petitioners. Among these was7 the

statement: "Even Wayne Williams up in

Atlanta had character witnesses.” (TR.

pp. 1135). At the time of petitioners'

trial, the highly publicized and

controversial murder trial of Wayne

Williams was being conducted in Atlanta,

Georgia.

During the cross-examination of the

defense's character witnesses, (TR. pp.

856-944, 1112-1120), the trial court

sustained several of the defense's

objections to improper questions, but

never once admonished the jury to disregard

the prosecution's behavior, even when a

direct request for such an admonition was

made by defense counsel. The prosecutor

subsequently persisted in the very same

improper, inflammatory, and prejudicial

remarks.

At several points during the trial,

beginning during the voir dire

examination, the defense requested a

mistrial on the grounds of the

prosecution's misleading and damaging

remarks, (TR. pp. 166-168, 925-926).

Subsequent to their conviction, the

petitioners moved for a new trial, and

their motion was denied, on March 9, 1982.

Petitioners then presented the

prosecution's error constituted a

violation of the petitioners’ right to an

impartial jury. The Court of Appeal

affirmed the convictions and denied a

rehearing.

The Louisiana Supreme Court was then

timely petitioned for a writ of certiorari.

The petitioners argued that under the Sixth

and Fourteenth Amendments to the United

States Constitution, their right toa fair

trial had been violated. The Louisiana

Supreme Court denied the application for

a writ.

REASON FOR GRANTING THE WRIT

CONSTITUTIONAL ERRORS COMMITTED BY THE

PROSECUTION THROUGHOUT THE TRIAL WERE SO

PERVASIVE AS TO HAVE AN EFFECT ON THE

VERDICT, IN VIOLATION OF PETITIONERS' DUE

PROCESS RIGHTS.

In the trial court, prosecutorial

misconduct began with the voir dire

examination of the jury panel = and

continued, unchecked, through the closing

argument.

Recently, this Court reiterated the

doctrine that some constitutional errors

may be deemed harmless. In that situation,

the reviewing court must consider the

entire record and disregard the errors.

United States v. Hasting, U.S. P

103 S.Ct. 1974 (1983); Harrington v.

eT

California, 395 U.S. 250, 89 S.Ct. 1726

(1969); Chapman v. California, 395 U.S.

250, 89 S.Ct. 1726 (1969).

To determine if an error is harmless,

a reasonable doubt standard is applied to

the error's potential or believed effect

on the jury. Hasting, 103 S.Ct. at 1981.

A review of the entire record in this

matter reveals a pattern of improper and

prejudicial remarks by the prosecutor. He

continually attempted to associate the

problems of crime and drug abuse generally

with the alleged behavior of the

petitioners. Such remarks reflect an

impermissive and constitutionally

prohibited communication of presumed guilt

to the fact and guilt determiners, who are

entitled to objective evidence and fair

argument by both sides. The petitioners |

were denied their due process right to a

10

fair trial by this intentional,

persistent, subtle and more often blatant

disregard of the rules of evidence.and the

bounds of fair play.

The prosecutor's misconduct was so

grave as to constitute reversible error.

Because the misconduct was continuous,

pervasive, and significant, there was a

reasonable possibility that the cumulative

effect was to prejudice the jury and their

verdict.

This Court has recognized the unique

power and concomitant responsible of the

prosecutor in a criminal case. Berger v.

United States, 295 U.S. 78, 55 S.Ct. 629

(1935). Prejudicial remarks by the

prosecutor can have a great impact on the

jury, which perceives the prosecutor as

an authority figure seeking justice.

During the voir dire examination and

11

i niall

throughout the trial, the prosecutorial

persisted in using the improper term

"narcotic". He continued to use the term

despite the defense's objection and the

court's sustaining of that objection, (TR.

pp. 166-169). As the Court of Appeal

stated, Talwin, the drug involved in this

case, is not a narcotic under the statutory

scheme.

A popular and very passionately held

belief is that there is a close association

between the use of narcotics and incidences

of violent crime. The trial in this matter

occurred in New Orleans, which has a very

high violent crime rate. By using the

term narcotic repeatedly and despite

objection, the prosecution invited the

jury to view the case in the context of

the City's crime problems.

The prosecutor's refusal to heed the

12

defense's objections and the rulings

thereon sent an additional message to the

jury: even if the defendants were not

charged with the crime of distributing

narcotics, they should have been.

The prosecutor continued this pattern

in his opening statement, (TR. pp. 191l-

205). He again invites the jury to think

beyond the specific charge and evidence

in this case by using such phrases as "dope

selling partners", "dope addict friends",

and “the dope business" in reference to

the defendants. He engaged in a discussion

of how "junkies" operate in the "drug

underworld", (TR. p. 197), referred to a

"devious distribution network" and "the

arms of New Orleans' drug addicts", (TR.

p. 191). None of these remarks had any

connection to the evidence or facts in

this case, nor were they provoked by any

13

strategy or behavior on the part of defense

counsel.

Thus, the prosecutor attempted to

connect the three pharmacist defendants

to the entire “drug underworld" and by

inference, to all the crime in New Orleans.

In the trial on the merits, the

state's case consisted largely of the

testimony of several known drug users and

law violators who admitted to passing

forged prescriptions to obtain Talwin,

(TR. pp. 361-389, 440-566). Further, these

witnesses testified that they would sell

the Talwin obtained from the pharmacy to

others. The quality and character of these

witnesses is obvious; having no credible,

reputable witnesses to introduce into

evidence, the prosecution relied heavily

on the tactic of using impermissible means

of discrediting, disarming, and

14

distracting the defense witnesses.

