State v. Christopher

561 So. 2d 935, 1990 WL 60950
CourtLouisiana Court of Appeal
DecidedMay 9, 1990
Docket21301-KA
StatusPublished
Cited by15 cases

This text of 561 So. 2d 935 (State v. Christopher) 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. Christopher, 561 So. 2d 935, 1990 WL 60950 (La. Ct. App. 1990).

Opinion

561 So.2d 935 (1990)

STATE of Louisiana, Appellee,
v.
David M. CHRISTOPHER, Appellant.

No. 21301-KA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 1990.
Rehearing Denied June 14, 1990.

*936 Hunter, Scott, Blue, Johnson & Ross by Willie Hunter, Jr., Monroe, for appellant.

William Guste, Atty. Gen., Baton Rouge, John Blake, Dist. Atty., John Michael Ruddick, Asst. Dist. Atty., Haynesville, for appellee.

Before FRED W. JONES, Jr., LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, David M. Christopher, age 36, was charged in separate bills of information with one count of possession of marijuana and one count of possession of cocaine, violations of LSA-R.S. 40:966 and 40:967, respectively. By means of a writ grant on March 9, 1989, this court reversed his conviction of possession of marijuana and ordered an acquittal entered as to that charge (No. 20,830-KW). On March 23, 1989, a six-person jury found defendant guilty of possession of cocaine. He was later sentenced to two years imprisonment at hard labor and fined $2,000, with the imprisonment being suspended and one year of supervised probation imposed. He now appeals, presenting four assignments of error. Finding those to lack merit, we affirm.

FACTS

In Homer, Louisiana, on July 24, 1988, about midnight, Claiborne Parish Deputy Sheriff George Shirey, noting red flashing lights around the license plate of a pickup truck, stopped defendant for a violation of LSA-R.S. 32:327(C). Later, Deputy Sheriff Steve Williams and Police Officers James Spillers and William Lafitte also arrived on the scene. When Deputy Shirey questioned defendant as to whether he had any weapons in the vehicle, he responded affirmatively and two guns were recovered.

*937 While defendant removed a pistol from the glove compartment, Deputy Shirey noticed a green vegetable matter, which appeared to be marijuana, on the seat and floorboard of the truck. At the same time, the deputy observed a white rock-like substance in the driver's seat. Defendant thereafter gave his consent for a search of the pickup, and the officers seized both the marijuana and the rock-like substance, later determined to be cocaine. They also recovered a partially burned marijuana cigarette from inside a stereo speaker located behind the driver's seat. Defendant subsequently was charged with possession of both marijuana and cocaine.

DISCUSSION

Assignment of Error No. One

In the first assignment of error, defendant argues that the trial court erred in modifying its ruling concerning a motion in limine.

Defendant filed the motion in limine to prohibit, during the present trial, any reference to his alleged possession of the marijuana. After initially granting the motion, the trial court later modified its ruling, stating that, although the substance could not be termed marijuana, the state and its witnesses could refer to "vegetable matter" allegedly seen on the seat of defendant's truck. It is now argued that this ruling deprived defendant of a fair trial.

Of course, the term "vegetable matter" is synonymous with marijuana when used in an affidavit. State v. Kaercher, 362 So.2d 754 (La.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). And, it is possible that the references to vegetable matter/marijuana in the present proceedings were prejudicial to defendant. Yet, evidence of the contemporaneous possession of a second controlled dangerous substance is often independently relevant.

In State v. Strange, 334 So.2d 182 (La. 1976), the defendant objected to evidence of his possession of marijuana during his trial for possession of amphetamines. The Louisiana Supreme Court held that, as possession of the two drugs occurred simultaneously, evidence of possession of marijuana was relevant to the issue of the defendant's guilty knowledge or intent to possess the amphetamines. Further, in State v. Clift, 339 So.2d 755 (La.1976), the defendant objected to evidence of possession of marijuana at his trial for possession of heroin. Actually, he had thrown marijuana to the ground while running from law enforcement officials, leading to his arrest and the subsequent discovery of heroin in his possession. Our Supreme Court found the marijuana evidence relevant because it allowed the state to present the entire criminal act, which was termed an unbroken chain, to the jury.

Consistent with this jurisprudence, in the present case references to the marijuana were relevant to the issue of defendant's guilty knowledge, as well as permitting presentation of the entire criminal act.

Moreover, in his opening statement, defense counsel argued that law enforcement officials had no reason to search defendant's vehicle. Although the propriety of the search would seem irrelevant to the question of whether defendant in fact possessed cocaine, defendant nevertheless chose to bring this issue before the jury. The assertion having been made, it was only fair that the state be given the opportunity to rebut it. Therefore, since the sighting of marijuana on the seat of the vehicle constituted the initial step in the process which resulted in the seizure of the cocaine, reference to the vegetable matter obviously became relevant. Defendant, having brought this irrelevant issue before the jury, should not be heard to complain on appeal that his trial strategy backfired.

Assignment of Error No. Two

By this assignment, defendant claims the trial court erred in allowing Exhibit S-2, the white rock-like substance, to be identified as cocaine by Jim Goebel, a forensic chemistry expert employed at the North Louisiana Crime Lab. Secondly, defendant asserts error in the trial court's refusal to exclude Exhibit S-5, the certified laboratory report, due to the state's alleged *938 failure to comply with discovery obligations.

Regarding tests performed on S-2, defendant contends that Mr. Goebel's failures, to run a blank on the mass spectrometer, to compare the machine's printout with a known spectrum of cocaine, and to clean the device prior to its use, should have precluded any expression of test results. Essentially, defendant's argument is that there should be explicit, uniform procedures used in this type of chemical testing and that the state should be required to show strict compliance with these procedures before the test results are admissible.

Defendant's approach would, in effect, extend by analogy the DWI cases dealing with testing methods and procedures. See, for example, State v. Rowell, 517 So.2d 799 (La.1988). There exists, however, a substantial distinction between testing for alcohol intoxication levels and the chemical testing involved in the present case. As part of their rationale, Rowell and the other DWI cases repeatedly stress that detailed and extensive testing safeguards are necessary in DWI cases since the results of such tests, when conducted in accordance with approved techniques, give rise to a statutory presumption of intoxication. In contrast, while pursuant to LSA-R.S. 15:500 a crime lab certificate may serve as prima facie proof of the facts shown therein, a defendant nevertheless may challenge the accuracy of the certificate's findings by subpoenaing the person who performed the examination. In such a case, the certificate is no longer prima facie proof of its contents. LSA-R.S. 15:501. Compared to the analysis of bodily substances as approved by the Department of Public Safety per LSA-R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
561 So. 2d 935, 1990 WL 60950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-christopher-lactapp-1990.