State v. Golden

95 So. 3d 522, 2011 La.App. 4 Cir. 0735, 2012 WL 1880992, 2012 La. App. LEXIS 715
CourtLouisiana Court of Appeal
DecidedMay 23, 2012
DocketNo. 2011-KA-0735
StatusPublished
Cited by6 cases

This text of 95 So. 3d 522 (State v. Golden) 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. Golden, 95 So. 3d 522, 2011 La.App. 4 Cir. 0735, 2012 WL 1880992, 2012 La. App. LEXIS 715 (La. Ct. App. 2012).

Opinion

EDWIN A. LOMBARD, Judge.

h The defendant appeals his conviction for possession of cocaine, a violation of La.Rev.Stat. 40:967(0(2). After review of the record in light of the applicable law and arguments of the parties, we affirm his conviction and sentence.

[525]*525 Relevant Procedural History

Henry W. Golden1 was arrested for possession of cocaine in April 2007. He pleaded not guilty at his arraignment in July 2007. The trial court denied the defendant’s motions to exclude expert testimony and, alternatively, for a Daubert2 hearing in June 2010. The defendant’s motion to suppress was denied on November 5, 2010, and after a two day trial he was convicted by a six-person jury of possession of cocaine on November 18, 2010.

He appeals this conviction, arguing that the trial court erred in denying his motion to suppress, permitting introduction of impermissible other crimes evidence, denying his motion for a Daubert/Frye hearing as to the admissibility of the criminologist’s testimony concerning the test results of the substances ^contained in a tin container seized by the police at the time of his arrest, and in allowing the Orleans Parish District Attorney’s office to prosecute him after it recused itself in 2007.

Relevant Facts

The following evidence was adduced at the motion hearing and at trial.3 On April 23, 2007, Detective Chad Perez of the New Orleans Police Department (NOPD) received information from a reliable confidential informant (Cl) that the defendant was distributing cocaine in the City of New Orleans. The Cl told Detective Perez that shortly after 5 p.m. the defendant would leave his French Quarter pet supply business, located on Dumaine Street near Decatur Street, and drive to the 800 block of North Salcedo Street in his black Toyota FJ Cruiser to make a narcotics sale. Accordingly, Detective Perez conveyed this information (including the description of the defendant and the defendant’s vehicle) to Detective Frankie Watts, another member of the narcotics Special Operations group, directing him to establish a surveillance of the 800 block of North Salcedo Street.

While Detective Watts undertook surveillance of the 800 block of North Salcedo, Detective Perez and his partner, Detective Nathan Gex, waited nearby but out of sight. After Detective Watts reported suspicious actions taken by the defendant under surveillance, Detectives Perez and Gex drove towards the defendant who was standing beside his black SUV parked in front of 829 North Salcedo Street. Upon seeing the detectives, the defendant immediately twisted |osideways, holding the small tin can behind his leg and then discarding it into a small planter box in front of the fence at 829 North Salcedo Street. Accordingly, based on the information provided by Detective Watts and their own observations, Detectives Perez and Gex decided to detain Mr. Golden. They exited the police vehicle and, while Detective Perez detained the defendant, his partner re[526]*526trieved a small tin Altoids can from the planter box. Detective Perez testified that the Altoids can, which was submitted into evidence, contained ten clear plastic bags each containing a white powered substance that, based upon his experience, he identified as cocaine. In addition, Detective Perez stated that, although he did not conduct the test himself, a field test on at least one of the ten bags inside of the Altoids can tested positive for cocaine and a K-9 search of the vehicle revealed six thousand dollars in U.S. currency in the center console of defendant’s vehicle. Finally, Detective Perez identified the defendant in court as the target of his investigation who he arrested on April 28, 2007.

Detective Watts’s testimony corroborated that of Detective Perez. He testified that on April 23, 2007, while assigned to the narcotics Special Operations group, he was directed by Detective Perez to set up surveillance in the 800 block of North Sal-cedo Street, between Orleans Avenue and St. Ann Street.4 He was given the defendant’s name and a description of the vehicle involved, a black-colored SUV. Accordingly, Detective Watts parked on North Salcedo Street between 4:30 and 4:45 p.m. in a non-police unit and began his surveillance. Twenty minutes into his surveillance, Detective Watts observed the defendant park his vehicle approximately fifteen to twenty yards away from him, exit the vehicle, and pace |4back and forth. Approximately three to four minutes later, a police unit entered the block and the defendant discarded a small tin can he was holding in his hand into some shrubbery in front of 829 North Salcedo Street. The police unit — which was in the area unrelated to Detective Watts’ narcotics investigation — drove by. The defendant then retrieved the tin can, opened it, and manipulated something inside the can with his fingers. At that point, Detective Watts notified Detective Perez and Detective Gex of the suspicious activities he had observed. Within seconds, Detective Perez and Detective Gex pulled up to the defendant who was standing next to his SUV.

Detective Gex also testified at the motion hearing and trial, corroborating the testimony of Detectives Watts and Perez. He stated that on April 23, 2007, he first observed the defendant standing outside of a black Toyota “jeep” vehicle near the sidewalk of 829 North Salcedo Street. When the defendant saw him and his partner (Detective Perez) approach, he appeared very nervous, turning his body sideways and discarding an object off to his side into a little flower area. When asked his first reaction upon seeing defendant’s actions, Detective Gex replied: “Based on the information that Detective Watts had given us everything was an indication that he was in possession of narcotics and he was attempting to get rid of it because of police presence.” After exiting their vehicle, Detective Gex recovered the Altoids can that the defendant had discarded in a flowerbed between the sidewalk and the fence while his partner detained the defendant. Detective Gex identified the Altoids can in evidence as the one discarded by defendant that contained ten bags of cocaine. In addition, Detective Gex testified that six thousand dollars in |5U.S. currency, consisting of thirty one-hundred dollar bills and one hundred fifty twenty-dollar bills, was recovered from the defendant’s vehicle.

Detective Gex testified that the defendant’s actions, as relayed by Detective [527]*527Watts — holding an object in his hand but, upon seeing a police unit pass, becoming very nervous and discarding the object into some shrubbery or grass and retrieving it only when the police vehicle left the area, then opening it up and manipulating the contents inside, as if checking on or counting its contents — were consistent with narcotics activity and that this was the basis of the decision to make an investigatory stop. He reiterated that as they pulled up behind defendant’s vehicle, the defendant discarded the object in his hand into a grassy area right in front of the fence. Although he conceded that he could not recall whether he and Detective Perez were still in their vehicle when defendant discarded the object in his hand, Detective Gex insisted that the defendant discarded it before they put their hands on him.

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Cite This Page — Counsel Stack

Bluebook (online)
95 So. 3d 522, 2011 La.App. 4 Cir. 0735, 2012 WL 1880992, 2012 La. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-golden-lactapp-2012.