Another principle witness, Jesse

Carlock, was a relative to the defendants,

and was employed by them as an apprentice.

pharmacist, (TR. pp. 576-760). Mr. Carlock

testified that he had stolen large

quantities of Talwin from the Marquer

Pharmacy and had sold it without the

defendants' knowledge. Mr. Carlock also

testified that he had previously been

arrested on drug charges and feared getting

in "trouble" if he didn't testify, (TR.

pp. 584, 615-621).

The defense witnesses included Claude

Marquer, Jr., (TR. pp. 945-1111), and

seventeen (17) character witnesses, (TR.

pp. 856-944, 1112-1120). In particular,

two of these character witnesses are well

known in the City of New Orleans: Dr.

Frank Minyard, Coroner of Orleans Parish

15

ened

(TR. pp. 911-919), and Judge Phillip

Ciaccio, formerly a New Orleans City

Councilman, (TP. pp. 865-882).

Throughout cross-examination of the

defense's character witnesses, the defense

counsel's objections to the prosecutor's

improper questions were sustained. Yet,

the prosecutor elected not to heed the

court's rulings and received no admonition

by the court. This practice communicated

to the jury an impression that the

prosecutor's behavior was not realiy more

than technically impermissible, and/or

that his purpose was so important his

improprieties should be overlooked.

The prosecution's improper cross-

examination was extremely prejudicial.

For instance, he asked a character witness

it he were aware of the serious drug abuse

problem in New Orleans, (TR. p. 864). The

16

objection to this query was sustained, but

the prosecution continued to question

other witnesses concerning drug abuse

generally, (TR. pp. 895, 904-905, 910,

938).

The prosecutor's questions at times

assumed facts outside of evidence and

conclusions concerning the evidence, all

in an improper manner and all to the

prejudice of the defendants. He would

then ask for the witness's opinion, (TR.

pp. 873-874, 910, 917-918). Such a tactic

was clearly improper. Pittman v. United

States, 42 F.2d 793 (8th Cir. 1930). At

one point, he attempted to have the

defense's character witness testify about

the state's evidence, (TR. p. 874).

Over continuous objections, which are

always sustained, the prosecutor's

methodolgy was always the same: to

17

reiterate prior testimony of the state's

witnesses by repeating it as a question

for a character witness; and to place in

the mind of the jury the general problem

of drugs in connection with these

defendants. This behavior blatantly and

prejudicially defied the standard

enunciated by this Court in Michelson v.

United States, 335 U.S. 469, 69 S.Ct. 213

(1948).

Although the trial court sustained

the objections, no instructions were given

to the jury to disregard the improper

questions and responses. At one point,

defense counsel moved “for a mistrial on

the grounds of prosecutorial misconduct,"

(TR. p. 925). The motion was denied and

the defense attorney, rather than the

prosecutor, was criticized by the court,

albeit outside the jury's hearing, (TR.

18

pp. 925-928).

With no admonition from the court,

the defense was forced to constantly

object. The jury consequently perceived

the defense strategy as overly technical

and troublesome, perhaps as a substitute

for a “valid” defense. By contrast, its

view of the prosecutor as an authority

figure, doing what must be done for the

good of the public and in the interest of

justice, was reinforced. Having been

repeated and rephrased by several

witaesses several times, the testimonial

evidence offered by the state took on an

additional credibility.

The prosecution's prejudical

statements continued through the final

arguments.

It is difficult to imagine a more

horrible crime than the murder of children.

19

In his closing argument, the prosecutor's

comparison of the petitioner's defense to

the defense proferred at the murder trial

of Wayne Williams, (see (TR. 1135) could

only have had one motive and result: to

associate the petitioners with violent

crime in the minds of the jurors.

To reiterate, the test of prejudicial

error in a prosecutorial misconduct case

is whether the errors complained of could

possibly have had an adverse effect on the

verdict. It is clear from the consistency,

significance, and impropriety of the

prosecutor's remarks throughout the trial

in this case that such a result could have

followed, and the petitioners were denied

constitutional fair trial standards by

such misbehavior.

20

CONCLUSION

For the foregoing reasons, a writ of

certiorari should issue a review the

judgment of the Supreme Court of Louisiana.

Respectfully Submitted:

J. SAMUEL SHAMBRA

ATTORNEY AT LAW

MEMBER OF THE UNITED STATES

SUPREME COURT BAR

3316 CANAL STREET

NEW ORLEANS, LOUISIANA 70119

(504) 822-5220

COUNSEL OF RECORD

CLIFFORD E. POCHE'

ATTORNEY AT LAW

3501 N. CAUSEWAY BLVD.

METAIRIE, LOUISIANA 70002

(504) 885-9909

21

CERTIFICATE

I certify that I have served three copies

of the above and foregoing petition for

Writs of Certiorari on opposing counsel,

the Honorable Harry Connick, District

Attcrney for the Parish of Orleans, State

of Louisiana this day of July, 1984.

JOHN SAMUEL SHAMBRA

22

THE SUPREME COURT OF THE

STATE OF LOUISIANA

STATE OF LOUISIANA NO. 84-K-0789

VERSUS

CLAUDE MARQUER, SR.,

CLAUDE MARQUER, JR., AND

ESTHER MARQUER

IN RE: CLAUDE MARQUER, SR., CLAUDE MARQUER,

JR., AND ESTHER MARQUER, Applying for Writ

of Certiorari and Review, to the Fourth

Circuit Court of Appeal, No. KA-0377, from

Criminal District Court, Parish of

Orleans, No. 281-847, Division "H".

May 11, 1984

Denied.

