State v. BakerState v. Baker
The defendant, Barry Baker, was charged by bill of information with one count of distribution of a Schedule II Controlled Dangerous Substance, cocaine, in violation of
Factual background
The case arose from a controlled drug “buy” in Gibsland on January 7, 1994. Deputy Jarrett Ketchum, narcotics chief for the Bienville Parish Sheriff‘s Office, met with two undercover agents on loan from Beauregard Parish, Deputy Saul Wilson and Deputy Betty Pichon. Dep. Ketchum supplied the agents with “buy” money, told them where to work and introduced them to a confidential informant (“CI“) to facilitate their operation. He did not direct them to any particular suspect.
Deputies Wilson and Pichon, with the CI, drove around Gibsland in an unmarked car looking for drug dealers. About 8:00 p.m., on the advice of the CI, they pulled up to the front of a pool hall and waited in the car, watching the passers-by. Presently the CI recognized the defendant and called out, “Hey, Barry.” Baker walked to the car; Dep. Wilson and the CI got out to speak to him. Dep. Pichon remained in the car and watched. The CI told Baker that Dep. Wilson was “looking for something,” and Wilson told Baker he wanted “a twenty,” meaning a $20 rock of crack cocaine. The CI then walked away from the transaction to speak to a nearby group of people.
According to both deputies, Baker reached into his right pants pocket and pulled out a matchbox. He opened the matchbox, removed a whitish rock (later proven to be crack cocaine) and handed it to Dep. Wilson; Wilson gave him $20 in exchange. Dеp. Wilson placed the rock in his own pocket, got back in the car, and placed the rock in an envelope. The deputies then waited a few minutes for the CI, who was still talking to pool hall patrons. When he returned to the car, the three drove off and resumed looking for drug dealers.
Later the same evening they came back to the pool hall. According to the deputies, Baker was still there and offered to sell them more crack. They declined and left. Around 9:00 p.m. they delivеred the rock to Dep. Ketchum at a pre-arranged location. They described the seller, including the name they had learned from the CI. In fact, Dep. Wilson jotted on a piece of paper (introduced
Dep. Wilson testified that he identified Baker in a photo line-up in March 1994, roughly a month before his arrest on April 27. Both Wilson and Pichon picked Bakеr from a photo line-up one day before trial in April 1995, and they positively identified him in open court.
The defense called several witnesses, most of whom testified as to the type of clothing Baker usually wore. Another defense witness, Vincent Eric McDonald, testified that he had worked as a CI with two deputies, a man and a woman, in Gibsland. He testified he never sold any cocaine to Baker, but admitted he may have pointed him out to undercover agents. He also could not recall what he was doing on January 7. Baker himself testified, admitting that he had a prior conviction in Claiborne Parish for possession of CDS but denying that he ever sold cocaine to Deputies Wilson and Pichon. As noted, the jury found Baker guilty as charged.
Discussion: Sufficiency of the evidence
By his first two specifications Baker urges the evidence, even viewed in the light most favorable to the State, did not prove beyond a reasonable doubt that he was guilty of distribution of cocaine, or of any responsive verdict.
The appellate standard for sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; State v. Bellamy, 599 So.2d 326 (La. App.2d Cir.), writ denied 605 So.2d 1089 (1992). The appellate court‘s authority to review questions of fact in a criminal case is limited to the sufficiency determination under Jackson, supra, and does not extend to credibility determinations by the finder of fact.
In cases involving a defendant‘s claim that he was not the perpetrator of the crime, or where he remains silent, the Jackson rationale requires the State to negate any reasonable possibility of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Chism, 591 So.2d 383 (La.App.2d Cir.1991).
The statute under which Bаker was charged makes it unlawful for any person knowingly or intentionally, among other acts, to distribute a controlled dangerous substance classified in Schedule II.
The thrust of Baker‘s argument is that the deputies’ identification of him is unreliable, as they “could recite the standard recitations common to all alleged undercovеr buys: they could recite big man, blue shirt, black pants, which are clothes that almost everyone has, or which could be confused at a distance.” He further argues that the testimony of the defense witnesses refutes the deputies’ account that he kept the cocaine in his front pants pocket because the defense evidence showed beyond a reasonable doubt that at the time of the alleged offense, Baker did not own any pants with pockets.
