State v. HenryState v. Henry
The defendant, Alfred Henry, Jr., was charged with distribution of marijuana, and after a triаl by jury was found guilty of attempted distribution of marijuana. The defendant was given a suspended sentence of 18 months at hard labоr and was placed on supervised probation for a period of two years subject to special cоnditions. Defendant argues on appeal that the trial court erred in failing to grant a mistrial following certain statemеnts by a prosecution witness, and that the evidence presented is insufficient to support the conviction. We affirm.
FACTS
The State‘s principal witness was Deputy John Patrick Arceneaux, an undercover agent working for the Calcasieu Pаrish Sheriff‘s Department. Deputy Arceneaux testified that on June 10, 1983, he went to the defendant‘s home for the purpose оf purchasing a quarter pound of marijuana. The marijuana was delivered to the defendant by a person identified аs John Guillory, and the defendant sold Deputy Arceneaux a bag purporting to be a quarter pound for $300. The defendant аdmits that there were individuals smoking marijuana at his home on the night in question, but he denies having sold any marijuana to Deputy Arcenеaux.
Deputy Charles Palombo, who was working with Deputy Arceneaux at this time, testified that he searched Deputy Arceneaux and his automobile prior to the drug buy, and he possessed no drugs. After the buy, Deputy Arceneaux turned the marijuana over to Deputy Palombo. The marijuana was identified and presented as evidence at trial.
Defense witnesses who wеre present in defendant‘s home on the night in question testified that they observed no sale of marijuana by the defendant to Deputy Arceneaux. Defense witnesses testified further that Deputy Arceneaux smoked marijuana with them at defendant‘s hоme, an assertion denied by Deputy Arceneaux.
MOTION FOR MISTRIAL
Defendant argues that the trial court erred in failing to grant a mistrial following remarks made by Deputy Arceneaux during the State‘s rebuttal. The colloquy between the assistant district attorney and Deputy Arceneaux out of which this issue arose appears in the transcript as follows:
“Q. Mr. Arneneaux (sic), this simulated smoking with Mr. Caрdeville, where did it occur?
A. In the driveway of my home.
Q. And why was he there?
A. He told me that he had information I was a narcotics agent, and that Alfred Henry said ...
MR. CARTER: Your Honor ...
A. ... he would kill me before going to jail.
MR. CARTER: ... I object.....”
The trial judgе sustained the defendant‘s objection to the testimony on the basis that it was hearsay. Defendant‘s motion for mistrial, made out of the hearing of the jury, was denied, and the jury was instructed to disregard the last statement made by Deputy Arceneaux. Defendant argues on appeal that the comment by Deputy Arceneaux constitutes inadmissible evidence of priоr crimes or acts of misconduct which should entitle him to a mistrial.
We note first that the requirements of
Despite defense argument to the contrary, it does not appear that Deputy Arceneaux‘s сomment was responsive to the prosecuting attorney‘s question, nor was it solicited. The questioning leading to the objectionable comment was designed to rebut defendant‘s evidence that Deputy Arceneaux used drugs. The trial judge aсted properly in admonishing the jury to disregard the remark and in sustaining defendant‘s objection to the evidence on the bаsis of hearsay. The comment in question was not so prejudicial as to violate defendant‘s right to a fair trial.
SUFFICIENCY OF THE EVIDENCE
By this assignment, dеfendant argues that there was insufficient evidence to support the conviction. It is well settled that a claim of insuffiсient evidence is judged by considering 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 proved beyond a reasonable doubt. In the case before us it is clear that the trier of fact determined that the State‘s witnesses, partiсularly Deputy Arceneaux, were more credible than those presented by the defense. The question of credibility is within the sound discretion of the trier of fact, and the determinations in that regard will not be disturbed unless clearly contrary to the еvidence. State v. Klar, 400 So.2d 610 (La.1981).
Deputy Palombo testified that Deputy Arceneaux was searched before the buy was to take plаce and that he had no drugs on his person or in his vehicle. Deputy Arceneaux testified that he purchased what appeared to be marijuana from the defendant at the defendant‘s home. Subsequent analysis of the substance proved it to be marijuana. Deputy Palombo testified further that Deputy Arceneaux handed him the marijuana upon his return from dеfendant‘s residence. At that time Deputy Palombo again searched Deputy Arceneaux and his vehicle and found nothing.
In viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. There is no merit to this assignment of error.
For the above reasons, defendant‘s conviction is affirmed.
AFFIRMED.