# Petition for Writ of Certiorari — Marquer v. Louisiana

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2522%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 856

## Text

‘ 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2522%3A1. Public record. Not legal advice.