State v. JacksonState v. Jackson
The defendant Jackson was found guilty by a jury, as charged, of distribution of marijuana (
In August 1982, defendant sold for cash approximately one-half pound of marijuana to an undercover Louisiana State Police agent. The defendant was not arrested until May 1983, because others were under investigation and the agent needed to preserve his undercover status. At trial in October 1984, the government introduced the marijuana sold by defendant and called three police witnesses including the undercover agent. The defense presented no witnesses or evidence.
ASSIGNMENT OF ERROR NO. 1
Defendant complains that the trial court erred in refusing to grant his motion for a continuance to enable him to take a polygraph test. This test was necessary,
ASSIGNMENT OF ERROR NO. 2
Defendant next argues it was error to deny his motion for continuance on the ground he was not being tried by a “jury of his peers.” Only 31 of the possible 100 persons on the list of petit jurors were present in court and available for defendant‘s trial. Therefore, he argues, he was denied a fair opportunity to select and be tried by his peers. Defendant makes no allegation at trial or on appeal that the jury impaneled was defective or improper or that he was somehow prejudiced. The correct procedural device for alleging a jury venire was improperly constituted is a motion to quash.
ASSIGNMENT OF ERROR NO. 3
Defendant asserts the trial court erred when it allowed the prosecution, in response to a defense motion for a bill of particulars regarding venue of the crime, to amend its answer immediately preceding trial. The prosecution initially gave the location of the arrest instead of the location of the offense. Immediately prior to trial the prosecution was permitted to amend its answer to state the location of the offense. Defendant cites
ASSIGNMENT OF ERROR NO. 5
Defendant argues that the lower court erred in refusing to grant his motion for a mistrial based on the prosecutor‘s statements made during closing argument. After two days of trial the prosecution rested. Following a brief recess, the defense rested without calling witnesses or presenting evidence. The assistant district attorney then began his argument to the jury with this comment:
I apologize for being somewhat disorganized. I never would have anticipated at all that there would be no evidence put on by defendant in [the] case and I was not ...
At this point defense counsel objected and moved for a mistrial on the ground the prosecution had made reference to defendant‘s failure to take the stand. The trial judge denied the motion and we are called upon to determine whether the prosecutor‘s statement constituted reversible error.
The prosecutor in State v. Jackson, 454 So.2d 116 (La.1984), used almost identical language to the case at hand:
... the defense did not put on any witnesses, and they don‘t have to, as we stated earlier. They don‘t have to say anything ... (at page 117)
The Supreme Court held that there were other witnesses who could have testified for the defendant and the remark therefore did not focus the jury‘s attention on defendant‘s failure to testify.
In the instant case, the jury could have inferred that the prosecutor‘s statement meant that the state‘s case was uncontroverted because the defense had other possible witnesses besides the defendant. Following opening statements, defense counsel requested the prosecution witnesses be called and sequestered. Three prosecution witnesses were named and placed under the rule. Defense counsel then stated he would like to call his witnesses. They were not present in court but five witnesses were identified by name. Defendant agreed that these witnesses should be placed under the rule when they appeared. These matters occurred and were discussed in open court in the jury‘s presence. The jury was placed on notice by the defense that witnesses other than defendant were available. We conclude then that the jury could have inferred that defendant was not the only person who could controvert the state‘s case. Therefore, we find that the prosecutor‘s statement did not improperly focus the jury‘s attention on defendant‘s failure to testify. See Perkins, supra; Smith, supra; Latin, supra.
In State v. Wormser, 467 So.2d 58 (La. App. 4th Cir.1985), the prosecutor remarked “... Nobody ever came and took the stand and told you [referring to defendant‘s actions on the day in question] ...” The court held:
... there were numerous witnesses who could have testified for the defendant, therefore, the prosecutor‘s remarks did not focus the jury‘s attention on the defendant‘s failure to testify. Furthermore, it cannot be inferred that the prosecutor intended to emphasize defendant‘s failure to take the stand. (467 So.2d at 60)
When taken in context of the trial, the prosecutor‘s statement was an inadvertent, and perhaps inartful, excuse for his being unprepared. This assignment of error is without merit.
ASSIGNMENT OF ERRORS NOS. 6, 7 and 8
By these assignments of error, defendant alleges that the trial court erred when it denied defendant‘s motion for a new trial, accepting instead, a verdict based on insufficient evidence.
In order to satisfy due process standards, the record evidence, viewed in the light most favorable to the prosecution, must be sufficient for a rational juror (factfinder) to conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When
In the instant case, the trial court did not err in finding the evidence sufficient to support defendant‘s conviction. There exists ample evidence to support the jury‘s finding that the essential elements of the crime were proven beyond a reasonable doubt.
The statute that the defendant was convicted of violating,
§ 966.
A. Manufacture; Distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I;
Thus, the state must only show that the defendant knowingly or intentionally distributed marijuana.
The testimony adduced at trial, especially that of State Trooper Charles Epps, provides proof that defendant did in fact distribute marijuana.
Trooper Epps testified that he purchased marijuana from the defendant on July 26, 1982, and that the defendant was subsequently arrested on May 6, 1983. The fact that an ongoing undercover narcotics investigation was being conducted was the reason given by Epps in explaining the delay in arresting the defendant. As Epps explained, to have immediately arrested the defendant would have “blown” his cover, effectively ending the investigation.
Trooper Epps described the purchase in fairly good detail, stating that he approached the defendant at his residence after being introduced by a second suspect, and asked about purchasing a half pound of marijuana. Defendant suggested Epps return in about 30 minutes and he would have the marijuana. Trooper Epps met him and purchased two quarter-pound bags for $350. Deputy Keith Watkins, whom Trooper Epps was working with while in Jackson Parish, testified that Trooper Epps notified him by telephone of the planned buy and requested $500 to purchase the marijuana. Watkins further testified that Epps contacted him again that night, notifying him that the purchase had been completed.
Finally, Trooper Epps identified the marijuana at trial, and a Crime Lab report, identifying the substance purchased by Trooper Epps from the defendant as marijuana, was introduced into evidence. There was no contradictory evidence presented by the defendant. Therefore, the factfinder was left only with the task of determining the credibility of Trooper Epps.
During a review of a ruling of the trial court based upon a finding of fact, great weight is placed upon the determination of the court below, because the trial judge had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. State v. Loyd, 425 So.2d 710 (La.1982); State v. Alford, 384 So.2d 761 (La.1980); State v. Sullivan, 352 So.2d 649 (La.1977). These findings will not be disturbed unless they are not supported by the evidence. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Castillo, 389 So.2d 1307 (La.1980), cert. denied 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981).
Here, defendant wholly fails to make a showing that the trial court erred in refusing to disturb the jury‘s credibility determination or that the evidence was insufficient to support his conviction.
Accordingly, the trial court did not err in denying defendant‘s motion for new trial or in its finding that the evidence presented was sufficient to support defendant‘s conviction. These assignments of error are meritless.
DECREE
For the reasons explained, defendant‘s conviction is affirmed.
NORRIS, J., concurs.