Supreme Court of Louisiana

May 11, 1984

F. Labranche, Jr./s

Clerk of Court

For the Court

App. l

COURT OF APPEAL, FOURTH CIRCUIT

STATE OF LOUISIANA

Clerk's Office, New Orleans, March 21, 1984

DEAR SIR:

REHEARING WAS THIS DAY

REFUSED IN THE CASE ENTITLED "STATE OF

LOUISIANA V. MARQUER, SR., ET AL

NO. KA-0377

Very truly yours,

MARJORIE R. CAMBRE, Clerk

App. 2

STATE OF LOUISIANA * NO. KA-0377

VERSUS * COURT OF APPEAL

CLAUDE MARQUER, SR., .

CLAUDE MARQUER, JR., * FOURTH CIRCUIT

AND ESTHER MARQUER

* STATE OF LA

kRaekkak

AN APPEAL FROM THE CRIMINAL

DISTRICT COURT, FOR THE PARISH OF ORLEANS

NO. 281-487

HONORABLE JAMES F. MCKAY

JUDGE

kRkkkank

ROBERT J. KLEES

JUDGE

(Court composed of JJ James C. Gulotta,

Robert J. Klees, Charles R. Ward)

HARRY CONNICK, DISTRICT ATTORNEY

WILLIAM R. CAMPBELL, ASST. DISTRICT ATTY.

ORLEANS PARISH

619 S. White Street

New Orleans, Louisiana 70119

(ATTORNEY FOR STATE OF LOUISIANA)

J. SAMUEL SHAMBRA

4173 Canal Street

New Orleans, Louisiana 70119

(ATTORNEY FOR DEFENDANTS-APPELLANTS )

CLIFFORD E. POCHE'

324 Dodge Avenue

Jefferson, Louisiana 70121

(ATTORNEY FOR DEFENDANTS-APPELLANTS )

AFFIRMED

FEB 13, 1984

App. 3

The three defendants in this case were

charged with distribution of a controlled

dangerous substance, namely pentazocine.

At their arraignment, all three defendants

pled not guilty. On February 15, 1982,

after a five day jury trial, all of the

defendants were found guilty as charged.

The defendants now perfect this appeal,

seeking to overturn their convictions for

violating LSA. R.S. 40:969.

FACTS

The defendants operated a pharmacy in

New Orleans East for many years. Claude

Marquer, Jr. was the owner of the business

and worked as the pharmacist during the

day. Esther and Claude Marquer, Sr. were

also pharmacists and they generally worked

alternate nights at the pharmacy. rt

cousin, Jesse Carlock, also worked at the

pharmacy as an apprentice, but the three

App. 4

defendants were the only pharmacists

employed at the drug store during 1980.

Sometime during 1980, the Narcotic and

Drug Abuse Section of the New Orleans

Police Department began an investigation

of the Marquer Pharmacy involving

suspected trafficking in pentazocine and

pyribenzamine, better known on the street

as "T's and Blues." The pharmacy was

placed under surveillance. As a result

of this surveillance, combined with

information from confidential informants,

several people were stopped by the police

after leaving the store. Pentazocine and

pyribenzamine were seized from these

people.

On June 18, 1980, Ruby Holmes a/k/a

Hazel White, was arrested a few blocks

from the Marquer Pharmacy. While at police

headquarters she was searched and bottles

App. 5

of tablets were confiscated from her.

Samples taken from two of the bottles

proved to be pentazocine (hereinafter

referred to as Talwin). Inside the

confiscated bottles were “Albert and

Wegmann Pharmacy" labels with the same

address as the Marquer Pharmacy. These

labels contained no directions for use of

the drugs.

Ms. Holmes, an admitted ex-convict and

former drug-addict, testified that she

went to the Marquer Pharmacy every day and

would buy fifty to one hundred pills each

time as well as other items. She testified

that she used forged prescriptions to get

Talwin and pyribenzamine. She identified

some of the forged prescriptions she passed

at the Marquer's store and testified that

she had been passing these _ forged

prescriptions daily for over six months.

App. 6

She also identified two of the defendants

as the pharmacists who worked at the store

when she passed the forged prescriptions.

On October 10, 1980, Robert Melancon

and Norris Odom were stopped by Sargeant

James Lewis a few blocks from the Marquer

Pharmacy. Sgt. Lewis testified that he

advised them they were not under arrest,

but that the police were conducting an

investigation of the Marquer's store and

their help would be appreciated. Mr.

Melancon then turned over to Sgt. Lewis

two vials, each containing fifty pills.

Ms. Odom also turned over two vials of

fifty pills each. These four vials were

later found to contain Talwin and

pyribenzamine.

Robert Melancon, also an ex-convict

and drug user, testified that every day

he and his ex-wife, Norris Odom would go

App. 7

to Marguer's store and pass forged

prescriptions for Talwin and

pyribenzamine. However, after Ruby Holmes

was arrested, they would only go every

other day. He testified that because they

went around 6:00 p.m., Esther or Claude

Marguer, Sr. would usually be on duty. He

would put his prescription on the counter

but, he admitted that he never paid

attention to who actually picked up the

prescription. He identified some of the

forged prescriptions he passed.

Mr. Melancon testified that a young

man by the name of Jesse worked at the

pharmacy and he (Jesse) would sell Talwin

and pyribenzamine to others without a

prescription. However, Jesse was not there

every time Melancon and Odom went into the

store.

Norris Odom's testimony was

App. 8

substantially the same as Melancon's

testimony. She identified all three

defendants and testified that all three

had filled her forged prescriptions at one

time or another. These prescriptions were

for one hundred Talwin, but she was usually

only given fifty at a time. She identified

some of the prescriptions she had passed

at the defendant's store and testified

that the defendants never questioned her

about the use of different names on the

prescriptions even though Esther and

Claude Sr. knew and called her by her real

name.

