State v. Alexander

696 So. 2d 171, 1997 WL 292701
CourtLouisiana Court of Appeal
DecidedJune 4, 1997
Docket97-169
StatusPublished
Cited by4 cases

This text of 696 So. 2d 171 (State v. Alexander) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alexander, 696 So. 2d 171, 1997 WL 292701 (La. Ct. App. 1997).

Opinion

696 So.2d 171 (1997)

STATE of Louisiana, Appellee,
v.
Dwayne ALEXANDER, Defendant-Appellant.

No. 97-169.

Court of Appeal of Louisiana, Third Circuit.

June 4, 1997.
Rehearing Denied September 5, 1997.

*172 Bernard E. Boudreaux, Jr., Dist. Atty., R. Wayne Ussery, for State.

David Charles Willard, Lafayette, for Dwayne Alexander.

Before DOUCET, C.J., DECUIR, J., and BABINEAUX[1], J. Pro Tem.

DOUCET, Chief Judge.

On August 31, 1995, the defendant, Dwayne Alexander, was charged by bill of information with two counts of distribution of cocaine, violations of La.R.S. 40:967(A).[2] Thereafter, on September 5, 1995, the defendant waived formal arraignment and entered pleas of not guilty. Defendant was tried by a jury on March 18th and 19th, 1996, and was found guilty on both counts. The defendant was sentenced on May 24, 1996, to twentyone years at hard labor on each count, to run concurrently. Defendant now appeals his conviction and sentence, alleging two assignments of error.

FACTS:

The defendant sold crack cocaine to an undercover officer on two separate occasions on June 29, 1995.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, this appeal was reviewed for errors patent on the face of the record. No patent errors were found.

ASSIGNMENT OF ERROR NO. 1:

By this assignment, the defendant claims the State presented insufficient evidence to prove he committed the charged offenses, "as reflected by the jury's 10-2 verdict of guilty." In his brief, the defendant claims it was "scientifically impossible that the cocaine produced in State's Exhibits numbers one and two was the substance which came out of defendant-appellant's mouth ... [and] delivered to the undercover officer and confidential informant." The defendant argues the substance removed from his mouth was not the cocaine found in State's one and two since the State's own expert testified that cocaine would dissolve if left in the mouth. The defendant hypothesizes that the confidential informant, present during the transaction, placed a dry piece of crack cocaine into the evidence envelopes which were later analyzed to be cocaine. For the following reasons, we find the evidence was sufficient to prove the cocaine found in State's one and two was the same substance taken from the defendant's mouth on the night in question.

Dwight Wesley, a university police officer at the University of Southwestern Louisiana (USL), testified that he assisted in the undercover transactions at issue. Officer Wesley gave the following account of the first drug transaction:

At approximately early evening, 7:30, approximately, I approached a trailer and pulled to the side of the road. This young man in the black jacket was in front of the trailer. When I stopped the CI yelled to him, as to approach my vehicle. When he came to the vehicle he looked at me and he looked around. I asked him, `What's going on; can you help me, Man?' He said, `Well, what you need?' I said, `What you got?' I showed him a $20.00 bill in my hand and at that time he reached into his mouth, after looking around several more times, and pulled out a hard substance, approximately pea size and shape, believed to be crack cocaine.

The State noted for the record that Officer Wesley pointed to the defendant when he referred to the young man wearing a black jacket. Officer Wesley referred to State's Exhibits 9, 10 and 11 as photographs showing the defendant reaching into his mouth to *173 get the cocaine and handing it to the officer. These photos were still photographs developed from a video of the transaction. The video was recorded by a hidden camera in the back of the vehicle. When showed State's exhibit number one, Officer Wesley identified it as the packet in which he placed the first piece of crack cocaine he received from the defendant.

Officer Wesley further testified that he returned to the same area later that evening and obtained a second rock of cocaine from the defendant. According to Officer Wesley, defendant once again pulled the cocaine out of his mouth. When asked, Officer Wesley testified that he placed the second rock of cocaine in an evidence envelope which he identified as State's Exhibit two.

State's Exhibit four, a videotape of the transactions which took place on June 29, 1995, was admitted into evidence and played for the jury. Although unclear as to which transaction he is describing, Officer Wesley described the scene in the video as the defendant reaching into his mouth, removing a substance and reaching into the vehicle to give it to Officer Wesley. After viewing the video, we find Officer Wesley's description of the transaction to be accurate. The first videotaped transaction shows the defendant's fingers going up to his mouth. At that point, the defendant leaned behind the door panel of the vehicle. Therefore, the video does not show him actually retrieving the tendered substance from his mouth. However, it then shows the defendant reaching into the vehicle to give Officer Wesley something. As for the second transaction, the video is blurry but it does appear that the defendant again reached into his mouth to retrieve the tendered substance.

Finally, Officer Wesley testified he had no doubt that the substance removed from the defendant's mouth was the same substance he placed into the packages labeled State's Exhibits one and two.

On cross-examination, Officer Wesley testified that when he received the substance from the defendant, it was moist from being in defendant's mouth. When asked what affect human saliva would have on the cocaine, Officer Wesley stated, "Generally, through schools, drug schools, crack when held in the mouth will dry out the mouth and people holding crack will get foam on the side of their mouth instead of saliva." According to Officer Wesley, the substance would not dissolve because the crack dries out the mouth. Officer Wesley testified the Defendant appeared to have foam in his mouth for the first transaction.

Defendant relies heavily on the testimony of Ms. Laurette Rapp, a forensic chemist at the crime lab in New Iberia, who testified that if someone placed crack in their mouth and held it there, the crack would dissolve. Ms. Rapp followed by saying, "I mean over a period of time, yes. It would not be immediate."

Detective Todd Dalbor of the St. Martinville Police Department testified that prior to any drug transaction, he searches the confidential informant. Detective Dalbor testified he has the informants "practically undressed [sic] to make sure they don't have any narcotics or anything to that effect with them." When asked if he conducted such a search on the informant used in the present case, Detective Dalbor stated he did. Detective Dalbor did not specifically state whether the search revealed any narcotics. However, he did testify that following the search, he handed the CI neither money nor narcotics.

When taken as a whole, we find the evidence presented to the jury was sufficient for them to find the substance retrieved from the defendant's mouth and sold to the undercover officer on the night in question was the same substance found in State's Exhibits one and two, i.e., crack cocaine. Thus, we conclude this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2:

By this assignment, defendant claims the trial court imposed an excessive sentence in light of various mitigating factors. The trial court sentenced the defendant to twenty-one years at hard labor on each count, the sentences to run concurrently.

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Bluebook (online)
696 So. 2d 171, 1997 WL 292701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alexander-lactapp-1997.