Appeal from the 22nd Judicial District Court In and for the
Parish of St. Tammany State of Louisiana Trial Court No. 576,
736 Honorable August J. Hand, Judge Presiding
LeDoux Montgomery District Attorney Matthew Caplan Assistant
District Attorney Covington, LA Attorneys for Appellee, State
Gerard Whittaker Louisiana Appellate Project New Orleans, LA
Attorney for Defendant -Appellant, James Dewitt McIntosh, II
BEFORE: WHIPPLE, C.J., MCCLENDON, AND HIGGINBOTHAM, JJ.
James Mcintosh, was charged by bill of information with two
counts of distribution of heroin, a violation of La. R.S.
40:966 (counts one and two), and two counts of distribution
of marijuana, a violation of La. R.S. 40:966 (counts three
and four). He pled not guilty. Defendant filed motions to
suppress and exclude testimony, which were denied after
hearings. After a trial by jury, the defendant was found
guilty as charged. The trial court imposed concurrent terms
of twenty-five, twenty-five, five, and five years
imprisonment at hard labor. Following the State's filing
of a multiple offender bill of information on counts one and
two, defendant and the State stipulated to his being a
second-felony offender on those counts, and the trial court
vacated defendant's sentences on counts one and two, and
resentenced defendant to concurrent terms of thirty years
imprisonment at hard labor. The defendant now appeals.
2015, Louisiana State Police ("LSP") Trooper John
Heath Miller ("Trp. Miller") received a tip through
Crime Stoppers regarding narcotics sales occurring in St.
Tammany Parish. After confirming the tip with some of his
confidential sources, he began an investigation into
defendant. Trp. Miller brought in an undercover officer, LSP
Trooper Sarah Gilberti-Abbott ("Trp. Gilberti"), to
coordinate with a confidential source to provide an
introduction to defendant and negotiate a $140.00 narcotics
purchase. The first meeting was arranged to take place at a
Rouses's parking lot in Covington on November 19, 2015,
and was to be for the purchase of heroin and marijuana. With
other law enforcement officers surveilling the location,
defendant and Trp. Gilberti parked side by side. The
confidential source, who was with Trp. Gilberti, got out of
the vehicle and conducted a hand-to-hand transaction for
marijuana and heroin within the view of Trp. Gilberti. The
narcotics were recovered by other troopers immediately
thereafter and tested at the State Police laboratory to
confirm their authenticity. Later fingerprint analysis
determined defendant was the source of a fingerprint on a bag
of marijuana obtained during the November 19, 2015 drug buy.
December 1, 2015, Trp. Gilberti and the confidential source
again arranged to meet defendant in order to purchase heroin
and marijuana at the Sonic Drive-in in Mandeville where
defendant was employed. This portion of the investigation was
partially recorded, and the video recording was played for
the jury. While waiting for a third party to obtain the drugs
from another location for defendant to sell to Trp. Gilberti,
defendant and the confidential source spoke about text
messages that they had sent to each other earlier in the day.
The transaction was taking far longer than anticipated, and
the confidential source was complaining about how she thought
it had been set up well in advance through texts between them
earlier in the day. Shortly thereafter the playback stopped
due to a dead battery on the recording device. The third
party returned in defendant's car, and defendant returned
to Trp. Gilberti's vehicle. Defendant then conducted a
hand-to-hand transaction, taking money from Trp. Gilberti and
handing her heroin and marijuana in exchange. The narcotics
were recovered by the investigating troopers soon after and
were tested to confirm their authenticity.
OF ERROR #1: OTHER CRIMES EVIDENCE
assignment of error number one, defendant contends that the
State improperly introduced other crimes evidence when it
purposefully sought to highlight the fact that defendant was
already incarcerated for an unrelated offense at the time the
arrest warrant for the instant offenses was executed.
Defendant unsuccessfully requested a mistrial after the
alleged prejudicial comments. The State asserts that by
failing to object to the initial mention of defendant being
arrested for another offense, defendant effectively waived
the claim on appeal. Moreover, the State argues that trial
counsel "opened the door" during cross-examination.
mistrial under the provisions of La. Code Crim. P. art. 771
is at the discretion of the trial court and should be granted
only where the prejudicial remarks of a witness who is not a
court official make it impossible for a defendant to obtain a
fair trial. State v. Kitts, 2017-0777 (La.App. 1st
Cir. 5/10/18), 250 So.3d 939, 968. However, an impermissible
reference to another crime deliberately elicited of a witness
by the prosecutor is imputable to the State and mandates a
mistrial under La. Code Crim. P. art. 770. State v.
Lawson, 2018-0382 (La.App. 1st Cir. 11/8/18), 2018 WL
5876815 *11 (unpublished). Because a mistrial is a drastic
remedy that should be granted only when a defendant suffers
such substantial prejudice that he has been deprived of any
reasonable expectation of a fair trial, "mere
possibility of prejudice is not sufficient." State
v. Caminita, 2016-0121 (La.App. 1st Cir. 9/16/16), 203
So.3d 1100, 1106, writ denied, 2016-2045 (La.
9/6/17), 224 So.3d 988. A reviewing court should not reverse
a defendant's conviction and sentence unless the error
has affected the substantial rights of the accused.
See La. Code Crim. P. art. 921. Determination of
whether a mistrial should be granted is within the sound
discretion of the trial court, and the denial of a motion for
mistrial will not be disturbed on appeal without finding an
abuse of that discretion. State v. Friday, 2010-2309
(La.App. 1st Cir. 6/17/11), 73 So.3d 913, 933, writ
denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.
evidence of criminal offenses other than the offense being
tried is inadmissible as substantive evidence because of the
substantial risk of grave prejudice to the defendant.
State v. Pierre, 2012-0125 (La.App. 1st Cir.
9/21/12), 111 So.3d 64, 68, writ denied, 2012-2227
(La. 4/1/13), 110 So.3d 139; see also La. Code Crim.
P. art. 770(2). However, when counsel "opens the
door" to the complained-of subject matter, "the
other party can then explore the subject fully."
State v. Hunt, 310 So.2d 563, 568 (La. 1975). Prior
notice of intent to disclose other bad acts is not required
when the door has been so opened. State v. Marcotte,
2001-1586 (La.App. 3rd Cir. 5/15/02), 817 So.2d 1245, 1253.
cross-examination, defense counsel asked Trp. Miller if he
had planned on purchasing any more drugs from defendant, to
which Miller responded that he had. When asked if he made any
more purchases, Trp. Miller responded that he could not make
any more purchases because defendant was incarcerated.
Defense counsel made no objection. Later, while on redirect
examination, Trp. Miller, in response to the State's
questions, revealed that the narcotics investigation stopped
because defendant was arrested for something else and was
incarcerated in the St. Tammany Parish Jail. At that point,
defense counsel objected and moved for mistrial. The trial
court found defense counsel had "opened the door"
by asking why the ...