State v. VieraState v. Viera
After a joint trial by jury defendant Andrew Viera was convicted of possession of marijuana with intеnt to distribute in violation of
Pursuant to a search warrant the police forced their way into Viera‘s home at about 10 PM on April 14, 1982. They seized about thirty pounds of marijuana in a suitcase in Viera‘s room, a shoe box of cocaine on the refrigerator in the kitchen, a large screen suitable for sifting the marijuana, and a pistol on the kitchen table. Viera testified that he was a regular user of marijuana and had gotten the thirty pounds for his personal use. He stated that a third occupant of the house, Jesus Tapanes, had brought the shoe box to his home earlier in the day but he (Viera) was unaware of its contents. Co-defendant Martinez, Viera‘s brother, testified that he was living there for four months, knew Viera smoked marijuana, but he, himself, did not use it.
Having reviewed this record in the light most favorable to the prosecution, we are satisfied that a rational fact finder could have found the essential elements of the crimes proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982). As to Viera, while he claimed this marijuana was for his personal use, a police officer who was qualified and accepted as an expert in the packaging and marketing of marijuana testified as to the unlikelihood that such a great quantity would be stored for personal use based on a variety of logical and obvious reasons. Intent to distribute marijuana can be inferred from the quantity prеsent. State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983). As to the cocaine the very fact that it was found in a shoe box on top of the refrigerator in Viera‘s house is sufficient to support a finding of constructive possession on his part. State v. Allen, supra. The jury obviously did not believe Viera‘s explanation.
As to Martinez, here the prosecution was required to prоve only that he exercised dominion or control over the illegal substances, not actual possession. But the mere presence of someone in an area where such substances are found or mere association with the persоn found to be in possession of such is insufficient to constitute possession. State v. Walker, 369 So.2d 1345 (La.1979). Here there is much more than “mere” presence and association. Martinez had lived there for four months and knew his brother had this large quantity of marijuana in his bedroom. He also saw Tapanes come in with a shoe box and place it on top of the refrigerator. There was a loaded gun on the kitchen table when the house was searched and the police officer testified that they saw seven individuals separately enter and leave the premises while the house was under surveillance for three hours before the warrant was issued. Determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. State v. Trahan, 425 So.2d 1222 (La.1983). When the facts of this case are considered in the light most favorable to the prosecution any rational jury could have concluded beyond a reasonable doubt that Martinez attempted to possess both
ASSIGNMENT OF ERROR 1
By this assignment defendants contend that the trial court erred in denying their motion to suppress evidence. This argument is based on the fact that the affidavit leading to the issuance of the warrant contained a confidential informant‘s statement that there was twenty pounds of marijuana in Viera‘s bedroom and therefore the search was illegal because the police continued searching the premises after they found this and subsequently seized the cocaine on the refrigerator; the affidavit of the informant‘s statement made no mention of cocaine so that the warrant which did describe “marijuana, cocaine, other narcotics, and paraрhernalia” was impermissibly broad. In support of this argument defendants cite State v. Sanchez, 284 So.2d 918 (La.1973). That case, at best for defendants, contains dicta which considered some items mentioned in the warrant as beyond the scope of the information furnished in the affidavit, but it is inapplicable to the instant case. Here the police had a valid warrant to search the whole house for marijuana at least. Just because they found some in the bedroom they were not precluded from continuing to search for more mаrijuana. They were doing just that when they found the cocaine. The conduct of the police here was authorized by
Defendants would also suppress the evidence because the police forced their way into the premises without announcing their purpose. They employed the use of a tow truck to pull away an iron door and broke into the wooden front door to gain entrance. Defendants contend that this conduct was inconsistent with
Finally, defendants argue that the warrаnt itself was unjustified because the informant and his information were unreliable. They base this assumption on the fact that the informant claimed to witness a sale for cash, and, yet, no cash was seized in the search. Factually, this argument is a non sequitur. Becausе the police found no cash at 9:30 or later does not in any way preclude cash exchanging hands at 4:30. Even so, the affidavit contained all the necessary ingredients to authorize the issuance of the warrant. The informant was known to the poliсe as one whose past information had led to arrests and confiscation of large amounts of narcotics, and he had witnessed a sale of three pounds of marijuana out of a large plastic bag of the substance. This alone was suffiсient but it was further corroborated by activity observed during a three hour surveillance. The judge‘s issuance of the warrant was properly based on a common
This assignment has no merit.
ASSIGNMENT OF ERROR 2
Defendant, Viera, took the stand, admitted that he had thirty pounds of marijuana in his possession, аnd claimed that he had such a huge amount for his personal use because he got it at a bargain price. When asked under cross examination where he got it he refused to answer “because he would be framing” his source. By this assignment he contends that the trial judge committed reversible error in holding him in contempt of court in the presence of the jury for his refusal to answer the question. The court‘s action was authorized by
ASSIGNMENT OF ERROR 3
By this assignment defendants assert that the trial judge erred in refusing to permit defense counsel to talk about the possible sentence his clients might receive in the event of a conviction. When the sentencing provision is not mandatory the trial judge has the discretion either to permit or deny argument regarding the range of sentence available. State v. Williams, 420 So.2d 1116 (La.1982). There the court applied the rule to a trial for armed robbery where there was а range between five and ninety-nine years. Here there was a range (for the cocaine charge) between five and thirty years. This assignment has no merit.
ASSIGNMENT OF ERROR 4
Defendants claim that the court erred in allowing the prosecutor to hold a gun before the jury during closing argument. The record does not contain any reference to this occurrence or to an objection made to it as required by
ASSIGNMENT OF ERROR 5
By this assignment Viera claims his sentence was unconstitutionally excessive. He was sentenced to five years for the marijuana charge while facing a maximum term of ten years and a maximum fine of fifteen thousand dollars under
Before sentencing Viera the trial judge made these observations: He believed Viera to be “a significant dealer of drugs in the City of New Orleans” even giving him the full benefit of the doubt as to no previous convictions there. His expressed concern was with the great quantity of drugs involved here with Viera admitting possession of eighteen pounds of marijuana and blаndly stating this was for his personal use. Of more concern, however, was the quantity of cocaine which is such a saleable commodity and for which there is such a demand despite its danger. Next, the judge meticulously considered
These middle range sentences for each offense were well within the discretion of the trial judgе, the record makes it abundantly clear that this was a sound exercise of his sentencing discretion, and no basis exists for an appellate court to set
In our review of this record for errors patent we found none except that Viera‘s sentences are unlawfully lenient in that no fines were imposed. This error is especially striking in the case of the cocaine for which a mandatory fine of $50,000 is prescribed by
AFFIRMED.