State v. Gallow

452 So. 2d 227
CourtLouisiana Court of Appeal
DecidedMay 30, 1984
Docket83 KA 1264
StatusPublished
Cited by8 cases

This text of 452 So. 2d 227 (State v. Gallow) 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. Gallow, 452 So. 2d 227 (La. Ct. App. 1984).

Opinion

452 So.2d 227 (1984)

STATE of Louisiana
v.
Hampton GALLOW.

No. 83 KA 1264.

Court of Appeal of Louisiana, First Circuit.

May 30, 1984.
Writ Denied September 20, 1984.

*230 Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.

Kathleen S. Richey, Asst. Public Defender, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

Defendant, Hampton Gallow, was charged with possession of Pentazocine on August 11, 1982, in violation of La.R.S. 40:967(C). Defendant pled not guilty, and after a bench trial was found guilty as charged. He was sentenced to three years in the East Baton Rouge Parish Prison, with credit for time served on the charge. The sentence was to run concurrent with an eighteen-month sentence defendant was serving at the time. Defendant appeals his conviction and sentence, alleging eight assignments of error. Two assignments of error were not briefed, and therefore, are considered abandoned. Rule 2-12.4, Uniform Rules-Courts of Appeal, State of Louisiana; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983). The remaining assignments of error are as follows:

1. The trial court erred when it overruled defense objection that the prosecutor's question was irrelevant.
2. The trial court erred when it denied defense motion to suppress.
3. The trial court erred when it overruled defense objection to the introduction of testimony.
4. The trial court erred when it overruled defense objection to the introduction of evidence.
5. The trial court erred when it denied defense motion for directed verdict of acquittal.
6. The trial court erred when it rendered a verdict contrary to law and/or evidence.

FACTS

On August 11, 1982, at approximately 11:00 p.m., two police officers were patrolling Scenic Highway in Baton Rouge. As they passed a lighted car wash, they observed an occupied car in one of the stalls. No one was washing the car nor was there any water around to indicate the car had just been washed. The officers doubled back and, as they pulled into the area, the car began to pull out. The police unit stopped the car. At that point, the driver and one passenger hurriedly left their car and walked to the police unit. One police officer checked the vehicle and saw defendant sitting in the back seat holding a quart of beer and a cup of water. On the front seat, he saw an orange tablet that he recognized as Pentazocine (Talwin) and a bottle cap containing a crushed blue pill. The officer made defendant leave the car, and the three men were arrested and given Miranda warnings. Marijuana was found in defendant's pocket. In addition, a revolver and two hypodermic syringes were found under the front seat of the car. A paper towel containing blood was found in the back seat of the car. Lab tests confirmed the tablet seized was Pentazocine. All three men were charged with possession of Pentazocine, tried and found guilty.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred when it overruled his objection to an irrelevant question. At the motion to suppress hearing, on direct examination of one of the arresting officers, the prosecutor asked, "Did you find any indication that the subjects had already injected contraband?" Defense counsel objected and argues that this question was irrelevant to the issue of whether a legal stop occurred.

The issue to be decided at the motion to suppress hearing was whether certain items which were seized could be admitted into evidence at trial. To decide this issue, the trial judge had to determine if the initial stop was legal and whether the subsequent search of the car and seizure of items was valid.

*231 The evidence must be relevant to a material issue to be admissible. La.R.S. 15:435. Facts necessary to explain a relevant fact, or which support an inference raised by such fact, are admissible. La. R.S. 15:441. The trial court has great discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of discretion. State v. Easley, 432 So.2d 910 (La. App. 1st Cir.1983).

There were several items of evidence, including a paper towel and hypodermic syringes, that the state wanted to admit into evidence. The prosecutor indicated his question was about items which were seized. The question was relevant to determine which items were seized and to lay a foundation for admitting those items.

Even if the question and subsequent answer were irrelevant, defendant's conviction will not be reversed without a showing that substantial rights of defendant were affected. See La.C.Cr.P. art. 921. A judge by virtue of his training in the law is able to disregard irrelevant matters which are possibly prejudicial. State v. Bowman, 434 So.2d 1175 (La.App. 1st Cir.1983).

Defendant does not argue, nor do we find, that substantial rights of the defendant were affected by the questioning. It is difficult to see how they could be when the question was asked via a hearing on a motion to suppress and there is no indication the answer affected the admission of the evidence. We find defendant was not prejudiced and this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

THE STOP

Defendant contends the trial court erred in its denial of the motion to suppress. Defendant contends that the officers did not have the legal right to make the original stop, and consequently any seizure made as a result of a search thereafter must be suppressed. Resolution of this question depends upon the officers' right to make the initial investigatory stop.

The Louisiana Constitution of 1974, article I, section 5 provides in pertinent part: "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 as well as both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979). Reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, 434 So.2d at 391.

The officers were patrolling in a high crime area and saw a car parked in a lighted car wash near a coin box. Since there was no water on the ground, it did not appear that the car had been washed nor did it appear that any attempt was being made to wash the car. One occupant was leaning down, and all the occupants seemed preoccupied with activity in the car. The officers were aware that thefts had occurred from the coin boxes at that car wash particularly from the end stall.

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452 So. 2d 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gallow-lactapp-1984.