She further testified that she and

Melancon weren't forced to buy extra non-

drug items but were told that such

purchases would better their chances of

getting their prescriptions filled. Jesse

would sometimes sell Talwin to her without

App. 9

a prescription, however, she never

remembered seeing Jesse working there by

himself.

On November, 4, 1980, Thelma Jones was

stopped by Det. David Peralta near the

Margquer Pharmacy. She turned over to him

two hundred pills, half of which were found

to be Talwin and half which were

pyribenzamine. Ms. Jones testified that

she had just left the pharmacy when she

was stopped.

Ms. Jones testified that she visited

the Marquer pharmacy every night for at

least six months. She would put forged

prescriptions on the counter and then pick

up other items. She would present

prescriptions for one hundred pills but

would generally receive only fifty. She

testified that on occasion the defendants

would refuse to fill her prescriptions,

App. 10

particularly after Ruby Holmes was

arrested. She identified in court some of

the prescriptions she passed at the

pharmacy, including some that were written

in two colors of ink and some where she

had used "“white-out" to change a name on

the prescription.

Jesse Carlock, a cousin of the

defendants, had worked at the Marquer

Pharmacy since 1969. At the time of the

alleged offense he was working as an

apprentice intern pharmacist. He had

originally obtained a permit to work as

an intern in connection with his studies

in pharmacy.

In 1978, he was arrested for forging

prescriptions and was placed on the

District Attorney's Diversionary Program.

The charges were eventually dropped, but

Mr. Carlock never returned to school. He

App. ll

did, however, continue to work at the

pharmacy. He testified that Claude

Marquer, Jr. would work at the pharmacy

during the day, while Esther and Claude

‘Sr. would alternate the night shift. He

also testified that Claude Jr. kept the

books of the store and paid the bills, but

that he and all three defendants would

place the drug orders.

Mr. Carlock testified that Ruby

Holmes, Robert Melancon, Norris Odom, and

Thelma Jones, among others, would visit

the pharmacy daily to buy Talwin and

pyribenzamine. He testified that Claude

Sr. and Esther were friendly with Thelma

Jones and with Norris Odom. According to

Mr. Carlock's testimony, Claude Jr. told

his employees to fill questionable

prescriptions only for people they

recognized. Claude Jr. also instructed

App. 12

hia alii

them to use Albert and Wegmann labels

inside these prescriptions bottles.

Carlock testified that he often told

these people to buy household goods in

addition to the drugs in order to ensure

that their prescriptions would be filled.

In addition, he testified that whenever

one of these regular "T's and Blues"

customers would get arrested, he and the

defendants will stop filling the

prescriptions for a while.

On cross-examinations, Mr. Carlock

testified that he personally sold Talwin

and pyribenzamine to some of these regular

customers, without a prescription, keeping

the money for himself.

Mr. Charles Favro, the Chief Inspector

for the Louisiana Board of Pharmacy, who

was qualified as an expert in the field

of drug accountability audits, testified

Apo. 13

as to an audit conducted at the Marquer

Pharmacy. The November, 1980 audit was

primarily concerned with the _ store's

records dealing with Talwin and

pyribenzamine tablets. As a result of the

audit, Mr. Favro found several violations

of state and federal regulations

pertaining to pharmacies.

Mr. Favro also took an inventory of

the Talwin and pyribenzamine that had been

handled by the Margquer Pharmacy from

January 1 to November 12, 1980. He

concluded that there was a shortgage of

20,904 Talwin and 22,861 pyribenzamine

tablets.

Mr. Favro testified that out of 20,893

prescriptions filled by the Marquer

Pharmacy between January 1 and November

12, 1980, 1,944 were for Talwin and were

for pyribenzamine. These two drugs

App. 14

together accounted for approximately 20%

of the total prescriptions filled during

that period. Mr. Favro also testified:

—/ have never in my work

encountered any other store..that

has dispensed near this..high

percentage of either one of these

drugs."

Over the defense objection, Mr.

Anthony Pepperoni testified that he was

the supervisor of 2 K & B Drug Store located

on Chef Menteur Highway a few blocks from

the Marquer Pharmacy. As a result of a

subpoena duces tecum, he surveyed the

records of this K & B store for the period

from January through November, 1980. He

testified that of a total of 29,853

prescriptions filled by that store during

this period only ninety-eight were for

Talwin, a total of 3,789 tablets.

Det. David Peralta testified that on

November 12, 1980, he served a warrant on

App. 15

the Marquer Pharmacy. Pursuant to this

warrant he and other officers seized

prescriptions for Talwin and pyribenzamine

issued in the names and aliases of Thelma

Jones, Ruby Holmes, Norris Odom, and Robert

Melancon. They recovered a total of 674

prescriptions, 344 of which were for Talwin

and 340 of which were for pyribenzamine,

many of which were filled back-to-back.

Det. Larry Taplin, who was qualified

as an expert in the field of drug abuse

and distribution of drugs in New Orleans,

was present when the Marquer Pharmacy was

searched and when the Marquers were

arrested. Det. Taplin testified, over

defendants' continuing objection, to local

trends in the purchases and prices of

Talwin and pyribenzamine on the street

from 1978 through the time of the

defendants' arrests.

App. 16

awe

The defense presented seventeen

character witnesses, including some public

figures. All of the witnesses testified

that the defendants' reputations in the

community were excellent.

Claude Marquer, Jr. was the only

defendant to take the stand. He testified

that he worked in the store during the day

and the other two defendants would work

alternate nights. He took care of the

books, wrote the checks to the drug

wholesalers, and ordered most otf the drugs

needed by the pharmacy. Marquer testified

that Jesse Carlock worked at the pharmacy

from 1969 until the time of the defendants’

arrest, but that he was always under the

impression that Jesse had returned to

pharmacy school.

