State v. DavisState v. Davis
On December 15, 1987, defendants Alcides Bell and Andre Davis wеre charged by two bills of information with possession of cocaine and possession of marijuana.
On April 25, 1988, a six member jury found both defendants guilty of attempted possession of cocaine in violation of
Defendants were sentenced on the cocaine conviction to six months in parish prison, credit for time servеd, suspended, six months inactive probation, $100 in fines and, as to Davis only, $155 in court costs or thirty days in default. Court costs for Bell were waived because of his indigency. Defendant Davis was sentenced on the marijuanа conviction to one month in parish prison, suspended, inactive probation, $100 in fines and $155 court costs or thirty days in default. The defendants then moved for an appeal.
At the outset, we note that under the provisions of the
Our sole consideration by this appeal, then, is the defendants’ convictions for attempted possession of cocaine.
Testimony presented at trial reveals the following:
Officer Octave LaRoche testified that on November 2, 1987 at 8:30 p.m. he and Officer Simon Hargrove were driving in the 4200 block of South Roman Street, a quiet residential neighborhood, when they heard loud music coming from a parked car. The officers circled the block and stopped immediately behind the car to ask the occupants to lower the music.
Upon exiting the police vehicle, the officers observed defendant Davis, the оwner of the vehicle, seated in the driver‘s seat with his door open and defendant Bell seated in the passenger seat of the vehicle. Officer LaRoche asked Davis to turn the music down and for identification. Officer LaRoche then observed a tightly-wrapped white package which he believed to be cocaine on the console of the car. He then ordered the occuрants out of the car and placed them under arrest. At trial, it was stipulated that the package retrieved from the car by Officer LaRoche was in fact cocaine.
We have reviewed the record for any errors discoverable by an inspection of pleadings and proceedings and without inspection of the evidence and have found none.
By their first assignment of error, defendants аssert that the search of the vehicle and seizure of the cocaine were illegally made. The search and seizure of this evidence was made without a warrant as required by the
Evidence may be seized under this exception when the following requisites are met:
(1) That there be a prior justification for police intrusion into a protected area;
(2) That the evidence be discovered inadvertently;
(3) That it be immediately apparent, without close inspection, that the items are evidence or contraband.
State v. Pomes, 376 So.2d 133, 135 (La. 1979).
In the instant case, the first requirement is easily met as the officers wеre lawfully present when they were investigating loud music coming from defendant‘s car which was parked along a public street. Secondly,
Appellant relies on this court‘s opinion in State v. LaBranch, 541 So.2d 256 (La.App. 4th Cir.), writ denied, 546 So.2d 1211 (La. 1989) to support his contention that the third prong of the plain view exception to the warrant requirement has not been met. Appellant argues that the police officer only saw a package in the vehicle, the contents of which were not in plain view.
However, in State v. Hall and Steele, 555 So.2d 495 (La.App. 4th Cir.1989), this Court, relying on the reasoning enunciated in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), overruled our previous holding in LaBranch insofar as it held that individual foil packets in a clear plastic jar which the arresting officer knew from his experience to be customary packaging for narcotics were not “immediately apparent” so as to justify a warrantless search.
Officer LaRoche testified that from his experience, he recognized the tightly-wrapped white package as a commonly used method of packaging cocaine. Based on Officer LaRoche‘s personal experience, thеre was probable cause to believe that the tightly-wrapped white package contained contraband. Thus, the third and last prong of the plain view doctrine has been satisfied.
We conclude that the state met its burden in proving the search was legal under the plain view exception to the warrant requirement. This assignment is without merit.
By the second assignment, defendant Bell challenges the sufficienсy of the evidence presented against him. Our standard of review is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The contraband in this case was found on the console of Davis‘s car between the driver and passenger seats. The drugs were plainly visible so that Officer LaRoche was able to notice them while standing on the outside of the vehicle.
To support a conviction for possession of a controlled dangerous substance in violation of
The mere presence of the defendant in the area where the drugs are found, or the mere fact that the defendant knows the person in actual possession is insufficient to constitute possession. State v. Trahan, supra; State v. Johnson, 404 So.2d 239 (1981), cert. denied, by Kelly v. Louisiana, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (U.S.La.1982). However, a person found in the area of the contraband may be considered in constructive possession if the illegal substance is subject to his dominion and control, or if the person is in joint possession of drug which is in the physical possession of a companion, if he willfully and knowingly shares with the other the right to control of the drug. State v. Trahan, supra; State v. Walker, supra. We have no diffiсulty in concluding that Bell had dominion and control over the cocaine which was located on the console next to his seat in such open view that it was plainly visible to someone standing outside of the car. Considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that Bell
By their next assignment, defendants contend that it was error for the trial court to sentence defendants to jail time in default of paymеnt of court costs because of their indigency. The record indicates that defendant Bell who was represented by the Orleans Indigent Defendant Program was not sentenced to jail time in default of pаyment of a fine. We also find that defendant Davis was represented at trial by private counsel, and although he is represented by OIDP on appeal, there has been no showing that Davis was indigent throughout thе proceedings. This assignment has no merit.
By a final assignment, defendant Bell argues that the trial court erred in refusing to examine evidence of a statement allegedly made by defendant Davis which exculpated Bell. Defendant contends that the State sought to introduce the statement at trial, but was prevented from doing so because it had not been previously revealed. Following the trial, defendant Bell sоught to have this statement, which he believed to be exculpatory as to him, examined by the court at a motion for new trial or motion for post verdict acquittal.
Defendant argues that the statement is newly discovered evidence, and as such is grounds for a new trial under
On April 27, 1988, during the hearing on the motion for new trial, the trial court refused to grant a new trial or to re-open the proceedings, in order to determine whether the state had failed to disclose exculpatory material to this defendant. Immediately thereafter, on the same date, during the Boykinization of defendant Davis on his guilty plea on the marijuana charge, counsel for Bell was allowed to question Davis as to the existence of an exculpatory statement. At this time, defendant Davis, on the record, denied under oath that he had given any statement that the contraband did not belong to defendant Bell. Under these circumstancеs, we find that the trial court did not abuse its discretion in denying Bell‘s motion for new trial or motion for post-verdict acquittal. This assignment lacks merit.
For the foregoing reasons, defendants’ convictions on the cocaine charge are affirmed.
MISDEMEANOR APPEAL TRANSFERED; CONVICTIONS AFFIRMED.