In the first place, this is not a situation where the State‘s testimony is internally contradictory or in hopeless conflict with physical evidence. Cf. State v. Gipson, 26,433 (La.App.2d Cir. 10/26/94), 645 So.2d 1198.4 The testimony of the defendant and five of his friends and relatives is not “physical evidence” that he owned or wore no pants with pockets. See State v. Evans, 512 So.2d 615, 622 (La.App.2d Cir.1987). The issue is only whether the jury could rationally disregard the defense testimony and accept the deputies’ account of the drug transaction. The defense‘s proposition that a 23-year old man—one who claims to attend church and work for a steel fabrication company, and may have recently attended his brother‘s wedding—that such a man never wore pants with pockets may be so implausible on its face that no rational fact finder would believe it. State v. Mussall, 523 So.2d at 1311-1312; cf. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Further, even if the defense witnesses’ testimony is taken at face value, it is not consistent enough to mandate a finding of insufficient evidence to convict. For instance, Douse testified not only that Baker always wore sweat pants, but that hе never wore a coat; Baker disagreed, saying he wore a high school letter jacket in cold weather, and Douse had seen it. R.pp. 222, 243. None of the defense witnesses could recall if he or she was with Baker on the night of January 7, or confirm what he was doing or wearing at the time. Notably, Vincent McDonald, whom the defense tried to name as the CI who assisted Deps. Wilson and Pichon in the sale, refused to say he (McDonald) was involved.5 By contrast, the deputies’ testimony identifying Baker as the seller wаs positive and unhesitating, easily negating the reasonable possibility of misidentification. State v. Long, 408 So.2d 1221, 1227 (La.1982).
Viewed in the light most favorable to the State, the evidence permits a finding that on the night in question, Baker went to the pool hall wearing pants with pockets, and sold a $20 rock of crack cocaine to Dep. Wilson. This specification of error lacks merit.
Finally, Baker urges that another essential element of the offense was not proved. He correctly cites the bill of information as charging that he knowingly or intentionally distributed a Schedule II CDS, “when said substance had not been obtained directly or pursuant to a valid prescription or order from a practitioner[.]” R.p. 14. He contends that the State offered no proof that his conduct was not pursuant to a valid prescription or order of a practitioner. However, neither the statute under which Baker was charged,
Disclosure of CI
By his ninth specification, Baker urges the State‘s witnesses should have been required to affirm or deny that Vincent McDonald was or was not the CI, when Baker subpoenaed him to contradiсt the undercover deputies’ testimony as to what the CI had done. In brief Baker contends McDonald “testified that he was the CI” and had the defense been able to prove this, “the Jury could not have failed to understand that the person about whom the undercover persons were testifying disputed their testimony.”
Louisiana has a strong public policy in favor of protecting the identity of confidential informants. State v. Davis, 411 So.2d 434 (La.1982). The defendant bears the burden of showing exceptional circumstances which would require disclosure of the CI‘s identity, and the district court has much discretion in deciding whether such disclosure is warranted. State v. Oliver, 430 So.2d 650 (La.1983), cert. denied 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983). A showing that the informant participated in the crime constitutes exceptional circumstances requiring disclosure. State v. James, 396 So.2d 1281 (La.1981); State v. Humphries, 463 So.2d 804 (La.App.2d Cir.1985).
Whether a CI‘s actions amount to “participation” in a crime sufficient to merit disclosure of his identity depends on the particular facts of the transaction. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Louisiana, courts have consistently held that the State need not disclose the identity of a CI who merely introduces law enforcement officers to the defendant and does not actually participate in the transaction. See, e.g., State v. Thompson, 27,543 (La.App.2d Cir. 12/6/95), 665 So.2d 686, and citations therein; State v. Jones, 587 So.2d 787 (La.App.3d Cir.), writ denied 590 So.2d 78 (1991). However, when the CI plays a more substantial role, disclosure may be warranted. State v. Carey, 626 So.2d 905 (La.App.3d Cir.1993); State v. Fontenot, 524 So.2d 867 (La.App.3d Cir. 1988).
The participation of the CI in the instant transaction is almost identical to that in State v. Thompson, supra (also involving Deps. Wilson and Pichon). The deputies said the CI introduced Dep. Wilson to Baker. Wilson testified that the CI said, “My boy here he looking for something.” R.p. 84. Pichon said the CI called, “Hey Barry, come here,” and Baker walked over. R.p. 118-119. This is precisely the type of de minimis role that was found not to warrant disclosure in State v. Thompson.
At oral argument, counsel strongly argued that this case differs from the ordinary identity disclosure case in that Baker subpoenaed McDonald, whom he believed was the CI, to dispute the deputies’ testimony of what happened the night of the crime. Baker even asserts in brief, “He [McDonald] testified that he was the CI.” Br., 19. Were this true, Baker would have a stronger argument that the court should have required the deputies to affirm or deny that McDonald was the CI, as his testimony that he never intrоduced them to Baker would directly contradict the deputies’ account.
The record, however, does not support the contention that McDonald “testified that he was the CI” on this particular occasion. On cross examination, he could not remember if he was with the undercover agents on the night of this crime, and declined to state when he worked with them as a CI. R.p. 212. Defense counsel also tried to lead McDonald
Chain of custody
By his 11th and 12th specifications Baker urges the State failed to prove both that a proper chain of custody of the evidence had been maintained and that the substance introduced at trial as the CDS was actually the alleged substance. He contends that the deputies initially identified and sealed the alleged purchase in an envelope, and wrote information on the envelope as they drove away; later, Dep. Ketchum removed the substance, placed it in another envelope, and threw away the original envelope; and when he opened it in court, there was a note (Exhibit S-6) which he could not explain. Baker concludes from this that the admittedly destroyed notes, the uncertainty as to the note wrapped around the one piece of cocaine, and the destroyed envelope prevented an unbroken chain connecting the purchase to the analyzed substance.