Claude Marquer, Jr. testified that he

sold the pharmacy to the Albert and Wegmann

App. 17

chain in 1975 Fut remained as the manager

of the store. However, he repurchased the

store in 1977. He testified that he had

two to three cases of Albert and Wegmann

labels left over when he repurchased the

pharmacy, and that when his supply of

"Marquer” labels ran out he would sometimes

use the Albert and Wegmann labels.

He testified that although for a time

his pharmacy was the only one in the area,

the opening of the K & B and other

pharmacies in that area did not harm the

business. Mr. Marquer stated that while

he would scrutinize and prescriptions he

received, he would generally leave the

administrative details such as typing the

labels and stamping his name on the

prescriptions to Jesse or whoever was

working with him.

Mr. Marquer testified that the only

App. 18

state witness he recognized as a customer

was Ruby Holmes and that he did not see

her in the store every day. At one point,

he testified that he filled back-to-back

prescriptions for Talwin and pyribenzamine

for Hazel White (Ruby Holmes) forty-five

or fifty times. However, later he testified

that any one of the three defendants could

have filled those prescriptions for Ms.

Holmes. He also testified that he was

unaware that “Hazel White" was not Ruby

Holmes' real name and he admitted that he

knew she had been arrested in June, 1980.

In court, Mr. Marquer identified

prescriptions seized from his store that

contained his name stamp. He testified

that he did not knowingly fill any illegal

prescriptions nor did he authorize any of

the others in the store to do so. He

disclaimed any knowledge of Jesse

App. 19

Carlock's sale of pills without a

prescription. He did admit that during

1980, he was aware of the street abuse of

Talwin and pyribenzamine. Finally, he

testified that he was surprised by Mr.

Favro's findings that approximately 10%

of the prescriptions filled by the Marquer

Pharmacy from January to November, 1980

were for pyribenzamine and that

approximately 9.8% were for Talwin.

After considering the testimony and

evidence presented at trial, the jury found

the defendants guilty as charged of illegal

distribution of pentazocine.

The defendants appealed their

conviction and originally presented

twenty-two asSignments of error. However,

only seven assignments were addressed in

brief. The merits of these assignments are

considered below.

App. 20

Assignments of Error I and II

Appellants' assignments of error one

and two deal with the district attorney's

reference during their voir dire to Talwin

as a "narcotic", as well as "dope".

Appellants argue that the use of such terms

is inaccurate and highly inflammatory.

The appellants argue that this case

did not involve narcotics and that the use

of this term “inflamed" the jury. The

prosecutor indicated that he intended to

prove that Talwin was a “synthetic

narcotic". The defense then asked the judge

to instruct the jury to disregard any such

comments. The prosecutor maintained that

he would continue "to keep mentioning

narcotics throughout this entire trial

because...We're talking about narcotic

evidence."

The defense counsel asked for a

App. 21

mistrial based upon the prosecutor's

comments. The court overruled the

objection and denied the motion for

mistrial. The defense counsel then

registered a continuing objection to any

reference to narcotic drugs.

Appellants assert that the court erred

in its failure to sustain the objections

to these comments. Because such comments

were "completely prejudicial", appellants

urge that a mistrial should have been

declared.

La. R.S. 40:961 defines narcotic drugs

as follows:

"Narcotic Drug” means any of the

following, whether produced

directly or indirectly by

extraction from substances of

vegetable origin, or

independently by means of chemical

synthesis, or by a combination of

extraction and chemical

synthesis:

(a) Opium, coca leaves, and

opiates;

App. 22

(b) A Compound, manufacture, sale

derivatives, or preparation of

opium, coca leaves, or opiates;

(c) A substance and any compound,

manufacture, salt, or derivative,

or preparation thereof which is

chemically identical with any of

the substances referred to in

Subparagraphs (a) and (b) of this

Paragraph, except that the words

"narcotic drug” as used in this

Part shall not include

decocainized coca leaves or

extracts of coca leaves, which

extracts do not contain cocaine

or ecgonine.

Appellant is correct in his assertion

that Talwin does not fit this strict jegal

definition. However, testimony was

introduced at trial that Talwin medically

may be considered a narcotic drug. Dr.

Monroe Samuels, who was qualified by the

court as a medical doctor with expertise

in the use and abuse of licit and illicit

drugs, testified that Talwin was

originally marketed as a non-narcotic

drug. However, he noted, it was soon found

App. 23

to have addictive properties like narcotic

drugs.

When asked for his medical definition

of a narcotic drug, Dr. Samuels replied:

A narcotic drug to me is one which

produces narcotics. In other

words, makes one depressed as say

opium or heroin or morphine or

demarol, and, in my opinion,

pentazocine, and one which given

often enough will produce

addiction in the individual, which

if the drug is withdrawn the

individual will suffer from

withdrawal symptoms.”

When asked to distinguish his definition

from the one set forth in La. R.S. 40:961,

Dr. Samuels replied:

"The mere fact that this does not

necessarily include any of the

compounds which are structurally

related to opium or morphine

doesn't make me change my mind

that this is not a narcotic

drug..If it acts the same way,

then I consider it to be a |

narcotic.”

It is debatable whether the district

attorney was in error when he referred to

Talwin as a narcotic drug. Although it

App. 24

does not strictly fit the legal definition

of a narcotic drug, it is apparent that

the drug does have properties that would

compel at least one expert to call Talwin

a narcotic drug. Even if this court were

to find that these “narcotic” references

were error, we do not consider such error

to affect the substantial rights of the

appellants. We conclude any such error to

be harmless, and reversal of appellants’

conviction is not necessary. See La.

C.Cr.P. art. 921 and State v. Gibson, 391

So.2d 421 (La. 1980).

