State v. Barnes

790 So. 2d 651, 2000 La.App. 4 Cir. 2127, 2001 La. App. LEXIS 1673, 2001 WL 670474
CourtLouisiana Court of Appeal
DecidedMay 23, 2001
DocketNo. 2000-KA-2127
StatusPublished
Cited by1 cases

This text of 790 So. 2d 651 (State v. Barnes) 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. Barnes, 790 So. 2d 651, 2000 La.App. 4 Cir. 2127, 2001 La. App. LEXIS 1673, 2001 WL 670474 (La. Ct. App. 2001).

Opinion

| .MURRAY, Judge.

Defendant, Willie Barnes, appeals his conviction of attempted possession of heroin and his subsequent adjudication and sentencing as a second felony offender. For the reasons that follow, we reverse defendant’s conviction and sentence.

On June 14, 1999, defendant was charged with possession of heroin, a violation of La. R.S. 40:966. He pled not guilty, and the trial court denied his motion to suppress the evidence. Following a mistrial due to a hung jury, defendant was retried, and on June 12, 2000, he was convicted by a twelve-person jury of attempted possession of heroin. After a multiple bill and sentencing hearing, the trial court found defendant to be a second [653]*653offender and sentenced him to five years at hard labor without benefit of parole, probation, or suspension.1 Defendant appeals his conviction and sentence on the sole basis that the trial court erroneously admitted irrelevant and prejudicial photographs.

| .FACTS:

On March 18, 1999, New Orleans police officers Brian Lampard and David Carter were on proactive patrol in a marked police car, investigating a hotline complaint reporting narcotics activity in the 2100 block of Andry Street. The officers observed the defendant standing astride a black mountain bike in front of 2124 Andry Street. When he saw the officers, defendant retrieved an object from his right pants pocket, discarded it, and ran into the residence at 2124 Andry Street. Believing the defendant had just discarded narcotics, the officers stopped their vehicle. Officer Lampard retrieved the object from the ground where defendant had dropped it, while Officer Carter pursued the defendant. Upon • discovering that the object was a tin foil packet containing what appeared to be heroin, Officer Lampard ran to the backyard of the house in an attempt to intercept the defendant, whom he heard running through the house. Officer Carter was unable to follow the defendant into the house because the defendant had slammed and locked the iron gate behind him. Officer Lampard was unsuccessful in apprehending the defendant, who had apparently exited the house before the officer reached the backyard. In the meantime, Officer Carter knocked on the front door and spoke to the resident, Willie Wilson, who said he was the defendant’s father. Officer Lampard returned to the front of the house, and Mr.: Wilson allowed the officers to search the defendant’s bedroom. In the bedroom, the officers found three photographs of defendant. Mr. Wilson gave the officers the defendant’s name and date of birth, which the officers used to obtain an arrest warrant for the defendant. _J¿According to the testimony of defendant’s father, which was uncontradicted at trial, the defendant later turned himself in.

Officer Harry O’Neal, a criminalist, testified that the substance in the foil packet tested positive for heroin.

Wesley Barnes, the defendant’s younger brother, testified that he was outside in his front yard when the police pulled up. He said one of the officers got out of the vehicle and searched a truck that was parked in front of the house. The witness said the officer was wearing rubber gloves, and was moving some tires around in the back of the truck. He saw the officer put something in the back of the truck and then take something out. When the officers attempted to question his brother, who had pulled up in front of the house on his bike, the defendant ignored them and went into the house; the police followed him. Wesley Barnes said, he was facing his brother, but did not see him throw anything down on the ground.

Willie Wilson, the defendant’s father, stated that the officers told him only that they wanted to enter the house to look for the person who had just run through it. He said he consented to the search because the officers told him if he did not, they would get a search warrant and mess .up the house. He admitted having told the officers that if there were drugs in the house, he wanted them out. He also ad-[654]*654raitted having prior felony convictions, and stated that the defendant had turned himself in because he was afraid of the police.

I .ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends that he was unfairly prejudiced by the admission into evidence of two photographs, which the police took from his bedroom. One of the photographs depicts the defendant standing outdoors holding a rifle; the other shows defendant with a handful of money spread out like a fan. • The State contends that these photographs were relevant to prove the defendant’s identity. Defendant argues that the photographs were irrelevant because his identity was not at issue; alternatively, he argues that the photographs should have been excluded because their probative value was clearly outweighed by their highly prejudicial nature.2 Finally, defendant argues, as he did at trial,, that the photographs should have been cropped to exclude the prejudicial elements before being admitted.3

According .to the La. C.E. art. 402, all relevant evidence is admissible, and evidence which is not relevant is not admissible. La. C.E. art. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Finally, evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by | Kconsiderations of undue delay, or waste of time.” La. C.E. art. 403. In the case of photographic evidence, any photograph that illustrates any fact, sheds light upon any fact or issue in the case, or is relevant to describe the person, place or thing depicted is generally admissible, provided its probative value outweighs any prejudicial effect. State v. Jackson, 00-1014, p. 11 (La.App. 5 Cir. 12/13/00), 778 So.2d 23, 31, citing State v. Glynn, 94-0332 (La.App. 1 Cir. 4/7/95), 653 So.2d 1288.

In the instant case, identity was not at issue; the defendant did not dispute that he was the person who ran into the residence at 2124 Andry, that he lived at that residence, or that he was the person depicted in the photographs found in his bedroom. His younger brother testified that the defendant went into the house and was pursued by the police. The defendant’s father showed the . police officers into the defendant’s bedroom, acknowledged that the pictures found there were of his son, and gave the officers the defendant’s name and date of birth. What was disputed by the defense, however, was the officers’ assertion that the defendant had dropped the tin foil package of heroin picked up by Officer Lampard. Officer Lampard identified the defendant in court as the person he saw drop the object; the officer stated that he made eye contact with the defendant, at which point the defendant began moving, and the officer watched him reach into his pocket and discard the object, later determined to be [655]*655heroin. The defendant’s younger brother, however, testified that he did not see the defendant throw anything to the ground, and the defense attorney’s cross examination of Officer Lampard attempted to | fishow that the object he picked up might not have been the same one he saw defendant throw down.

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828 So. 2d 1185 (Louisiana Court of Appeal, 2002)

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Bluebook (online)
790 So. 2d 651, 2000 La.App. 4 Cir. 2127, 2001 La. App. LEXIS 1673, 2001 WL 670474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnes-lactapp-2001.