State v. Babbitt

363 So. 2d 690
CourtSupreme Court of Louisiana
DecidedOctober 9, 1978
Docket61778
StatusPublished
Cited by29 cases

This text of 363 So. 2d 690 (State v. Babbitt) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Babbitt, 363 So. 2d 690 (La. 1978).

Opinion

363 So.2d 690 (1978)

STATE of Louisiana
v.
Francis BABBITT.

No. 61778.

Supreme Court of Louisiana.

October 9, 1978.
Rehearing Denied November 9, 1978.

*692 Michael S. Wolf, McCollister, McCleary, Fazio, Mixon & Holliday, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Francis B. Babbitt, Jr. was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:966A. Defendant waived a trial by jury and elected to be tried by the court. Prior to trial, defendant filed motions to discover the identity of the informant and to suppress evidence seized from his residence pursuant to a search warrant. After hearings, the trial judge denied the motions. Shortly after trial on the merits had commenced, the state amended the information to charge defendant with cultivation of marijuana. At this point in time, defendant entered a plea of guilty to the amended charge, expressly conditioned (and so accepted by the trial judge) upon his right to obtain appellate review of the pre-plea rulings of the trial judge denying his motions to discover the informant's identity and to suppress the evidence as well as refusing to permit him to ask certain questions of the affiant at the pretrial hearings. Defendant also contends that he reserved the right to obtain appellate review of the overruling of his objection to the state's amendment of the information at the time the guilty plea was entered. State v. Crosby, 338 So.2d 584 (La.1974). The trial judge suspended imposition of sentence for one year and placed defendant on probation under the supervision of the division of probation and parole. On appeal, defendant relies on twenty assignments of error for reversal of his conviction and sentence.

The assigned errors can be grouped under four basic contentions: the trial judge erred in (1) denying his motion to suppress evidence; (2) denying his motion to discover the informant's identity; (3) refusing to allow him to ask certain questions of the affiant at the pretrial hearings; and (4) overruling his objection to the state's amendment of the bill of information.

Two separate pretrial hearings were conducted. Carolyn Sue Carpenter and Ann Covington testified for the defense. Defendant testified on his own behalf. Officer Michael Ray Barnett testified for the state. Ms. Carpenter testified that "Moffett" was the name of her ex-husband and "Kaki" was her nickname. She testified that she knew defendant but never resided or lived at his residence. She also accounted for her whereabouts on Friday, June 25, 1976. She denied that she was ever in possession of any marijuana at defendant's residence. She also testified that she had not been at defendant's residence for about two and a half weeks prior to June 25, 1976. She admitted that she had been to his residence since that date. She also admitted that she was on probation for having been convicted of possession with intent to distribute marijuana. Ms. Covington testified that she worked with Ms. Carpenter and was a friend of hers. Her testimony corroborated that of Ms. Carpenter as to the latter's activities on June 25, 1976. Defendant denied that Ms. Carpenter had ever lived or resided with him and confirmed that she had not been at his residence for some two and a half weeks prior to June 25, 1976. He specifically denied that Ms. Carpenter had ever possessed any marijuana while at his house.

Officer Barnett, who was in charge of the narcotics section of the sheriff's office, testified *693 that he had procured a warrant to search defendant's residence on Saturday, June 26, 1976. He stated that the information in the affidavit supporting the issuance of the warrant was secured from a reliable confidential informant who had worked with him for a number of years but less frequently during the past several years. He stated that he placed "on or about June 25, 1976" in the affidavit as the date the informant observed Carolyn "Kaki" Moffett in possession of the marijuana at defendant's residence, rather than the exact date, in order to protect the identity of the informant. However, he noted that the exact date was either a day or two before or after June 25, 1976. He further stated that the informant was paid for his information on a per case basis. Officer Barnett admitted that he did not corroborate the information received from the informant as to the occupants of the residence by checking the utility records or license plates of cars located in the vicinity of the residence in order to confirm who lived there. His explanation was that, since the residence was the last house on a dead-end road, he was afraid of being observed. Also, the information was received on Saturday and his contact at the utility company did not work on Saturdays. During the course of his testimony, state objections to defense questions which might have led to the identity of the informant were sustained by the trial judge.

