State v. Gordy

380 So. 2d 1347
CourtSupreme Court of Louisiana
DecidedJanuary 28, 1980
Docket65288
StatusPublished
Cited by44 cases

This text of 380 So. 2d 1347 (State v. Gordy) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gordy, 380 So. 2d 1347 (La. 1980).

Opinion

380 So.2d 1347 (1980)

STATE of Louisiana
v.
Roger C. GORDY.

No. 65288.

Supreme Court of Louisiana.

January 28, 1980.

*1350 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Howat A. Peters, Jr., Dist. Atty. ad hoc, Vernon Parish, 30th Judicial Dist., for plaintiff-appellee.

Mark H. Kramar, Leesville, for defendant-appellant.

DIXON, Justice.

The defendant was charged by bill of information with distribution of methamphetamine in violation of R.S. 40:967(A). The charge arose out of an incident in which the defendant met two other men in *1351 a Leesville bar on July 14, 1978. One of the men was an undercover police officer and the other was a paid police informer. The officer, according to his own testimony, purchased one gram of methamphetamine from the defendant. The defendant was subsequently arrested and convicted by a twelve man jury. He was sentenced to serve nine years at hard labor, and fined $1000 (with an additional nine month sentence if he failed to pay the fine within one year). The defendant has appealed to this court urging fourteen assignments of error, three of which have been abandoned.

Assignment of Error No. 1

By this assignment the defendant argues that the trial court erred in not declaring a mistrial because of the state's introduction of evidence which the defendant claims relates to crimes other than the one for which the defendant was on trial. In State v. Prieur, 277 So.2d 126 (La.1973), we held that the state must give the defendant notice when it intends to introduce such evidence of other crimes and that such evidence can only be used to show system, intent or knowledge as contemplated by R.S. 15:445-6. The defendant notes six instances in which he claims statements or exhibits were admitted which amounted to evidence of other crimes.

First, the defendant points to three incidents which could have indicated to the jury that there was more than one item of evidence seized and examined by police in this case. Two witnesses referred to the existence of two items of evidence. In addition, a receipt for evidence was partially covered to conceal information as to part of the evidence received. Full testimony was taken only as to the evidence which formed the basis for this prosecution. There was no indication in the testimony as to the nature of the second item of evidence, and there was no evidence that the second item was connected with any criminal activity. The testimony of the witnesses and the receipt were relevant to show the nature of the substance that the defendant sold to the police officer and to establish the chain of custody of that substance. The oral references to the possible existence of other evidence were inadvertent and were cut short before the nature of the second item of evidence was disclosed. After a review of the record, we conclude that neither the testimony of the witnesses nor the receipt conveyed the impression that the defendant had committed other crimes.

The next point of contention is the admission of a summons issued by the state for a witness who failed to appear at trial. The summons was issued for Kenny Willis, who had been present in the bar when the sale took place. The summons had two case numbers and two dates on it. The trial court ordered the covering of both dates and of the number not applicable to this case. The summons was relevant to show that the state had attempted to obtain the witness' testimony, and to negate any inference that the witness would have testified against the state. The tape used to cover the omitted information, though prominent, gives no indication of the nature of the material covered nor does it even clearly indicate that anything was being kept from the jury. There was nothing about the summons from which a juror could have inferred that the defendant had committed another crime.

The next incident involves a question posed by the state to a criminologist as to the value of one ounce of methamphetamine. This case involved the sale of one gram of the substance. The defendant did not object to the question or the answer to it, which was simply, "Twenty-six times that. Whatever that would be." Under C.Cr.P. 841 an irregularity or error at trial cannot be availed of after verdict unless the party makes known his objection and the grounds for it. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Hysell, 364 So.2d 1300 (La.1978). In any event, there was no suggestion that the defendant had ever sold any other drug besides that involved in this case. The testimony did not constitute evidence of another crime.

*1352 Finally, the defendant argues that the district attorney made reference to other crimes when he commented in closing argument upon the profits that could come from the large scale sale of methamphetamine. As the trial court instructed the jury, the arguments of counsel are not evidence. The comments of a prosecutor may amount to grounds for a mistrial under C.Cr.P. 770. In the present case the comments of the district attorney refer to criminal activity and the profits attendant thereof, but there was no allegation that the defendant had sold any drugs aside from those involved in this case. In any event, the defendant failed to move for a mistrial. He must therefore be content with the trial court's admonition that there is no indication that there was any incident involving this defendant.

This assignment of error lacks merit.

Assignments of Error Nos. 2 and 4

By these assignments the defendant challenges the admission of the methamphetamine allegedly sold by the defendant, and of the receipt of the evidence package containing the drug.

As noted in State v. Paster, 373 So.2d 170, 177 (La.1979):

"To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity if a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978)."

In this case the testimony of the officer who purchased the drug, the officer who transported it to the crime lab and the chemist who identified it as methamphetamine established more probably than not that the substance introduced was the one involved in the sale.

The admission of the receipt, already dealt with in Assignment No. 1, was not an abuse of the trial court's discretion, although it may have worked some prejudice on the defendant, in light of the fact that the receipt was highly relevant in establishing the chain of custody which the defendant was contesting.

We find no merit in these assignments of error.

Assignments of Error Nos. 5 and 6

The defendant filed two motions to have the trial judge recused. The trial court denied both motions without referring the motions to another judge for a hearing. The defendant assigns error to the trial court's action.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jenkins
226 So. 3d 436 (Supreme Court of Louisiana, 2017)
State v. Howard
106 So. 3d 1038 (Louisiana Court of Appeal, 2012)
State v. Pitree
930 So. 2d 265 (Louisiana Court of Appeal, 2006)
State of Louisiana v. Nicholas Demond Pitree
Louisiana Court of Appeal, 2006
State v. Maten
899 So. 2d 711 (Louisiana Court of Appeal, 2005)
State v. Hampton
750 So. 2d 867 (Supreme Court of Louisiana, 1999)
State v. Gibson
668 So. 2d 449 (Louisiana Court of Appeal, 1996)
State v. Fanguy
643 So. 2d 860 (Louisiana Court of Appeal, 1994)
State v. Dugar
643 So. 2d 870 (Louisiana Court of Appeal, 1994)
State v. Wiley
614 So. 2d 862 (Louisiana Court of Appeal, 1993)
State v. Miles
613 So. 2d 1047 (Louisiana Court of Appeal, 1993)
Segura v. Andries
610 So. 2d 188 (Louisiana Court of Appeal, 1992)
State v. Fann
597 So. 2d 1230 (Louisiana Court of Appeal, 1992)
State v. Burrell
561 So. 2d 692 (Supreme Court of Louisiana, 1990)
State v. Wille
559 So. 2d 1321 (Supreme Court of Louisiana, 1990)
State v. Rogers
553 So. 2d 453 (Supreme Court of Louisiana, 1989)
State v. Richard
550 So. 2d 300 (Louisiana Court of Appeal, 1989)
Pierce v. Charity Hosp. of Louisiana
550 So. 2d 211 (Louisiana Court of Appeal, 1989)
State v. Brown
546 So. 2d 1265 (Louisiana Court of Appeal, 1989)
State v. Bonhomme
544 So. 2d 640 (Louisiana Court of Appeal, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
380 So. 2d 1347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gordy-la-1980.