State v. StewartState v. Stewart
Curtis Lee Stewart was charged by bill of information with the crime of possession with intent to distribute a controlled dangerous substance, to-wit: marijuana, in violation of
ASSIGNMENTS OF ERROR NOS. 1 AND 3
Defendant contends the trial judge erred in ruling at the preliminary examination that there was probable cause to charge defendant with the instant offense.
It is well settled that the question of probable cause and errors alleged to have occurred at the preliminary hearing are moot once a defendant has been tried and convicted by a jury. State v. Qualls, 353 So.2d 978 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Sneed, 328 So.2d 126 (La.1976); State v. Luckett, on rehearing, 327 So.2d 365 (La.1976). Accordingly, these assignments of error present nothing for our review.
Assignments of Error Nos. 1 and 3 are without merit.
ASSIGNMENTS OF ERROR NOS. 2 AND 7
Defendant contends the trial judge erred in denying his motion to suppress physical evidence and in permitting its introduction at trial.
The pertinent facts are as follows.1 During the previous evening and early morning hours of November 21, 1976, Officer Isaac Robinson, Jr., of the Monroe City Police Department had been on the lookout for Charles Edward Jackson who had escaped from the parish jail. At about 7:30 a. m., while driving his personal vehicle home after completion of his shift, Officer Robinson observed a 1965 red Chevrolet traveling ahead of him in the same direction. As Robinson passed the vehicle, he noticed that the driver of the vehicle was defendant, whose street name was “Sleepy.” Two passengers, whose faces the officer was unable to see, occupied the back seat of the vehicle. Upon seeing the uniformed officer, defendant slowed down and changed lanes. Suspecting that the escaped prisoner might have been a passenger in the vehicle, Officer Robinson radioed the Ouachita Parish Sheriff‘s Office for assistance, which in turn notified Deputy Sheriff Lester A. Edwards, an officer on patrol in a marked
A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
. . . . .
In the instant case, based upon the belief that defendant‘s vehicle might contain a recently escaped prisoner from the parish jail, coupled with the suspicious manner in which the vehicle was operated by defendant upon his observing the police officers, we consider that the police officers had at least the right to follow and to keep defendant‘s vehicle under surveillance. At first, defendant‘s vehicle proceeded at a normal rate of speed. Shortly thereafter, defendant began to accelerate to a high rate of speed, driving recklessly and failing to stop at any of the stop signs. Deputy Edwards specifically stated that he did not activate the red light on his vehicle until “after” defendant “accelerated and started driving at a high rate of speed.” After tracking defendant‘s vehicle to a dead-end street, defendant attempted to resist arrest by flight on foot. Finally, after defendant was apprehended, he was arrested for reckless operation of a vehicle and resisting an officer. Clearly, these offenses were committed in the presence of the arresting officer. No warrant for defendant‘s arrest was required. The evidence abandoned by defendant during his flight from a lawful arrest was legally seized and was admissible in evidence. Since the arrest of defendant and seizure of the evidence were lawful, the
Assignments of Error Nos. 2 and 7 are without merit.
ASSIGNMENT OF ERROR NO. 4
Defendant contends the trial judge erred in permitting a state witness, Sergeant Neil Wellbrink, to testify to the number of cigarettes that could be made from one pound of marijuana.
After testifying to his training and experience in drug identification and investigation, particularly in connection with marijuana, Sergeant Wellbrink testified that, based upon his experience in weighing marijuana, a single marijuana cigarette usually weighs between one-half (½) and seven-tenths (7/10) of a gram. Over defense objection, the witness was then permitted to testify that about six hundred forty-seven (647) to nine hundred six (906) cigarettes could be made from one pound of marijuana.
On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.
In the instant case, our review of the record convinces us that Sergeant Wellbrink possessed sufficient special training and experience in the field of marijuana to express an opinion in that field. He also stated the facts upon which his opinion was based. Hence, the trial judge properly permitted him to express an opinion as to the number of cigarettes that could be produced from one pound of marijuana. Even assuming arguendo that Wellbrink was not properly qualified to express his opinion on this subject, defendant suffered no prejudice from his testimony since, later at trial, Linda Armstrong, who was duly qualified as an expert criminalist, testified without objection that approximately nine hundred (900) cigarettes could be made from one pound of marijuana.
Assignment of Error No. 4 is without merit.
ASSIGNMENT OF ERROR NO. 5
Defendant contends the trial judge erred in permitting state witness Officer Isaac Robinson, Jr., to recount in narrative form the actions of defendant in the operation of his vehicle while he was being observed by the officer. We have held that the trial judge has great discretion in this regard. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Peters, 302 So.2d 888 (La. 1974). Unless an abuse of discretion is shown, this court will not reverse a conviction based upon the action of the trial judge in controlling the examination of witnesses. We find no such abuse here.
Defendant further argues that the trial judge erred in permitting the state to lead the witness. No objection on this ground appears in the record. In any event, we do not consider that the state‘s questioning of the witness was leading.
Assignment of Error No. 5 lacks substance.
