State v. LandryState v. Landry
Saul Landry was indicted for distribution of methylenedioxymethamphetamine (ecstasy), a violation of
Defendant has appealed, urging seven assignments of error.
On September 29, 1988, Sgt. Mike Couvillon, a narcotics аgent with the Vermillion Parish Sheriff‘s Office, was working an undercover operation for the Lafourche Parish Sheriff‘s Office. Accompanied by his backup, Agent Mike Fanguy, an officer with the Thibodaux Police Department, and by a confidential informant, Pete Deselle, who testified at the trial, Sgt. Couvillon went to The Horse Lounge in Thibodaux. Inside the bar, Deselle introduced Sgt. Couvillon as “Tony” to defendant. Deselle told defendant that “Tony” was Deselle‘s cousin from Lafayette. Sgt. Couvillon asked defendant if he had a couple of “Tabs” (ecstasy tablets) for sale. When defendant said, “Yes,” Sgt. Couvillon asked for the price. Defendant responded that the tablets cost $15.00 each. Sgt. Couvillon indicated his desire to purchase two tablets; and defendant instructed the agent to follow defendant. Once in another part of the bar, defendant pulled out a box which contained twenty to thirty tablets, removed two tablets, and gave them to Sgt. Couvillon. Sgt. Couvillon paid defendant $30.00. Because Sgt. Couvillon continued to work undercover in the area, defendant was not arrested until a later date.
INTRODUCTION OF REPORT FROM CRIMINALISTICS LABORATORY AND SUFFICIENCY OF THE EVIDENCE:
In assignment of error number three, defendant argues that the trial court erred when it admitted, over defendant‘s оbjection, the report of the criminalistics laboratory into evidence. Defendant maintains that, because he made a timely request for the issuance of a subpoena for the technician who prepared the report, the report should not have been admitted. Defеndant concludes that, as a result of the court‘s error, his constitutional rights of confrontation and cross-examination were denied. In response, the state contends that defendant waived the irregularity concerning admission of the report by waiting to object until the state sought to introduce the report, rather than objecting before the trial began. In the fourth assignment, defendant argues that, because the report should not have been admitted, the state‘s evidence that the substance distributed by defendant was ecstasy is insufficient.
The party against whom such certificate is offered shall be permitted to subpoena on cross-examination the person who рerformed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.
... to inform a dеfendant that such a certificate exists and that it will be used against him. It prevents any confusion or surprise, and it aids the defendant in preparing an adequate defense. It also relieves crime lab personnel from the necessity of appearing at trial when there is no real question or issue surrounding the validity of the analysis performed by the crime lab technician.
State v. Mims, 524 So.2d 526, 536 (La.App. 2d Cir.), writ denied, 531 So.2d 267 (La. 1988). The statute does not relieve the state of its burden to go forward with proof of the elements of the crime. See City of Shreveport v. Burroughs, 511 So.2d 782, 783 (La.App. 2d Cir.1987).
The language of
In the instant case, defendant made a timely request for issuance of the subpoena. At both the trial and at the hearing held on defendant‘s mоtion for new trial, defendant‘s attorney referred the court to a letter written by defense counsel to the clerk of court and trial judge approximately eleven days before the trial began. In the letter, the attorney requested that a subpoena be issued for Wilford Baker, Jr., the forеnsic scientist who issued the scientific analysis report which was introduced by the state as exhibit 8. At the hearing held on the motion for new trial, the trial court took judicial notice that the letter appeared in the court‘s file. Attached to defendant‘s letter requesting the subpoena is evidenсe that the subpoena was issued by the clerk‘s office and served. Because defendant timely requested the subpoena, the trial court erred in admitting the report into evidence.
