State v. Drummer

750 So. 2d 360, 1999 WL 1257377
CourtLouisiana Court of Appeal
DecidedDecember 22, 1999
Docket99-KA-0858
StatusPublished
Cited by5 cases

This text of 750 So. 2d 360 (State v. Drummer) 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. Drummer, 750 So. 2d 360, 1999 WL 1257377 (La. Ct. App. 1999).

Opinion

750 So.2d 360 (1999)

STATE of Louisiana
v.
Clifton DRUMMER.

No. 99-KA-0858.

Court of Appeal of Louisiana, Fourth Circuit.

December 22, 1999.

*362 Harry F. Connick, District Attorney, Jane Louise Beebe, Assistant District Attorney, Orleans Parish, New Orleans, Louisiana, Counsel For Plaintiff/Appellee.

Menette W. Burns, Louisiana Appellate Project, Covington, Louisiana, Counsel For Defendant/Appellant.

Court composed of Chief Judge ROBERT J. KLEES, Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY.

KIRBY, Judge.

Defendant Clifton Drummer was charged by bill of information on March 10, 1998 with possession of cocaine, a violation of La. R.S. 40:967(C)(2). Defendant pleaded not guilty at his March 27, 1998 arraignment. The trial court found probable cause and denied defendant's motion to suppress the evidence. Defendant was found guilty as charged following trial by a six-person jury on June 30, 1998. On October 23, 1998, the trial court sentenced defendant to five years at hard labor, adjudicated defendant a second felony habitual offender, vacated the original sentence, and sentenced defendant to two and one-half years at hard labor with credit for time served. The trial court denied defendant's motion to reconsider sentence and granted his motion for appeal.

New Orleans Police Officer Timothy Allen testified that on the morning of December 23, 1997, he and his partner responded to a residential burglary-in-progress call at 1124 North Tonti Street. In connection with that investigation Officer Allen detained defendant and another male. He performed a protective pat-down search of defendant and detected two cylindrical objects in defendant's right rear pants pocket, which he believed to be crack pipes. He said the pipes had wire mesh in one end of the pipe, along with a residue which appeared to him to be burned cocaine. He identified the two metal crack pipes at trial. On cross-examination, Officer Allen said the burglary call proved to be unfounded. He said he did not observe defendant smoking any cocaine that day.

New Orleans Police Officer Denise Miles testified that she was Officer Allen's partner on the date in question. Her testimony tracked that of Officer Allen. Officer Miles said Officer Allen recovered two crack pipes when he patted down defendant.

New Orleans Police Department Criminalist, Karen Lewis Holmes, was qualified by stipulation as an expert in the testing and identification of narcotics. Officer Holmes testified that she tested both crack pipes and that each tested positive for the presence of cocaine. Officer Holmes stated that the crack pipes are rinsed with methanol, and the resulting solution is examined under a microscope for the presence of cocaine crystals. Officer Holmes said she also uses a Gas Chromatograph Mass Spectrometer, which separates the molecules of the substances and gives a readout of what the substance is. She testified that this is the standard procedure used with all crack pipes coming through the police crime laboratory. Officer Holmes testified that it was possible that there had been some residue visible to the naked eye when she tested the pipes, but that she could not recall.

*363 On cross examination, Officer Holmes testified that one cannot really see any cocaine in the pipes, and that after rinsing with methanol, all one can see is a clear liquid. She said she could not weigh the cocaine residue because the laboratory scale can only weigh items of one-hundredth of a gram or more. Officer Holmes said she saw nothing in the pipes at the time of trial that could be cocaine.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant claims the evidence was insufficient to convict him of possession of cocaine, specifically, that he knowingly or intentionally possessed the drug.

This court set out the standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of act could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

98-0011, at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

Defendant was charged with and convicted of possession of cocaine, a violation of La. R.S. 40:967(C)(2), which provides that "[i]t is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II...." Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964. To support a conviction for possession of cocaine, the State must establish that the defendant was in possession of the drug and that he knowingly or intentionally possessed it. State v. Shields, 98-2283, p. 3 (La.App. 4 Cir. 9/15/99), 743 So.2d 282, 283. Guilty knowledge is an essential element of the crime of possession of cocaine. State v. Williams, 98-0806, p. 6 (La.App. 4 Cir. 3/24/99), 732 So.2d 105, 109. The elements of knowledge and intent need not be proven as facts, but may be inferred from the circumstances. State v. Porter, 98-2280, p. 3 *364 (La.App. 4 Cir. 5/12/99), 740 So.2d 160, 162. A trace amount of cocaine in a crack pipe can be sufficient to support a conviction for possession. See Shields, supra; Porter, supra.

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750 So. 2d 360, 1999 WL 1257377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-drummer-lactapp-1999.