State v. AspinState v. Aspin
Defendant, Eric Aspin, was found guilty of the production of a controlled dangerous substance, to-wit: marijuana, in violation of
On the evening of August 25, 1982, law enforcement officers, responding to a reported shooting, made thеir way to defendant‘s residence. Upon arriving, they were informed by Henry Garrett, an occupant of the dwelling, that defendant had been taken
During this search, one of the officers viewed several pots containing plants which the officers suspected to be marijuana. Based upon these facts, two of the offiсers withdrew from the area and proceeded to secure a search warrant. Upon its issuance, the officers returned to conduct a search of the house and surrounding land. During such search, nine plants growing in pots behind the house were confiscated, together with several cake tins containing seeds and drying vegetation. Testing by the State Crime Lab showed that the growing plants, seeds, and drying vegetation were marijuana. Defendant was subsequently arrested and charged with the production of marijuana.
Upon сonviction by the jury, the trial court sentenced defendant to five years imprisonment at hard labor. Defendant now appeals, asserting that the trial court erred in (1) sentencing him to five years at hard labor as it is unsupported by the record, (2) failing to sustain his motion fоr post-conviction judgment of acquittal, (3) failing to sustain his motion to suppress the evidence seized during the search of his residence, (4) allowing the State to prove its case with rebuttal testimony rather than in its case-in-chief, and (5) admitting evidence, over defendant‘s objection, in which a proper chain of custody had not been established.
ASSIGNMENT OF ERROR NO. 3
Defendant asserts herein that the trial court erred in not suppressing the seized evidence based upon the alleged illegal search and seizure in his residence. He contends that the search warrant was obtained after an unauthorized search of his residence turned up incriminating evidence. It is uncontested that the search warrant was based upon the officers’ observation of several marijuana plants growing in barrels on defendant‘s property. The State asserts that the discovery of the marijuana falls within the “plain view” exception to a search warrant. Defendant asserts that such exception is inapplicable in this instance.
The Fourth Amendment to the United States Constitution and
To answer this threshhold issue, the courts have developed another carefully defined exception to the search warrant requirement, the “emergency exception.” Under this exception, police officers may, without a warrant, enter upon private premises to render emergency assistance to those they reasonably believe to be in distress and in need of such assistance. State v. Ludwig, 423 So.2d 1073 (La.1982); and State v. White, 399 So.2d 172 (La.1981). Further, where the officers have received information that a shooting has occurred in the area, they are entitled to make a prompt warrantless search of such area to see if other persons are in need of any aid or if thе perpetrator is still on the premises. State v. White, supra. The burden of showing that the warrantless entry falls within the narrow confines of the “emergency exception” is upon the State. State v. Ludwig, supra.
Herein, it is uncontested that police officers were called to defendant‘s residence as a result of a reported shooting. Upon arriving, the officers were informed that the victim, defendant herein, had been
The record reflects that when the officers were searching the premises for evidence of the сrime or the perpetrator, they came upon the marijuana located behind a small pump house in the rear of the main dwelling. Defendant contends that the distance between the contraband and where the officers were legally entitled to search was approximately 150 to 200 feet. As such, he asserts that the discovery was not inadvertent.
While it is well settled that a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” we find that where a shooting has occurred outside the cоnfines of a residence, a search of the general area is warranted. We also find that the police officers were well within the parameters of their search when they inadvertently discovered the marijuana.
Lastly, the record also reflеcts that the officers who inadvertently discovered the marijuana were very knowledgeable as to the drug‘s physical characteristics. They testified that a close inspection of the material was not necessary to confirm their belief of the substаnce‘s true identity. Having met the three-prong test to substantiate that the marijuana was in “plain view,” we find that it was properly admitted into evidence. Accordingly, defendant‘s assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
Defendant next contends that the chain of custody of the evidеnce seized from his residence was not established. He complains that confusion at the scene and poor cataloging of the seized evidence have led to a discrepancy in the officers’ testimony such that the evidence should havе been excluded.
While some confusion as to the exact number of marijuana plants seized exists, we find that the record clearly establishes that it is more probable than not that the evidence introduced is the same as that originally seized. See State v. Joseph, 441 So.2d 1290 (La.App. 1st Cir.1983). As such, wе find that the trial court correctly found that the State had presented a complete chain of custody. Accordingly, defendant‘s assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
Defendant contends that the trial court erred when it permitted the State to present rebuttal еvidence which he claims should have been properly brought in the State‘s case-in-chief.
Here, defendant testified that he did not know that mаrijuana was growing on his property and that he had nothing to do with it. In rebuttal, the State adduced the testimony of the perpetrator of the shooting, Robert Allen Owens. Owens testified that he had purchased marijuana in the past from defendant, had, in fact, been given marijuana by the defendant, and had seen marijuana growing on defendant‘s property. On the night of the shooting, Owens testified that he had gone up to defendant‘s property to steal some of the marijuana plants.
Moreover, defendant failed to object at trial when such evidence was presented. As such, defendant has waived any right to complain on appeal.
ASSIGNMENT OF ERROR NO. 2
Defendant next contends that the trial court erred in denying his motion for a post-verdict judgment of acquittal based upon insufficiency of the evidence to sustain a guilty verdict. He argues that the circumstantial evidence relied upon by the State failed to exclude every other reasonable hypothesis of innocence.
In the instant case, we have already determined thаt the evidence, viewed in the light most favorable to the prosecution, supports a finding of guilty. Further, assuming every fact to be proved that the evidence tends to prove in order to convict, every reasonable hypothesis does exclude defendant‘s innocence. Accordingly, the trial court‘s denial of a post-verdict judgment of acquittal was proper. We find defendant‘s assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 1
Defendant lastly contends that the trial court erred in imposing an excessive sentence. In brief, he also impliedly asserts that the trial court erred in not considering mitigating factors in arriving at defendant‘s sentence.
Herein, the trial court enumerated for the record, various reasons for the imposition of a prison sentence. The court stated that it believed defendant was not only cultivating marijuana but was involved in its trafficking. It further found that such trafficking led to violence in which life was endangered. Based thereon, the court conсluded that there was an undue risk that during the period of suspended sentence or probation, the defendant would commit another crime. The trial court also stated that it felt that the defendant was unrepentent and that, if placed on probation, he wоuld continue to cultivate marijuana. Based thereon, he found that the defendant was in need of correctional treatment in a custodial environment.
Defendant asserts that when he sought to introduce mitigating factors, the trial court refused to take notiсe. The record substantiates this fact. As such, we find that the trial court did not comply with the letter of the law. However, from the record we find that the trial court‘s refusal to hear defendant‘s comments was harmless error. Accordingly, we find that the trial court adequately complied with
The trial court has wide discretion in imposition of sentences within statutory limits. These sentences will not be set
In the instant case, the maximum allowable sentence is 10 years at hard labor and the payment of a fine in the maximum amount of $15,000.00.
For the above and foregoing reasons, defendant‘s conviction and sentence are affirmed.
AFFIRMED.