Deputy Wilson testified that after he bought the rock from Baker, he got back in the unmarked car and asked Dep. Pichon for something to put it in; she handed him an envelope in which he placed the rock and on which he wrote the time, date, location and seller. R.p. 86. He kept this envelope in his pocket until he met Dep. Ketchum at the pre-arranged location and released it to him. R.p. 87. According to Dep. Ketchum, the agents handed him the rock in a plain manila envelope, on which information about the sale was written. He transferred the rock to an evidence envelope, which had lines printed on the outside. R.p. 140. He copied the sale information onto the evidence envelope, and testified he returned the plain envelope to Dep. Wilson; the latter was not introduced in evidence. R.p. 167. He then sealed the evidence envelope and kept it in the evidence locker until he released it to Dep. Ralеy for transport to the crime lab. Dep. Raley verified that he signed for the envelope on January 10, 1994 at 9:30 a.m., and delivered it to the lab at 10:53 a.m. the same day. The evidence transfer receipt bears a number, “NW 106-94-1,” which remained on the container throughout analysis and trial. Every subsequent transfer was verified by similar receipt. The crime lab found that the rock was indeed crack cocaine; a certificate was introduced as Exhibit S-7 and admitted pursuant to
When Dep. Ketchum opened the evidence envelope at trial, he found in it both the rock of cocaine and a handwritten note (Exhibit S-6). He testified that when Wilson first gave him the rock, it was wrapped in this paper, and Wilson may have written on it while he (Ketchum) was examining the rock. R.pp. 163-164. Dep. Wilson was recalled to testify and stated, for the first time, that he wrote this note when they met Dep. Ketchum at the pre-arranged location; he told Ketchum to keep it in the evidence envelope. R.p. 194-195.
To admit demonstrative evidence at trial, the law requires that the object be identified. Identification may be visual, that is, by testimony that the object exhibited is the one related to the case; and it can be by chain of custody. State v. Sweeney, 443 So.2d 522 (La.1983). The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered. The State need only establish by a preponderance of evidence that the object is the one connected with the case. State v. Sweeney, supra; State v. Hall, 549 So.2d 373 (La.App.2d Cir.1989), writ denied 556 So.2d 1259 (1990).
We have closely reviewеd the evidence and conclude that the loss of the first envelope is of no moment, as the testimony
Motion for mistrial
By his 13th specification, Baker urges the district court should have granted a mistrial, as requested by the defendant at trial, when the prosecutor made the following argument at the conclusion of his rebuttal:
This is the rock of cocaine that that Defendant sold January 7, 1994, to Captain Saul Wilson. This type of activity is poisoning our kids and our friends аnd our society. I don‘t ask you to convict people here, to cure up that problem for no reason. We submit to you that we‘ve proved every element of this case beyond a reasonable doubt and that that is why you should vote to convict this Defendant of distribution of cocaine as charged. That reason and that‘s the only reason. Thank you.
R.p. 300.
The record reflects that after the prosecutor concluded, defense counsel addressed the court, and a bench cоnference was held. The court then charged the jury and sent them to deliberate. Defense counsel then stated he would object on the record for the reason advanced at the bench conference—that the argument was improper as the prosecutor did not clearly state it was his opinion that the rock involved was cocaine, allegedly in violation of State v. Kaufman, 304 So.2d 300 (La.1974). R.pp. 308, 310. The court stated that since the jury had retired, the objection could be construed only as a motion for mistrial; counsel agreed. The court denied the motion for mistrial. R.p. 310.
The State urges in brief that Baker may not raise this argument because he failed to raise a contemporaneous objection.
Argument 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 contested argument must be viewed in light of the record evidence. Deps. Wilson and Pichon positively identified Bakеr as the man who sold them the cocaine; Baker himself denied doing it, but he and the defense witnesses were unsure where he was on the night of January 7, 1994. Lab analysis proved that the rock was indeed crack cocaine. Thus the prosecutor‘s remark, “This is the rock of cocaine that that Defendant sold January 7, 1994 to Captain Saul Wilson,” was a conclusion reasonably drawn from the evidence. It was not improper.
Baker did not object to the prosecutor‘s next sentence (“this type of аctivity is poisoning our kids and our friends and our society“), so it is not properly before this court.
Constitutionality of the statute of conviction
By five specifications of error, Baker urges that the law under which he was sentenced is unconstitutional because it is vague and over inclusive.8 The argument is advanced by an appendix attached to his original brief and by reply to the amicus curiae brief filed by the Louisiana Attorney General pursuant to
Baker concedes that this court has already considered, discussed in extenso and rejected the argument (advanced by the same counsel as represents Baker) that the definition of “distribute” contained in
Conclusion
We have reviewed the entire record and find nothing we consider to be error patent.
AFFIRMED.
APPLICATION FOR REHEARING
Before MARVIN, SEXTON, NORRIS, HIGHTOWER and BROWN, JJ.
Rehearing denied.