Appellants also cite as error the trial

court's refusal to grant a mistrial due

to the prosecutor's comments. The grounds

for a mandatory mistrial for statements

made by a prosecuting attorney, as set

forth in cC.Cr.P. art. 770, include

statements referring to: (1), race,

App. 25

religion, color, or national origin when

such statements are irrelevant and might

cause prejudice; (2) other crimes

committed by the defendant that are

inadmissible at trial; (3) the failure of

the defendant to testify; (4) a judge's

refusal to direct a verdict. Cr.Cr.P. art.

771 provides for the admonition by the

judge on request to disregard any statement

made by the prosecutor which is “irrelevant

or immaterial and of such a nature that

it might create prejudice against the

defendant..in the mind of the jury”. The

court may also grant a mistrial in these

cases.

Here the prosecutor's remarks clearly

did not meet the criteria for mandatory

mistrial. The trial judge found these

remarks to be harmless and elected not to

declare a mistrial. His refusal was not

App. 26

error.

Assignments of Error No. III

By their assignment of assignment of

error number three, appellants allege that

the trial court erred by allowing the

district attorney to argue the State's

case during his opening statement.

Appellants specifically point to

statements made by Assistant District

Attorney Chester where he refers to the

Marquers' as running a “dope business" as

well as having “dope addict” friends and

partners. Appellants contend that such

comments were beyond the scope of the

opening statement in addition to being

"inflammatory”.

The scope of the opening statement by

the state is set forth in C.Cr.P. art.

766, which provides:

The opening statement of the state

shall explain the nature of the

charge, and set forth, in general

App. 27

terms, the nature of the evidence

by which the state expects to prove

the charge.

The Supreme Court, however, has

consistently held that the trial judge has

wide discretion in determining the scope

of the opening statement, and his findings

will not be disturbed absent a showing of

abuse. State v. McClinton, 399 So.2d 178

(La. 1981); State v. Kinchen, 342 So.2d

174 (La. 1977).

Appellants have not shown that the

Assistant District Attorney's statements

went beyond the scope of the opening

statement. The trial judge ruled that these

Statements were made in explanation of the

state's theory of the case, and the

appellants have shown no abuse of the

judge's discretion in this’ ruling.

Appellants’ assignment of error number

three is without merit.

App. 28

Assignment of Error No. VI

By their assignment of error number

six, appellants contend that the trial

court erred by admitting the testimony of

Detective Larry Taplin as to trends in the

sale of "T's and Blues". Appellants contend

that such testimony was irrelevant and

"the rankest form of hearsay", the only

purpose of which was to “inflame the

passions of the jury” against them.

Detective Taplin was qualified as an

expert in the field of drug abuse and

distribution of drugs in New Orleans.

Detective Taplin explained what "T's and

Blues" were and how they were used by drug

abusers in the community. The trial court,

in response to hearsay objections, ruled

that Detective Taplin could testify only

to statistics gathered by him alone in or

conjunction with someone else. Detective

App. 29

Taplin then testified as to the trend

toward the rising use of T's and blues

from 1979 to the date of trial. He noted

that the number of arrests for T's and

blues almost doubled from 1979 and 1980.

Since he testified from his own personal

experience, this testimony was not

hearsay.

The next objection to the testimony

was that is was irrelevant.

Relevant evidence is defined by La.

R.S. 15:441 as:

Relevant evidence is that tending

to show the the commission of the

offense and the intent, or tending

to negative the commission of the

offense and the intent.

Facts necessary to be known to

explain fact, or which support an

inference raised by such fact, are

admissible.

Our Supreme Court has held that the

trial court has wide discretion in

determining the relevancy of the evidence

presented, and such determination will not

App. 30

be overturned absent clear abuse of this

discretion. State v. Chaney, 423 So.2d

1092, 1099 (La. 1982); State v. Huizar,

414 So.2d 741, 748 (La. 1982); State v.

Bates, 397 So.2d 1331, 1335 (La. 1981).

The witness testified as to how Talwin

is used, what its physical effects are,

how it is packaged, its price and how it

is related to pyribenzamine. One of the

facts that came out through the testimony

of the four addict witnesses was that they

always bought Talwin and Pyribenzamine in

equal numbers from the appellants. The

expert's testimony corroborates the fact

that Talwin and Pyribenzamine are almost

always used together. The expert witness

testified that one of the reasons why

Talwin has become a heroin substitute was

that its quality control was much better

because is was a mass produced drug from

App. 31

legitimate pharmaceutical companies. All

of the evidence presented through Det.

Taplin was extremely relevant information

that corroborated portions of the State's

case. Therefore, this assignment of error

is without merit.

Assignment of Error XII

By their assignment of error number

twelve, appellants argue that the trial

court erred by allowing the state to

introduce statistical evidence that was

not supplied to the defense until just

prior to its introduction. Appellants

contend that the state's inaction by

waiting until the last minute to supply

this evidence to the defense effectively

denied their rights to discovery.

Mr. Anthony Pepperoni, manager of a K

& B Drug Store located near the Marquer

Pharmacy, testified that he surveyed the

App. 32

records of his store from January to

November, 1980 pursuant to a subpoena duces

tecum. Mr. Pepperoni testified to a total

number of prescriptions filled by his store

as well as the amount of Talwin

prescriptions filled during that time.

There was no physical evidence introduced

as to this survey.

Prior to Mr. Pepperoni's testimony,

the defense counsel objected to any

testimony dealing with a _ statistical

analysis compiled at any drug store other

than the Marquer Pharmacy on the ground

that he was not furnished with any

discovery material pertaining to this

survey. Defense counsel conceded that this

analysis may not have been available to

the state when other discovery material

was furnished, but he pointed out the

state's continuing duty to supply

App. 33

requested discovery material. He noted

that even if mere testimony were admitted,

such testimony would unduly prejudice the

defendants because they did not have

adequate time to secure experts to rebut

this testimony.

