State v. Davis

726 So. 2d 500, 1999 WL 31230
CourtLouisiana Court of Appeal
DecidedJanuary 26, 1999
DocketNo. 98-KA-365
StatusPublished
Cited by2 cases

This text of 726 So. 2d 500 (State v. Davis) 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. Davis, 726 So. 2d 500, 1999 WL 31230 (La. Ct. App. 1999).

Opinion

_JipALEY, Judge.

Defendant James Davis appeals his conviction of distribution of cocaine, a violation of LSA-R.S. 40:967 A. A jury of twelve found defendant guilty as charged. We affirm.

On appeal, Davis argues five assignments of error:

1. The trial court erred in denying defendant’s Motion to Suppress the photocopy of $20 bills after the hearing of defendant’s Motion to Suppress the Evidence.
2. The trial court erred in referring to the defendant as “offender” during his instructions to the jury.
3. The trial court erred in allowing the prosecutor, in his closing argument, to misstate the jury’s function and imply a connection between the police, the District Attorney, and the jury.
4. The trial court erred in failing to protect the defendant’s right to effective assistance of counsel.
5. Any and all errors patent on the face of the record.

kFACTS

The following facts were developed from trial testimony.

Wilton DeClouet, a narcotics agent with the Jefferson Parish Sheriffs Office, testified regarding an undercover operation he was involved with on September 24, 1991, in the south Causeway area of Jefferson Parish. Agent DeClouet told the jury that on the morning of September 24,1991, he was given “pre-recorded” money, money that was photo-copied in order to record serial numbers, in order to attempt to make a drug transaction. Agent DeClouet told the jury that on that date he was riding in an undercover vehicle and saw a man, Louis Roberson, whom he recognized from a previous encounter. Agent DeClouet asked Mr. Roberson if [503]*503he “had anything.” Mr. Roberson said he did not, but went to the area where the defendant was standing. Agent DeClouet testified that he saw Mr. Roberson get “something” from the defendant, which Mr. Roberson then came and gave to Agent De-Clouet. The “something” turned out to be 7 rocks of crack cocaine. Agent DeClouet then gave Mr. Roberson the $100 in marked bills, which he saw Mr. Roberson hand over to the defendant. At that time, according to a prearranged signal, Agent Steve Nelson and Lieutenant John Thevenot came and arrested Mr. Roberson and the defendant, James Davis.

Lieutenant John Thevenot of the Jefferson Parish Sheriffs Office told the jury that at 12:45 p.m. on September 24, 1991, he met with undercover agent DeClouet and Agent Steve Nelson to begin an undercover narcotics operation. He testified that that morning Agent Nelson had photocopied five $20 bills, had signed and initialed the photocopy, and had given the bills to Agent DeClouet. Agent DeClouet was equipped with a transmitter so that Agent Nelson and Lt. Theven-ot would be able to hear any transactions. Lt. Thevenot told the jury that on September 24, 1991, ^according to a pre-arranged signal, he and Agent Nelson went to the area where Agent DeClouet had just received narcotics from Mr. Roberson. Lt. Thevenot testified that he simulated the arrest of Agent De-Clouet from his vehicle and asked him to point out the individuals involved in the transaction. Agent DeClouet pointed out the defendant and Mr. Roberson.

Agent Steve Nelson testified that upon arrival at the scene of the “transaction” he immediately apprehended a subject, the defendant, who was then described by Agent DeClouet as being involved in the transaction. Agent Nelson told the jury that, after the defendant was positively identified by Agent DeClouet, he placed the defendant under arrest and searched him. Upon searching the defendant, Agent Nelson discovered a sum of money, including the bills which matched the serial numbers of the bills he had earlier photocopied. Agent Nelson also told the jury that he took custody of the cocaine handed to Agent DeClouet. Agents Nelson and DeClouet both testified that the defendant was seen and arrested on the street.

Elmore Sheperd, a forensic chemist, testified that he tested the rock like objects in evidence and found them to contain cocaine.

Madeline Jackson and Stanford Brown testified on behalf of the defendant. Ms. Jackson testified that on the afternoon of September 24, 1991 she saw the defendant in the Skylark Lounge playing pool. She told the jury that she saw a man walk up to the defendant and “pay him money,” and soon after saw the defendant get arrested in the lounge. Mr. Brown, a bartender at the Skylark Lounge, likewise told the jury that on the afternoon of September 24, 1991 he saw the defendant searched and handcuffed by police in the lounge against the pool table.

Based on the foregoing testimony and evidence, the jury found the defendant guilty as charged.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant asserts that the Honorable Court below erred in denying appellant’s motion to suppress the photocopy of the $20.00 bills (S — 4 at trial) after the hearing of Appellant’s Motion to Suppress the Evidence on Thursday, September 10,1992.

The defendant argues that the photocopy evidence tying the defendant to the crime in this ease was seized prior to the officer’s having probable cause to arrest the defendant, and accordingly should have been suppressed by the trial court.

The Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543. A search conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Moreno, 619 So.2d 62 (La.1993); State v. Lassere, 95-1009, p. 8 (La. App. 5 Cir. 10/1/96), 683 So.2d 812, 817, writ denied, 96-2655 (La.4/18/97), 692 So.2d 445. [504]*504When the constitutionality of a warrantless search is at issue on a motion to suppress, the state bears the burden of affirmatively showing that the search was justified under one of the exceptions to the warrant requirement. State v. Diaz-Rubio, 615 So.2d 1124, 1127 (La.App. 5 Cir.1993), writ denied, 93-1010 (La.9/30/94), 642 So.2d 866. One such exception is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Green, 97-702 (La.App. 5 Cir. 12/30/97), 706 So.2d 536. An arrest is lawful when it is based on probable cause. State v. Raheem, 464 So.2d 293, 296 (La.1985). Conversely, an arrest without probable cause is illegal and the seizure of evidence pursuant thereto is also illegal. State v. Simmons, 95-309, p. 6 (La.App. 5 Cir. 10/18/95), 663 So.2d 790, 794.

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which be has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Scales, 93-2003, p. 6 (La.5/22/95), 655 So.2d 1326, 1331, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).

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Bluebook (online)
726 So. 2d 500, 1999 WL 31230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-lactapp-1999.