State v. Pena

LMURRAY, J.,

Concurring with Reasons.

I agree with the majority’s affirmation of defendant’s conviction and sentence. However, with regard to the discussion of defendant’s second assignment of error, I do not agree with the majority’s conclusion that the prosecutor’s remarks during closing argument “were within the scope of article 774 of the Code of Criminal Procedure.” Although the defendant in his testimony admitted having been in Detroit, New York and New Orleans for various reasons, the assertion that these three places “are major drug distribution cities” is not a conclusion of fact that the State could draw from the evidence or lack of evidence presented at trial, and therefore is not permissible under article 774. Not only was there no evidence presented on this issue, but such evidence would be irrelevant as the defendant was charged with possession, not distribution, of cocaine.

Nevertheless, I do not believe the prosecutor’s prejudicial remark requires reversal in this instance because I am not thoroughly convinced that the jury was influenced by the remark or that it contributed to the verdict. See State v. Langley, 95-1489, p. 7, (La.4/14/98), 711 So.2d 651, 659, and cases cited therein.

Accordingly, for the reasons stated, I respectfully concur.