The record reflects that a warrant was issued to search the residence of defendant on June 26, 1976. The affidavit reciting the facts establishing probable cause for the issuance of the search warrant was executed by Officer Michael Ray Barnett. The affidavit contains the following representations:

. . . That probable cause does exist for the issuance of a search warrant authorizing the search of a residence occupied by Carolyn Moffett, also known as `Kaki,' and a white male known as `Frances,'. . . where a quantity of controlled, dangerous substance, to wit: marijuana is believed to be secreted or concealed, and such probable cause is based upon the following: Affiant informs the Court that on this date, being June 26, 1976, affiant was contacted by a confidential and reliable informant who has been working under the direct supervision of affiant for the past three (3) years and who has provided information which has led directly to the arrest and convictions of at least twenty (20) persons and the seizure of contraband drugs in East Baton Rouge Parish, . . . contacted affiant and advised that he, being said informant, had occasion to be in the residence of Carolyn `Kaki' Moffett and a white male known only as `Frances'. . .
Affiant further informs the court that on the above occasion, being on or about June 25, 1976, the above Carolyn Moffett was in possession of pound quantities of green vegetable material contained in brown paper bags which the above Carolyn Moffett identified to be marijuana.
Affiant further informs the Court that the above Carolyn Moffett was arrested by the East Baton Rouge Parish Sheriff's Narcotics Division in 1970 for possession of L.S.D., codine, and marijuana, and again arrested by affiant in 1972 for possession of marijuana and was convicted for same.

First, defendant contends the trial judge erred in denying the motion to suppress the evidence. In support of this contention, he seeks to impeach the veracity of the affidavit supporting the issuance of the search warrant.

It is well established that the credibility of the affiant's informant or the correctness of the information furnished by the informant may not be attacked on a motion to suppress. State v. Tassin, 343 So.2d 681 (La.1977) (on rehearing); State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Robinson
63 So. 3d 1113 (Louisiana Court of Appeal, 2011)
State v. Cox
26 So. 3d 929 (Louisiana Court of Appeal, 2009)
State v. Bernard
26 So. 3d 181 (Louisiana Court of Appeal, 2009)
State v. McCartney
684 So. 2d 416 (Louisiana Court of Appeal, 1996)
State v. Becnel
668 So. 2d 1281 (Louisiana Court of Appeal, 1996)
State v. Gaines
636 So. 2d 961 (Louisiana Court of Appeal, 1994)
State v. Gamble
631 So. 2d 586 (Louisiana Court of Appeal, 1994)
State v. Walker
627 So. 2d 785 (Louisiana Court of Appeal, 1993)
State v. Hall
549 So. 2d 373 (Louisiana Court of Appeal, 1989)
State v. Martin
543 So. 2d 1020 (Louisiana Court of Appeal, 1989)
State v. Clouatre
482 So. 2d 106 (Louisiana Court of Appeal, 1986)
State v. Montegut
471 So. 2d 286 (Louisiana Court of Appeal, 1985)
State v. Humphries
463 So. 2d 804 (Louisiana Court of Appeal, 1985)
State v. Webb
432 So. 2d 362 (Louisiana Court of Appeal, 1983)
State v. Oliver
430 So. 2d 650 (Supreme Court of Louisiana, 1983)
People v. Redmond
449 N.E.2d 533 (Appellate Court of Illinois, 1983)
State v. Rivers
420 So. 2d 1128 (Supreme Court of Louisiana, 1982)
United States v. Dorfman
542 F. Supp. 345 (N.D. Illinois, 1982)
State v. Brannon
414 So. 2d 335 (Supreme Court of Louisiana, 1982)
State v. Cook
404 So. 2d 1210 (Supreme Court of Louisiana, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
363 So. 2d 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-babbitt-la-1978.