State v. MarksState v. Marks
Oliver Marks and Herbert Jones, Jr. were indicted by the grand jury for the Parish of Orleans for possession with intent to distribute a controlled dangerous substance, to-wit: heroin, in violation of
ASSIGNMENTS OF ERROR NOS. 1, 3 AND 8
Prior to trial, defendants moved to suppress certain physical evidence on the ground that it was obtained as a result of an unconstitutional search and seizure (Assignment of Error No. 1). Defendants also objected to the admission of the evidence at trial (Assignment of Error No. 3) and moved for a mistrial at the conclusion of the trial on the ground that the evidence was obtained in an unconstitutional search (Assignment of Error No. 8). The trial judge denied defendants’ motions and overruled their objection to the introduction of the evidence at trial. Defendants aver that the trial judge‘s rulings on each of these occasions were in error. Since the merit of each assignment of error depends on the constitutionality of the search, we will treat them together for ease of disposition.
At the hearing on the defendants’ motions to suppress evidence, Officer Louis Dabdoub testified as follows:
At approximately 6:30 P.M. on that date (August 29, 1975) myself, Officer Haab was my partner, and Assistant Chief of Harbor Police Joseph Canatella met with a reliable confidential informer who has given us information in the past which has led to arrests and convictions. This informer told us that a Negro male whose name he did not know, who was big, heavy, and wearing flashy clothes and whom he thought had a gun was on the corner of Baronne and Clio. He stated this unknown Negro male was driving a red 1965 Pontiac, License No. 74L842, and the vehicle was parked on Clio just off Baronne Street. He stated the Negro male was waiting for another unknown Negro male driving a gold Pontiac to bring him two or three bundles of heroin.. . .
The record further discloses that after receiving the “tip,” Officer Dabdoub radioed the information to other narcotics units in the area. Two units responded to the alert and assisted Officer Dabdoub in setting up a surveillance in the area of Clio and Baronne. One unit, manned by Officer Branham was stationed on Carondelet Street. Another vehicle, occupied by Officers Schultz and Martin set up surveillance on Clio Street in a position enabling them to observe the corner of Clio and Baronne. Officer Dabdoub‘s vehicle was stationed at the intersection of Clio and St. Charles. During the course of setting up the surveillance, the officers corroborated the informant‘s tip as to the location and license number of the red Pontiac. They also observed a big, heavy set Negro male (Marks) wearing flashy clothes who fit the description given to Officer Dabdoub by the informant. At about 8:40 p.m., Officer Schultz saw a gold Pontiac pull up to the intersection of Clio and Baronne. An occupant of the gold car got out and spoke to a group of people standing on the corner where the defendant Marks had been observed. As soon as the occupant of the gold Pontiac reentered the car, the defendants Marks and Jones were seen getting into the red Pontiac. With Jones as driver, they followed the gold car to Carondelet and turned left out of Officer Schultz‘s sight. Meanwhile, Officer Branham, who was stationed on Carondelet, saw the two vehicles and
It is well settled under the fourth amendment that a search conducted without a warrant issued upon probable cause is per se unreasonable—subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of the person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has recently been confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful.
In order to resolve the issue in this case, therefore, we must determine when the defendants were actually arrested and whether the arrest was based upon probable cause to believe that they had committed a crime.
Article 201 of the Louisiana Code of Criminal Procedure defines “arrest” as follows:
Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.
The statutory definition of “arrest” is keyed to the concept of restraint. In this case, the defendants’ car was initially surrounded by three police vehicles, one of which pulled in front of the red Pontiac expressly to prevent its departure. The officers got out of their vehicles and closed in on defendants’ vehicle. They identified themselves as policemen and removed the defendants from their car, placing them “spread eagle” against the rear of the vehicle. At that point, the freedom of the
Article 213 of the Louisiana Code of Criminal Procedure provides in pertinent part:
A peace officer may, without a warrant, arrest a person when:
. . . . . .
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer;....
Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973).
In the case at bar, the police had received information from a reliable informant who, on prior occasions, had given information leading to arrests and convictions. Moreover, the informant‘s tip was highly detailed in its description of the build and clothing of the defendant Marks, his automobile‘s license number and location, and the other car that would be involved in the drug transaction. Thus, although the informant did not specifically state the source of his information, the report was of a sort which in common experience may be recognized as having been obtained in a reliable way. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). When the defendants were stopped, virtually every bit of the information given by the confidential informant had been verified. Coupled with Officer Branham‘s independent observation of an exchange between defendant Marks and the driver of the gold Pontiac, we are convinced that ample probable cause existed prior to the arrest of defendants. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Accordingly, since the arrest was constitutionally valid, the evidence seized during the course of the search incident thereto was properly admissible at trial. The trial judge did not err in overruling defendants’ motions to suppress the evidence, their objection to its introduction at trial, and their motion for a mistrial.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 2
Defendants contend that the trial judge erred in not requiring the state to furnish
The function of a bill of particulars is to inform the defendant more specifically of the nature of the charge against him. It cannot be used as a device to secure the details of the state‘s evidence or collateral information.
