State v. Broussard

532 So. 2d 208, 1988 La. App. LEXIS 2006, 1988 WL 103142
Louisiana Court of Appeal·Decided October 5, 1988·No. No. CR88-58·Published·Cited by 3 cases

Opinion

DOMENGEAUX, Judge.

The defendant, Gregory Garrett Broussard, was charged by bill of information with three counts of distribution of cocaine; a violation of La.R.S. 40:967. The defendant was found guilty as charged by a jury of twelve and sentenced to serve six and one-half years (6V2) at hard labor for each count, to run concurrently. The defendant has appealed his conviction and sentence based on four assignments of error. Assignment of Error No. 4 has not been briefed and is therefore, considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

FACTS

In the months of August and September, 1987, Terry Langley, a narcotics officer with the Iberia Parish Sheriff’s Office, was participating in an undercover narcotics operation in New Iberia. A confidential police informant advised Officer Langley that a certain McKinley Polk was selling cocaine. The informant introduced Officer Langley to Polk. When the subject of narcotics arose in a conversation, Polk advised Langley that an acquaintance possessed some cocaine which he would sell.

On August 25, 1987, Polk directed Langley to a house occupied by the defendant, Gregory Garrett Broussard. Polk, accompanied by Langley, knocked at the rear door of the residence and asked the defendant to sell one-half gram of cocaine. When the defendant asked Langley to identify himself Langley introduced himself as “Zeno”. The defendant entered his house and returned with a package which was handed to Polk who, in turn handed it to Langley. Langley then handed $65.00, the agreed to price, to Polk who paid the defendant. After the defendant admonished Polk for bringing strangers to his house, he shut the door. On two later occasions, Langley accompanied Polk to the defendant’s residence and purchased cocaine from the defendant. On these occasions, the defendant handed the package containing cocaine directly to Langley and accepted money from Langley.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that his conviction should be reversed since one of the jurors was functionally illiterate and therefore not qualified to serve under La.C.Cr.P. art. 401.

Prior to voir dire, the Trial Judge addressed the jury pool and questioned the potential jurors, en masse, concerning the general qualifications set forth in La.C. Cr.P. art. 401 and specifically asked whether each juror could read, write and speak the English language. An individual who was eventually selected to serve on the jury did not respond that he was, in fact, illiterate. Apparently some time after the trial, the defense counsel learned of this juror’s illiteracy and moved for a new trial pursuant to La.C.Cr.P. art. 851(4). The [210]*210Trial Judge denied this motion and the defendant has appealed.

On motion of the defendant, a new trial shall be granted whenever the defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of a reasonable diligence, was not discovered prior to the verdict or judgment. La.C.Cr.P. art. 851(4). An accused must have been prejudiced by a juror’s inability to read or write the English language before he will be granted a mistrial. State v. Nicholas, 312 So.2d 856 (La.1975); State v. Murphy, 465 So.2d 811 (La.App. 2nd Cir.1985). Similarity, the granting of a new trial must rest upon a finding of prejudice to the accused. State v. Sharp, 338 So.2d 654 (La.1976).

In Nicholas, supra, and Murphy, supra, the defendants motioned for a new trial after it was learned that various jurors were illiterate. The motions were denied because the defendants had not been prejudiced by the jurors’ illiteracy since the written exhibits had been read to the jury and no written exhibits had been taken into the jury deliberation room. In this case, there were no written exhibits other than three “Request for Scientific Analysis” sheets required by the Acadiana Criminalis-tics Laboratory that was filled out by Terry Langley, the undercover officer who bought the cocaine. A small plastic packet containing cocaine was attached to each sheet. At the trial, Officer Langley identified his handwriting and testified as to what was written on the page. As in Nicholas, the illiterate juror heard this evidence when it was read at the trial. The defendant suffered no prejudice by this juror’s illiteracy. Hence, the Trial Judge committed no error in denying the defendant’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 2

The defendant next contends that the State failed to prove each essential element of the crime beyond a reasonable doubt, in conflict with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).1 Initially, the defendant argues that since the undercover officer’s testimony regarding dogs in the defendant’s yard differed from the testimony of other witnesses, his testimony was not credible. The defendant also contends that the evidence did not conclusively establish that Polk, the man who accompanied the undercover officer, had not tampered with the evidence and thus, the chain of custody of the substance ultimately identified to be cocaine, is suspect.

When reviewing the sufficiency of the evidence to support a conviction, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant to have committed the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Edwards, 400 So.2d 1370 (La.1981). To convict the defendant in the instant case, the prosecution must have established that the defendant knowingly or intentionally delivered or physically transferred cocaine. La.R.S. 40:961(9), (13). Additionally, the State must show that the defendant had knowledge of the contents of the package when it was transferred. State v. Cann, 494 So.2d 1263 (La.App. 2nd Cir.1986), writ denied, 501 So.2d 228 (La.1987).

Evidence of the transfer of cocaine consisted of the testimony of the undercover agent, Terry Langley, who, on three occasions obtained the substance from the defendant. The State also presented evidence of the packages’ chain of custody and the scientific analysis which determined that the substances were cocaine. [211]*211Additionally, an acquaintance of the defendant testified that he had been in the defendant’s residence when the defendant initially met with the undercover officer and Polk, although this witness did not observe the exchange. While the jury’s guilty verdicts indicate that the jury accepted the testimony of the undercover officer, the defendant asserts that Officer Langley was not credible because he testified that he saw no dogs in the defendant’s yard while another witness testified that the defendant had three dogs in his yard.

The assessment of what weight to be given to conflicting evidence is the determination which rests on the sound discretion of the trier of fact, which in this case, was the jury. State v. Klar, 400 So.2d 610 (La.1981); State v. Williams, 464 So.2d 443 (La.App. 1st Cir.1985). In the resolution of conflicting testimony, a juror may reject or accept, in whole or in part, the testimony of any witness. State v. Williams, supra. The jury’s acceptance of Officer Langley’s testimony is within their discretion and will not be disturbed on appeal.

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State v. Broussard, 532 So. 2d 208, 1988 La. App. LEXIS 2006, 1988 WL 103142 (La. Ct. App. 1988).

532 So. 2d 208 (State v. Broussard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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