State v. BrownState v. Brown
Defendant, Carol Lynn Brown, was charged by bill of information with three counts of possession with intent to distribute Schedule II controlled dangerous substances.
At approximately 3:00 to 3:45 p.m., on October 21, 1982, Jay Thompson of the Louisiana State Police and officers of the Baton Rouge City Police and East Baton Rouge Parish Sheriff‘s Office executed a search warrant for 1914 Tennessee Street in Baton Rouge. When the officers obtained entry to the house, defendant began running to the back of the house. Thompson and Sergeants Schultz and Blackwell of the East Baton Rouge Parish Sheriff‘s Office pursued her. Defendant tripped and fell as she reached some steps. As she tripped, she either dropped or threw a cigarette case to the floor. Thompson was six or eight feet behind her at that time. He took custody of defendant, and Schultz retrieved the cigarette case. He opened it and recognized what he believed to be narcotics. Defendant was placed under arrest.
Mary Sue Trull, nee Brown, a forensic scientist in the field of chemical analysis of controlled dangerous substances, tested the substances that were found inside the cigarette case. Her tests disclosed that the substances were: 127 peach-colored tablets containing pentazocine; 127 blue tablets containing pyrobenzamine, a non-controlled substance; 10 tablets containing methamphetamine;
Some of the pills inside the cigarette case were in aluminum foil and some were in small plastic bags. Additionally the cigarette case included other pieces of aluminum foil, two pieces of blue paper, one piece of white paper and three pieces of cellophane or plastic wrap.
ASSIGNMENT OF ERROR NO. 1:
By means of this assignment, defendant asserts that the trial court erred when it sustained the state‘s challenge for cause of prospective juror, Shirley Promise.
In questioning the prospective jurors, the trial judge asked if there was any reason they might not be able to serve on the jury as a fact-finder and accept and apply the law to the case. Ms. Promise answered, “yes“, and then indicated to the judge her reluctance to sit in judgment of a person.
The judge then turned questioning over to the assistant district attorney, who asked the prospective jurors: “... are any of you members of that religious order of a Baptist church that does not allow you to judge your fellow person?” Ms. Promise answered, “yes“. In response to questioning she then indicated she didn‘t believe she should judge other people.
The assistant district attorney then asked each of the prospective jurors whether he or she could return a verdict of guilty as charged if the state proved each of the elements of each of the counts as required by law beyond a reasonable doubt. To this question, Ms. Promise indicated that her answer remained the same.
The defense then questioned Ms. Promise and obtained from her the statement that she supposed she could vote not guilty if the state failed in its proof, and she “possibly” could vote guilty if it carried its burden.
Following the conclusion of questioning of prospective jurors, the state renewed its challenge of Ms. Promise for cause, and the court sustained the state‘s challenge.
The defendant asserts that Ms. Promise‘s difficulty was not partiality, but a reluctance to assume the responsibilities of a juror. The defendant also argues that Ms. Promise‘s reluctance was overcome upon further inquiry by defense counsel by her demonstrated ability and willingness to decide the case. In conclusion the defendant argues that the prosecution‘s challenge for cause is unwarranted and unfounded in law, and, therefore, the trial court‘s sustaining the state‘s challenge for cause of Ms. Promise constituted an abuse of discretion.
Paragraphs (2) and (4) of
The state or the defendant may challenge a juror for cause on the ground that:
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(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
* * * * * *
(4) The juror will not accept the law as given to him by the court
....
The trial judge is vested with broad discretion in ruling on a challenge for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Glaze, 439 So.2d 605 (La.App. 1st Cir.1983).
After reviewing both the questions propounded to Ms. Promise and her answers thereto, we reject the defense‘s assertion that she had been rehabilitated and conclude instead that the cumulative, though not entirely consistent, import of her responses evinces an inability on her part to accept the law as given to her by the trial court and an inability to render an impartial verdict according to the law and the evidence. Under these circumstances
This assignment lacks merit.
ASSIGNMENTS OF ERROR NOS. 4 AND 5:
By means of these assignments defendant asserts that the trial court erred by overruling her objections to the state‘s questions directed to Jay Thompson of the Louisiana State Police, as to the street values of methamphetamine and preludin in Baton Rouge at the time of defendant‘s arrest, on the basis that those questions called for hearsay responses.
The alleged improper question regarding methamphetamine is as follows:
Q. All right. Once again, going back to your training and expertise and the fact that you were working narcotics three and a half—or six years and then the three years, did you have occasion to talk to people on the street that use desoxyn or methamphetamine or did you have occasion to work with undercover officers to find out what the current price for methamphetamine was at that time?
Defense counsel objected to the question on the basis of hearsay. The objection was overruled, and Thompson then testified that he did not know the street value of desoxyn and valium at the time of defendant‘s arrest because those substances were very seldom encountered by him on the streets of Baton Rouge at that time. Defendant could in no way be prejudiced by this question.