The prosecutor argued that the motion

for subpoena duces tecum had been filed

into the record two days before trial

actually began. He noted that his amended

answer to the defense discovery motion was

filed into the record just prior to the

beginning of trial and noted that he gave

the document to defense counsel as soon

as he received it.

Pursuant to C.Cr.P. art. 718(2), a

defendant may inspect, copy, etc. any

books, papers, documents, photographs,

etc. within the custody, possession, or

control of the state if the state intends

App. 34

to use such material as evidence at trial.

Additionally, the state has a continuing

duty under C.Cr.P. art. 729.3 to disclose

such evidence when it comes within the

state's control. State v. Strickland, 398

So.2d 1062, 1067 (La. 1981).

The Supreme Court has long held that

the purpose of the discovery rules as set

forth by the Code of Criminal Procedure

is to "eliminate unwarranted prejudice

which could arise from surprise

testimony." State v. Mitchell, 412 So.2d

1042, 1044 (La. 1982); State v. Toomer,

395 So.2d 1320 (La. 1981). However, failure

by the state to disclose will not

automatically require reversal of a

conviction. The defendant must prove that

he was prejudiced by the state's failure

to disclose before a reversal is warranted.

State v. Arnaud, 412 So.2d 1013 (La. 1982);

App. 35

State v. Mitchell, supra; State v.

Strickland, supra.

In State v. Ray, 423 So.2d 1116 (La.

1982), the Supreme Court noted that in

order to justify reversal of a conviction,

the reviewing court:

"..must review the record for a

determination of whether any

prejudice which may have resulted

from the non-compliance caused the

trier of fact to reach to wrong

conclusion." 423 So.2d 1116, 1119

In Ray, the Court held that the non-

disclosure of a “meal card” in the

defendant's name, taken from him at the

time of hie arrest, was harmless error.

The Court noted that the evidence against

the defendant was “overwhelming”, as the

most damaging evidence against him had

already been introduced prior to the

introduction of the meal card. As such,

reversal of his conviction was not

required.

App. 36

~

In the case before this court,

appellants contend that tardy compliance

with the discovery articles in connection

with the statistical compilation of the K

& B store was in effect no compliance.

Appellants argue that they learned of the

existence of the compilation too iate to

adequately prepare a rebuttal.

In their Motion for Discovery and

Inspection filed on May 27, 1981,

appellants asked for copies of and access

to any document within the possession,

custody, or control of the state which

were intended for use by the state as

evidence at trial. The state's original

answer contains no mention of this

statistical compilation. However, on the

first day of trial (Wednesday, February

10, 1982), before the voir dire began, the

state filed its amended answer to discovery

App. 37

which included information that on Monday,

February 8th the state filed three motions

for subpoenas duces tecum requesting

records of the sales of Talwin and

pyribenzamine. The prosecutor noted that

as of that day (the 10th) no return had

yet been made. He further stated:

"But as I've told defense counsel,

as soon as they show up with them,

of course, they'll be in the record

and they'll be available to

defense counsel.”

The defense attorney made no objection

at that time. However, when the compilation

was given to him on Friday, February 12,

raised his objections.

Using the test set forth in State v.

Ray, the tardy disclosure of this

compilation cannot be seen to have so

prejudiced the jury as to compel it to

reach the wong conclusion. There is ample

testimony of the appellants’ guilt above

App. 38

and beyond the evidence of sales of Talwin

in a pharmacy other than the one involved

in this case.

It is apparent from the trial

transcript that as early as Wednesday,

February 10th, appellants knew of the

prosecutor's attempts to compile

statistical evidence of the sale of Talwin

and pyribenzamine. Motions for Subpoena

Duces Tecum were in the court file as early

as Monday, February 8th. Thus, appellants

cannot have been completely "surprised"

as to the existence of the compilation

when it was given to them on Friday,

February 12th.

The state's “late” disclosure of the

statistical compilation does not require

reversal in this case. Assignment of error

twelve is without merit.

App. 39

Assignment of Error XIII.

By their assignment of error number

thirteen, appellants ailege that the trial

court erred by allowing the prosecutor to

repeatedly ask the defense character

witnesses improper questions on cross-

examination. Appellants also allege that

the trial court's refusal to give an

admonition to the jury concerning these

remarks was error.

The defense called seventeen character

witnesses at trial. Of these, ten were

asked what the appellants contend are

"improper" questions by the prosecutor.

However, in the case of three of these

witnesses, appellants did not raise any

objection to the prosecutor's questions

at the time of trial. Of the remaining

seven witnesses who were asked "improper"

questions, four were asked if

App. 40

they knew what "T's and blues" were, one

was asked if he know what "sets" were, one

was asked if his wife had ever passed

prescriptions for "T's and blues", and one

was asked if it would surprise him to learn

that the Marquers sold forty times as many

Talwin tablets in 1980 as the K & B Drug

Store located in the same area as the

defendants' store. In every case,

appellants' objections to these questions

were sustained by the trial court, and in

only one instance was an answer actually

given.

Appellants assign as error. however,

the prosecutor's repeated attempts to ask

these questions in the fact of the

sustained objections even though the

prosecutor knew that such questions were

improper.

Appellants also assign as error the

App. 41

trial court's refusal to grant a mistrial

based upon these repeated improper

questions. They contend that the judge

should have at least admonished the

prosecutor to cease asking these

questions. However, the transcript shows

that the appellants failed to ask for any

admonition from the court. C.Cr.P. art.

771 provides for admonition by the trial

court for improper remarks by the

prosecutor upon the request of the

defendant. As appellants did not make such

a request in this case, the judge's refusal

to admonish the district attorney cannot

be seen as error.