In brief, defendants argue for the first time that they needed a list of state witnesses to determine the identity of the confidential informant who tipped off the police to the ensuing drug transaction. Even had the state complied with defendants’ request for a witness list, no information about the confidential informant would have been obtained; the informant was not among the state witnesses appearing at trial. Moreover, the trial judge noted that a full list of state witnesses had already been filed in the proceedings.
Furthermore, the court will order the disclosure of the name of the confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Rhodes, 308 So.2d 770 (La.1975); State v. Howard, 283 So.2d 197 (La.1973); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). The transcript of the hearing on the sufficiency of the state‘s answer to defendants’ motion for a bill of particulars reveals no attempt by the defendants to demonstrate to the trial judge the importance of the informant‘s identity to their defense. Hence, we have no showing of exceptional circumstances here.
In sum, we find no error in the trial judge‘s ruling that the state was not required to furnish the requested information. This assignment of error is without merit.
ASSIGNMENTS OF ERROR NOS. 4, 5 AND 6
Defendants contend that the trial judge erred in failing to sustain their objections to the testimony of Officer Frank Ben on three occasions as being irrelevant.
Defendants first objected on the ground of relevancy when Officer Ben was asked to testify for the state concerning the packaging, preparation and distribution of heroin.
Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.
In the instant case, defendants were being prosecuted for possession of heroin with the intent to distribute. We have recently held that the amount and form of a controlled dangerous substance found in the possession of an accused constitutes evidence from which a jury can properly infer an intent to distribute that substance. State v. Willis, 325 So.2d 230 (La.1975); State v. House, 325 So.2d 222 (La.1975); State v. Sibley, 310 So.2d 100 (La.1975). Therefore, testimony demonstrating the form and quantity of heroin usually associated with wholesale and street level distribution of that substance was highly relevant to support an inference that the heroin seized from the defendant Marks was intended for distribution rather than for personal use. Accordingly, the trial judge did not err in overruling the objection of the defendants to this testimony.
The second occasion on which the defendants objected to Officer Ben‘s testimony occurred when the prosecutor questioned the officer on the formation of scar tissue in veins. The record reveals that no prejudice to the defendants resulted from this question since the district attorney
Defendants’ next objection was to the ruling of the court that Officer Ben was qualified to testify as an expert on narcotics paraphernalia and track marks. The ground urged before the trial judge was that the officer had no scholastic or medical training in this field.
The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.
We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Vassel, 285 So.2d 221 (La. 1973). The record discloses that Officer Ben had observed thousands of track marks during the course of his work as a police narcotics agent. Moreover, he had on numerous occasions been qualified as an expert in the filed of track mark identification in Louisiana state and federal courts. We cannot, therefore, find that the trial judge abused his discretion in overruling defendants’ objection to Officer Ben‘s qualifications as an expert.
Defendants urge for the first time on appeal that the testimony concerning track marks was irrelevant and prejudicial.
Assignments of Error Nos. 4, 5 and 6 are without merit.
ASSIGNMENT OF ERROR NO. 9
Defendants contend that the trial judge erred in overruling their motions for a directed verdict of acquittal.3 Both defendants claim that the state failed to produce any evidence of an essential element of the offenses for which they were convicted.
Defendant Jones contends that the state presented no evidence of his constructive possession of the heroin seized from Marks. This court held in State v. Smith, 257 La. 1109, 245 So.2d 327 (1971), that one need not actually possess the controlled dangerous substance to violate the prohibition thereof; constructive possession is sufficient. We further stated in Smith that a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion if he willfully and knowingly shares with the other the right to control of it. Guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Porter, 296 So.2d 302 (La.1974). Whether the accused knew the substance was a narcotic drug is a matter of proof by direct or circumstantial evidence. However, the question of sufficiency of the evidence is a matter, not for this court, but for a jury. It is only where there is no evidence at all of an essential element of the crime charged that this court may legally set aside the conviction on appeal. State v. Knight, 298 So.2d 726 (La.1976).
The record discloses that there was some evidence that the defendant Jones had knowledge of the heroin bundles seized from Marks and that he shared the right to control them. Jones was in the area of the corner of Clio and Baronne when the gold Pontiac pulled up and an occupant spoke to Marks. Jones immediately accompanied Marks to the red Pontiac. Jones, the driver, followed the gold Pontiac to the 1000 block of Carondelet where he pulled over and waited as Marks and an unidentified man from the gold Pontiac met on the sidewalk. He was in a position to observe any transaction that occurred. After Marks concluded his meeting with the unknown man and reentered the red Pontiac, Jones attempted to drive away from the scene. We are of the opinion that these circumstances constituted “some evidence” that the defendant Jones knowingly and constructively possessed heroin.
Since we find some evidence of the offense and each element thereof as to both defendants, the trial judge properly denied defendants’ motions for a directed verdict of acquittal. Hence, this assignment of error lacks merit.
DECREE
For the reasons assigned, the conviction and sentence of Oliver Marks are affirmed. The conviction of Herbert Jones, Jr. is affirmed, but the case is remanded to the trial court for the purpose of correcting his sentence by deleting therefrom the provision denying him the benefit of consideration for parole; otherwise, the sentence of Herbert Jones, Jr. is to remain in full force and effect.
CALOGERO, J., concurs in affirmation of the conviction of defendant Marks, dissents from affirmation of Jones’ conviction, believing there was no evidence to prove his guilt of the crime charged.