The other alleged improper question dealt with the officers’ having obtained information from his contact with people in narcotics investigations of the street value of Phenmetrazine. The officer was familiar with this drug and testified that from his information from informants and others with whom he dealt in his investigations, the going price for phenmetrazine tablets at that time was twelve to fifteen dollars per tablet.
In State v. Staton, 433 So.2d 222, 224 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1112 (La.1983), we stated the following:
Intent is a state of mind and need not be proven as a fact, but may be inferred from the circumstances. State v. McDermitt, 406 So.2d 195 (La.1981). The circumstantial evidence considered includes the quantity of the illegal drug and the circumstances of its possession, State v. Elzie, 343 So.2d 712 (La.1977). Testimony as to the street value and dosage units of the narcotic is also relevant to the issue of intent. State v. Tornabene, 337 So.2d 214 (La.1976).
Opinions of persons having special knowledge obtained by means of special training or experience are admissible as expert testimony.
While we are cognizant that the record does not disclose that Jay Thompson had been admitted in the instant case as an expert witness in the field of the street valuation of controlled dangerous substances, we are convinced by our careful review of the record that he possessed the special training and experience required to express an expert opinion in response to the state‘s questions as to the street values of the controlled dangerous substances involved in the instant case.1 He also stated
These assignments are without merit.
ASSIGNMENT OF ERROR NO. 6:
By means of this assignment of error, defendant contends that the trial court erred by failing to grant her motion for mistrial which motion was made after the state asked Jay Thompson the following question: “Did you have occasion to check Carol Brown‘s arms for injection marks to show whether or not she was a user?”
Upon making his objection to the foregoing question, defense counsel requested that the jury be retired, which request was granted by the court. With the jury retired, the court asked Thompson whether he had examined defendant‘s arms for any kind of marks. Thompson answered that he did not recall having done so. The court overruled the defense‘s objection and its motion for a mistrial. The jury was then returned to the courtroom. At this point, the assistant district attorney indicated to the court that he “would attempt to qualify this trooper [Thompson] as an expert in the identity of what is referred to as track marks.” The state then proceeded to lay a foundation for Thompson‘s expertise. Thereafter, the state tendered Thompson without asking him whether he had examined defendant for track marks, and defense counsel then began cross-examination of Thompson as to the state‘s case-in-chief.
On appeal defendant argues that the question asked Thompson constituted a reference to “another crime committed or alluded to have been committed by defendant as to which evidence is not admissible.”2 On the other hand, the state argues that the jurisprudence is clear as to the relevance of its question.
In State v. Perique, 340 So.2d 1369 (La. 1976), the Supreme Court found no error in the trial court‘s permitting a law enforcement officer, who was qualified in the field of wholesale distribution of heroin and identification of track marks to examine the defendants’ arms for track marks in the presence of the jury and to state that he could not find any such marks on either accused. The Supreme Court stated that:
On previous occasions, this court has allowed testimony at trial that track marks were present on the arm of an accused to prove an essential ingredient of the crime charged, i.e., guilty knowledge. State v. Thomas, 329 So.2d 704 (La. 1976); State v. Pierre, 302 So.2d 10 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); State v. Williams, 260 La. 1167, 258 So.2d 539 (1972); State v. Smith, 257 La. 896, 244 So.2d 824 (1971). In these cited cases, the presence of track marks was considered relevant to prove guilty knowledge. Likewise, in this matter, the lack of track marks is relevant in the proof of intent to distribute the drug.
In accordance with Perique and the cases cited therein, we find that the state‘s question regarding track marks in the instant case was clearly relevant.
This assignment of error is without merit.
In assignment of error no. 11, defendant asserts that the trial court erred by failing to follow the mandatory sentencing guidelines of
At the same time defendant was sentenced for her convictions on the instant offenses,3 she was also sentenced on two other drug offenses charged by separate bill of information4 to which charges she had pled guilty. In addition to the instant appeal, defendant filed an appeal of her sentences on the two other drug offenses to which she had pled guilty. In State v. Brown, 464 So.2d 1030 (La.App. 1st Cir.1985), we affirmed defendant‘s sentences.
Because the instant sentences and those appealed in Brown were rendered by the same sentencing court, at the same sentencing hearing, based on the same sentencing considerations, we adopt by reference our finding in Brown that the sentencing court adequately considered the guidelines of
The applicable penalty for possession with intent to distribute pentazocine (count one) is imprisonment at hard labor for not less than four years nor more than ten years, without benefit of parole, probation, or suspension of sentence. In addition, a defendant may be sentenced to pay a fine not greater than fifteen thousand dollars.
Assignment of error number 12 also lacks merit.
CONVICTION AND SENTENCE AFFIRMED.