In overruling defendant‘s objection, the trial judge indicated that defendant should have objected before the first witness was sworn. At the hearing on the motion for new trial, the trial judge also implied that, in order to preserve the issue, defendant should have checked service on his subpoena request and should have made an effort to secure attendance of the witness, including requesting an attachment on the witness.3
When the defendant subpoenas the person who made the certificate more than five days prior to trial, the state is made aware that the certificate will not be аdmissible into evidence in lieu of the testimony of the person who made the certificate, and it is incumbent upon the state to procure the attendance of the person who made the certificate at trial and to offer his or her testimony to establish the results of the examination as proof of an element of the offense charged. It is the state‘s burden, not the defendant‘s, to go forward with proof of the elements of the crime and there is no reason why the defendant should ask for continuance when the subpoenaed witness fails to appear at trial.
511 So.2d at 783. Whilе a defendant has an obligation to exercise “due diligence” in an effort to procure attendance of one of his own witnesses, in order to qualify for a continuance if the witness does not appear, this obligation does not apply when the defense, in order to presеrve the right of confrontation, requests a subpoena under
Although the entire trial has not been transcribed, the minutes reveal that Wilford Baker, Jr., did not testify. The state does not refer this Court to evidence it introduced, other than “State-8,” which established that the substance distributed by defendant was ecstasy. Thus, Wilford Baker, Jr., was an essential state witness. The introduction of Mr. Baker‘s report, without providing defendant with the opportunity to cross-examine Mr. Baker, deprived defendant of his constitutional right of confrontation.
Accordingly, assignment of error no. 3 has merit; аnd defendant‘s conviction and sentence for distribution of ecstasy must be reversed.4
The matter is remanded for a new trial.
Because we reverse defendant‘s conviction under assignment of error number three, it also is not necessary for us to review the merits of assignments 2, 5, 6, and 7. However, because some of the issues raised in thesе assignments may reappear in a retrial, we note the following applicable law.
In the second assignment of error, defendant claims that the trial court erred when it refused to allow defendant to cross-examine the informant concerning the informant‘s prior arrest record аnd pending criminal charges. In sustaining the state‘s objection to this evidence, the trial court implied that defendant was required to show that the informant had entered into “some sort of deal” with the state. However, a witness’ hope or knowledge that he will receive leniency from the state is highly rеlevant to establish bias or interest, even if the state has not entered into an actual “deal” with the witness. See State v. Brumfield, 546 So.2d 1241, 1246 (La.App. 1st Cir.1989), writ denied, 556 So.2d 54 (La.1990). If the charges on the witness’ arrest record are still pending and the defendant‘s purpose is to establish that the district attorney‘s office has leverage over the witness as a result of thе pending charges, or at least that the witness might have assumed so, then the evidence is admissible to show bias or interest. See State v. Brady, 381 So.2d 819, 822 (La.1980); State v. Harrison, 484 So.2d 882, 884 (La.App. 1st Cir.), writ denied, 488 So.2d 688 (La.1986). Criminal charges are considered to be “pending” if the time limitations for institution of prosecution have not elapsed, although the charges have been disposed of. See Harrison, 484 So.2d at 884.
In the sixth assignment of error, defendant argues that the sentence imposed upon him is excessive. He also specifically argues, among other things, that the trial judge erred by imposing a term of imprisonment in the parish prison upon defendant as an effort to send a message to other drug dealers. Although we do not review the merits of defendant‘s claims, we note that it is not improper for a judge to take into account larger sociological concerns (such as the problems drugs have caused in society) in imposing sentence, as long as the sentence is particularized to the defendant. State v. Vampran, 459 So.2d 1333, 1335 (La.App. 1st Cir. 1984). However, a desire to teach others a lesson is not an acceptable basis for a particular sentence. See Vampran, 459 So.2d at 1335. We also note that a patent sentencing error occurred in the trial court‘s failure to credit defendant with time served. See
In the seventh assignment of error, defendant argues that the trial court erred when it denied defendant‘s motion for post-conviction bail pending appeal. However, the issue of whether or not the trial court has improperly refused bail is neither properly nor timely raised on appeal. The cоrrect procedure is to invoke the supervisory jurisdiction of this Court through Louisiana Code of Criminal Procedure article 322. State v. Simmons, 414 So.2d 705, 711 (La.1982). As is evident from this case, once a conviction has been either affirmed or reversed on appeal, the issue of post-conviction bail pending appeal is moot.