ASSIGNMENT OF ERROR NO. 6
Defendant contends the trial judge erred in permitting the state, over defense objection, to question Deputy Sheriff Lester A. Edwards, as to the speed of defendant‘s vehicle as it was being followed by the deputy. He argues that the question was improper in that it required the witness to express a conclusion. After defendant‘s objection was overruled by the trial judge, the witness responded that, as he began to follow defendant‘s vehicle, it was traveling at a lawful rate of speed.
While it is well settled that a lay witness may not give opinion testimony, it is equally well settled that a nonexpert
Assignment of Error No. 6 is without merit.
ASSIGNMENT OF ERROR NO. 8
Defendant contends the trial judge erred in denying his motion for a judgment of acquittal made at the close of the state‘s case on the ground that the state introduced no evidence that the offense charged was committed in the Parish of Ouachita.
Assignment of Error No. 8 is without merit.
ASSIGNMENT OF ERROR NO. 9
Defendant contends the trial judge erred in refusing to give three requested special charges to the jury. The requested special charges would have instructed the jury that the state was required to prove beyond a reasonable doubt defendant‘s responsibility for the crime, which could be proven by identification testimony, and, additionally, that the circumstances of a witness’ identification of defendant as the perpetrator of the crime, including the witness’ opportunity to observe him during the commission of the offense, could be considered in determining the reliability of the witness’ identification.
Although defendant in his brief submitted this assignment of error to the court for its consideration without briefing it, we have reviewed his contention and find it to be without merit. In his general charge, the trial judge instructed the jury that the burden was on the state to prove every element of the crime charged beyond a reasonable doubt. Identification of the accused as the perpetrator of the offense was one of the elements of proof required. Furthermore, the trial judge instructed the jury that it had to determine the weight and credibility of a witness’ testimony and, in so deciding, it should consider the opportunity which the witness had to observe the perpetrator of the crime and the circumstances surrounding his or her testimony. Hence, defendant‘s requested special charges were included in the general charge given by the court.
Assignment of Error No. 9 has no substance.
DECREE
For the reasons assigned, the conviction and sentence are affirmed.
DIXON, J., concurs with reasons.
CALOGERO, J., dissents and assigns reasons.
CALOGERO, Justice, dissenting.
I believe that the trial judge erred in denying defendant‘s motions to suppress and for that reason I would find merit in defendant‘s assignments of error numbers 2 and 7.
The officer saw that two persons were in defendant‘s vehicle but could not see who they were. Based on no factual basis at all, the idea popped into the officer‘s mind that one of these persons might be the escaped felon he had been searching for earlier in the day. Nothing in the record indicates that there was any known connection between the defendant and the escapee. The officer himself admitted that he did not see the escapee in the vehicle and no car registration check tied the escaped prisoner to the red Chevrolet.
A law enforcement officer has the right to make an investigatory stop of a person “whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor . . . .”
Here, defendant‘s actions in changing lanes was as consistent with innocence as with guilt, and there was no fact linking the escaped prisoner to defendant‘s car, except a baseless idea which “flashed” into the officer‘s head. In short, there was no reasonable basis on which the officer stopped defendant Stewart‘s car, making his arrest and the seizure which followed illegal. State v. Smith, supra; State v. Perigue, supra; State v. Cook, supra. I believe that the majority errs in holding otherwise.
DIXON, Justice (concurring).
I respectfully concur.
If, as argued to us, Officer Robinson had a hunch that an escaped prisoner was possibly in the back seat of defendant‘s automobile, and undertook, in cooperation with the sheriff‘s department, to stop the car to determine whether the escaped prisoner was in it, causing the chase which followed, I would be of the opinion that the stop clearly violated the constitutional prohibition against unreasonable searches and seizures.
On the other hand, if the facts were as related in the majority opinion, I would agree with the conclusion reached by the majority. Clearly, the police would have had the right to follow defendant‘s vehicle, and arrest him if he was guilty of speeding, running stop signs, or reckless driving.
However, my interpretation of the record differs from that of the majority. Nevertheless, the evidence as I read it does disclose that the deputies in a marked police car had probable cause to stop defendant‘s vehicle.
Robinson did not communicate directly with the sheriff‘s deputies who made the stop. He called the sheriff‘s office on his CB radio. Although at trial Robinson denied that he told the sheriff‘s department that the escaped prisoner was in the automobile (he said he requested that the sheriff stop defendant to see if the escapee was in the car), the deputies who chased the defendant were informed on their radio that an off-duty police officer (Robinson) had seen three people in the vehicle and one of them was “thought to be” the escapee.
In the affidavit made by the sheriff‘s deputies to obtain the search warrant to make a further search after the defendant had been apprehended, Deputy Edwards
This testimony makes it clear that the deputy who chased the defendant had information which he should have been able to believe that a Monroe policeman, whose observation should have been reliable, had seen an escaped prisoner in the defendant‘s automobile.
Therefore, even though the sheriff‘s deputies intended to stop the defendant‘s automobile as soon as possible, and before the defendant‘s automobile began to speed, and before it ran a stop sign, or drove otherwise recklessly, they had probable cause to stop the car to see if it contained the escaped prisoner.