As set forth in La. R.S. 15:479,

evidence of character, whether good or

bad, may only be set forth through the

general reputation of the person among

"his neighbors”, not upon what a particular

App. 42

person thinks of him, Therefore,

appellants assert that the questions posed

by the prosecutor were improper.

Even improper questions will not

mandate reversal of a defendants'

conviction absent a showing of prejudice

to the defendant, and the trial court's

refusal to grant a mistrial should not be

disturbed absent an abuse of this

discretion. See State v. Parker, 416 So.2d

545 (La. 1982) and State v. Schmidt, 354

So.2d 1339 (La. 1978). Here the trial court

sustained every defense objection to the

prosecutor's questions, and in all but one

instance the witnesses did not answer the

questions. The defense attorney did not

ask for an admonition concerning the

prosecutor's repeated questions,

therefore, the trial court's failure to

give one was not error. Appellants have

not shown that the trial court's refusal

to grant the mistrial was an abuse of his

discretion. Appellants' assignment of

error number thirteen lacks merit.

Assignment of Error No. XIV

Appellants’ assignment of error number

fourteen pertains to remarks made by the

Assistant District Attorney during his

rebuttal argument. Appellants contend that

the trial court erred in its refusal to

declare a mistrial at the close of the

state's rebuttal due to these comments.

In their brief, appellants

specifically object to three different

statements made by the Assistant District

Attorney in his rebuttal argument. In the

first statement, he remarked:

"He talked about giving immunity

to the State's witnesses. Well, I

want to know what my priority

should be in prosecuting narcotic

cases. Should I go after somebody,

a pityful (sic) old wreck like

Ruby Holmes, and prosecute Ruby

App. 44

a

Holmes to the fullest extent of

the law? Should I go after Robert

Melancon, a shoplifter? Or should

I go after the big fish, the ones

that sell a hundred and sixty-six

thousand talwins in eleven months?

Which should my priorities be? And

ask yourselves what do you want

my priorities to be as a citizen"

Appellants argue that by making these

remarks the prosecutor wanted the jury to

think that "he would not be prosecuting

this case unless he had a case", and that

he was clearly "appealing to the emotions

of the jurors and asking them as citizens

to look upon what he as the District

Attorney is doing and give him a stamp of

approval".

Appellants contend that the prosecutor

was really telling the jury that the reason

he took this case is because the defendants

were guilty, thereby usurping the jury's

role at trial.

App. 45

Appellants also cite as reversible

error comments made concerning’ the

testimony of Claude Marquer, Jr.:

"Now, let's talk about some more

of the general things that Mr.

Dymond brought up in his argument,

beginning with Claude Marquer's

testimony. Now Claude Marquer's

testimony I think can be summed

up in one word and that's

unbelievable. He got up on the

stand on Saturday and began to

recite the story of his life,

Starting out with a little frame

shack on Chef Menteur Highway. I

thought we were hearing about Abe

Lincoln. And I thought the next

thing he was going to tell us is

he had to walk eleven miles a day

to pharmacy school."

Finally, appellants cite as reversible

error the remarks about the defense

character witnesses:

"But on the other hand, even Wayne

Williams up in Atlanta had

character witnesses."

Appellants contend that these remarks were

improper attacks on their character and

were made only to inflame and prejudice

App. 46

the jury. They contend that such comments

did have an effect on the jury's verdict.

The proper scope of closing arguments

is set forth in C.Cr.P. art. 774 which

provides:

The arguments shall be 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.

The argument shall not appeal to

prejudice.

The state's rebuttal shall be

confined to answering the argument

of the defendant.

Each of the statements to which

appellants object were directed in answer

to the defense's argument. The sentences

preceding the prosecutor's statements

refer to statements made by defense counsel

during his closing argument. Mr. Chester's

remarks about what his priorities should

be were apparently addressed to defense

App. 4/7

counsel's questioning why some of the

state's witnesses were given immunity. As

for the other remarks, the defense counsel

mentioned Mr. Marquer's testimony and that

of the character witnesses in his closing

argument and Mr. Chester's remarks, made

in response, were arguable within the scope

of closing argument as set forth inC.Cr.P.

art. 774.

Even if the remarks of the district

attorney go beyond the scope of closing

argument, our Supreme Court has long held

that in order to reverse a conviction due

to improper argument, the reviewing court

must be convinced that the jury was

influenced by these remarks and that the

remarks contributed to the verdict. State

v. Webb, 419 So.2d 436 (La. 1982); State

v. Sharp, 418 So.2d 1344 (La. 1982); State

v. Winn, 412 So.2d 1337 (La. 1982); State

App. 48

v. ilesser, 408 So.2d 1354 (La. 1982). In

a few cases the court has held than an

improper closing remark did not constitute

reversible error where there was

substantial evidence of the defendant's

guilt. State v. Barrow, 410 So.2d 1070

(La. 1982); State v. Messer.

In the case before this court, Mr.

Chester's statement about appellant's

character witnesses, even if found to be

improper, appears to be harmless error,

and his statements as to Mr. Marquer's

testimony, although sarcastic, cannot

really be considered to constitute

reversible error.

Concerning Mr. Chester's statements

about his priorities, such statements were

apparently addressed to the defense

attorney's questions as to why some of the

State's witnesses were granted immunity.

App. 49

In that respect, these statements were

within scope of closing argument. In this

case, there is sufficient evidence of

appellants’ guilt and there is nocertainty

that any of the remarks complained of

contributed to the jury's verdict of guilt.

This assignment of error is without merit.

Accordingly, defendants’ conviction

and sentence are affirmed.

AFFIRMED

App. 50