State v. Cann

494 So. 2d 1263, 1986 La. App. LEXIS 7667
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1986
DocketNo. 17953-KA
StatusPublished
Cited by3 cases

This text of 494 So. 2d 1263 (State v. Cann) 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. Cann, 494 So. 2d 1263, 1986 La. App. LEXIS 7667 (La. Ct. App. 1986).

Opinions

SEXTON, Judge.

The defendant, Donells Cann, was convicted by a jury of the crime of distribution of marijuana and sentenced to five years at hard labor. He now appeals arguing four assigned errors. Finding no merit in any of these contentions, we affirm the conviction.

Because defendant’s Assignment of Error Number Three challenges the sufficiency of evidence under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and since the evidence in this case is primarily circumstantial, we find it necessary to discuss the facts in some detail.

FACTS

On September 11, 1983, appellant was operating a motorcycle on South Grand Street in the city of Monroe. Appellant passed another vehicle while in a no passing zone and was stopped by a deputy sheriff. The deputy issued a citation and ordered appellant to leave the motorcycle parked and get someone else to drive it away as appellant did not have a driver’s license on his person. Then, the deputy left.

As appellant was walking away from the motorcycle, Shane Frey, age ten at the time, told appellant that he would “watch his motorcycle for him.” Appellant returned to Shane and offered him $10 to take a set of saddlebags off of the motorcycle and take them to appellant at a place Shane described as being in back of a nearby apartment project.

Shane Frey lives in The Johnny Robinson Youth Fellowship Boys’ Home located across the street from where appellant was stopped. The apartment project where Shane and appellant were to meet is located next to the Boys’ Home.

[1265]*1265Once appellant left, Shane took the saddlebags and the $10 and started for the apartments. Knowing that the apartment project was off-limits to him, however, the boy instead took the money and saddlebags to Johnny Robinson, administrator of the Boys’ Home and guardian of Shane. After having Shane’s story related to him, Mr. Robinson opened the bags and found in each side thereof what later proved to be a one-half pound package of marijuana, or one pound in all. Immediately, Mr. Robinson called the police.

Before the police arrived, Mr. Robinson observed appellant riding a bicycle from the apartments to the Boys’ Home. Mr. Robinson said that appellant stopped about 30 feet away and demanded that Robinson give him the saddlebags. Mr. Robinson refused and told appellant that he was giving the saddlebags to the police. Appellant threatened to beat up Mr. Robinson and left. Shortly thereafter, appellant returned and threatened to burn down the Boys’ Home if he did not get the saddlebags back. Appellant left and Sergeant John Pipes of the Monroe Police Department arrived.

Upon arrival, Sergeant Pipes obtained the saddlebags and the $10 from Mr. Robinson. Sergeant Pipes looked into the saddlebags and confirmed that it contained a substance appearing to be marijuana in clear plastic bags. Sergeant Pipes did not have a search warrant.

After further investigation, the police determined that the motorcycle was registered in the name of Gregory Keller. Mr. Keller had purchased the motorcycle for Freddie Cann, appellant’s brother, because Freddie Cann’s credit rating was bad. Freddie Cann kept the motorcycle and paid the notes. Mr. Keller testified that he never knew appellant to ride the motorcycle and that the saddlebags were always on the motorcycle and belonged to Freddie Cann. The police informed Mr. Keller that they would release the motorcycle once appellant came to the police station.

After turning himself in and receiving Miranda warnings, the appellant spoke to the officers briefly before asking for an attorney. During that time, appellant confirmed that he gave Shane $10 to watch the motorcycle.

Appellant testified that he drove his sports car in the company of his girlfriend to the family grocery located at 908 Bethune Street. His brother, Freddie Cann, was operating the store at that time. Appellant stated that he had never ridden the motorcycle before the day in question. He testified that the saddlebags at issue were on the motorcycle when he got on it. He also stated that his brother had gotten them from his cousin who had obtained them “in California.”

He further testified that he rode the motorcycle and then was proceeding to his girlfriend’s house which was near the previously mentioned apartment project. It is apparent from appellant’s testimony that his brother was to drive defendant’s girlfriend in the sports car to another residence in that immediate neighborhood and that he and his brother were to swap vehicles in that area.

Appellant stated that he never opened or put anything in the saddlebags. Mr. Keller, who was at the store when appellant arrived, corroborated appellant’s testimony that appellant did not handle or open or otherwise look into the saddlebag when he mounted the motorcycle and drove away.

As we appreciate the import of appellant’s testimony, it is that after arriving at his girlfriend’s house on foot, he borrowed a bicycle and proceeded to attempt to locate his brother. The next event is unclear from the record but the defendant obviously arrived at the Boys’ Home shortly after mounting the bicycle.

Appellant admitted he paid the boy $10 to watch the motorcycle (that was the smallest denomination bill he had), but denied telling the boy to do anything with the saddlebags on the parked motorcycle. The appellant further admitted telling Mr. Robinson that he would burn the house down, but claimed he did so only because Mr. Robinson took the saddlebags from his [1266]*1266brother’s motorcycle and he, appellant, felt responsible. Appellant explained that he threatened Mr. Robinson because he thought that the boy had wrongly taken the saddlebags from the motorcycle he had paid the boy to watch. Appellant denied that Mr. Robinson told him about marijuana being in the bag or about the telephone call to the police.

Appellant also admitted at trial that he had previously been convicted of possession of marijuana, driving while intoxicated, and second degree felony possession of marijuana in Texas.

We resolve all conflicts in the testimony in the light most favorable to the state. Jackson v. Virginia, supra.

ASSIGNMENTS OF ERROR NUMBERS 1 and 2

The appellant assigns as his first error the district court’s denial of his motion to suppress physical evidence. We find that the trial court did not err in denying defendant’s motion to suppress. State v. Gentry, 462 So.2d 624 (La.1985); State v. Coleman, 466 So.2d 68 (La.App. 2d Cir.1985), writ denied 467 So.2d 542 (La.1985); State v. McCabe, 383 So.2d 380 (La.1980); State v. Hutchinson, 349 So.2d 1252 (La.1977).

In his second assignment of error, appellant complains that the trial court erred in admitting the state’s Exhibits 1-5 due to a break in the chain of custody. We find the trial court did not err in admitting the state’s Exhibits 1-5. State v. Sam, 412 So.2d 1082 (La.1982), appeal after remand 478 So.2d 769 (La.App. 3d Cir.1985); State v. Gordy, 380 So.2d 1347 (La.1980). Defendant did not object to the introduction of the Miranda rights waiver form. LSA-C. Cr.P. Art. 841.

ASSIGNMENT OF ERROR NUMBER 3

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Related

State v. Broussard
532 So. 2d 208 (Louisiana Court of Appeal, 1988)
State v. Morris
508 So. 2d 608 (Louisiana Court of Appeal, 1987)
State v. Cann
501 So. 2d 228 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
494 So. 2d 1263, 1986 La. App. LEXIS 7667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cann-lactapp-1986.