State v. Gray

598 So. 2d 1215, 1992 La. App. LEXIS 1256, 1992 WL 86214
CourtLouisiana Court of Appeal
DecidedApril 30, 1992
DocketNo. 90-KA-1604
StatusPublished
Cited by2 cases

This text of 598 So. 2d 1215 (State v. Gray) 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. Gray, 598 So. 2d 1215, 1992 La. App. LEXIS 1256, 1992 WL 86214 (La. Ct. App. 1992).

Opinion

WALTZER, Judge.

This is an appeal from a conviction in accordance with a jury verdict finding the defendant, Percy Gray, guilty of simple possession of heroin, a violation of R.S. 40:966(C)(2). From that conviction, defendant appeals. We affirm.

I. PROCEDURAL HISTORY OF THE CASE:

On April 20, 1989, a true bill was returned indicting defendants Percy Gray and Lionel Delpit, charging them with the distribution of heroin, a violation of R.S. 40:966(A)(1). A motion for severance was granted on August 31, 1989. On September 6, 1989, Lionel Delpit was tried by a twelve member jury and acquitted. On September 19, 1989, defendant Percy Gray was tried by a twelve member jury that returned a responsive verdict of simple possession of heroin, a violation of R.S. 40:966(C)(2). On March 1, 1990, the defendant was sentenced to six years at hard labor. The record was confected in this court on February 4,1992 and submitted to the appellate panel on April 2, 1992.

II. FACTS:

In cooperation with the Federal Drug Enforcement Agency (DEA), several officers of the New Orleans Police Department (NOPD) conducted an undercover investigation, designed to target the illegal sale of heroin. As part of this operation, Detectives Wayne Farve (“Farve”) and Clarence Wethern (“Wethern”) of the NOPD were to provide surveillance coverage, and Officer Jimmy Penton (“Penton”) of the Slidell Police Department was chosen to pose as a heroin distributor buying supplies for out-of-city resale.

On May 19, 1988, Penton and an informant went to 1514 Frenchman Street in New Orleans. Wethern and Farve were positioned in separate vehicles in order to monitor the transaction and provide backup.

[1217]*1217At trial Wethern testified that he observed Penton exit his vehicle and enter an alley way parallel to the residence. At that point, Wethern lost visual contact with Pen-ton.

Upon entering the alley, Penton testified that he was approached by Lionel Delpit who asked whether Penton wished to buy any heroin. The undercover officer responded that he wanted a “bundle” (twenty-five units of heroin individually wrapped in foil). However, according to Penton’s testimony, Delpit could only obtain sixteen “foils” for four hundred dollars. The confidential informant was then ordered by Delpit to leave the alley.

Penton then gave the money to Delpit, who immediately entered the residence. At or about this time the homeowner, Jane Louis, entered the alley. Jane Louis is Percy Gray’s mother. Seeing that the alley was occupied, Jane Louis hastily exited the alley and entered the front of her home.

Thereafter, defendant Percy Gray came outside and stood on the steps, approximately three feet above Penton. Penton testified that during this transaction, Delpit referred to the defendant as “Percy.”

The defendant then gave Penton the sixteen foils of heroin and instructed Penton to park away from the house and to walk to the house on subsequent visits. Furthermore, Gray offered to provide Penton with extra foils of heroin on their next transaction to remedy the fact that a “bundle” was unavailable. Penton then returned to his car and delivered the heroin to the office.

After observing Penton leave in his car, Wethern and Farve saw Gray exit the alley way, enter a Cadillac and drive in the same direction as Penton. Wethern and Farve followed the defendant’s vehicle. In the course of this surveillance, Farve testified that he pulled next to Gray’s car and obtained a description of the occupant/driver.

At the DEA office, it was determined by the officers that the description of the seller of the heroin matched the description of the driver of the Cadillac. The license plates on the cars seen at or near 1514 Frenchman Street were checked, revealing that one car was registered to Percy Gray.

On a later date, Wethern and Farve showed Penton a single photograph of the defendant. This photograph was identified by Penton as the individual who had given him the foils of heroin.

Nine months later, on March 31, 1989, the defendant was arrested pursuant to an arrest warrant. At that time, a positive identification was made by Penton and Farve.

III. SPECIFICATIONS OF ERROR:

On appeal, defendant-appellant raises the following specifications of error:

1. The trial judge erred in allowing the jury to consider a police identification.
2. The evidence was insufficient to prove the elements of the offense beyond a reasonable doubt.
3. The trial court erred in its jury charge.
4. The trial court erred in its supplemental jury charge.

A. Assignment of Error Number One

The defendant argues that the trial judge erred in allowing the jury to consider evidence of an impermissible identification. The defendant argues that since the witness Jimmy Penton, the police officer who purchased heroin from the defendant identified Percy Gray from only one photograph, rather than an array of photographs, the identification was unnecessarily suggestive and unreliable.

This issue is not properly before this court because defendant failed to timely object thereto.

Code of Criminal Procedure Article 841(A) provides as follows:

“An irregularity or error cannot be availed of after a verdict unless it was objected to at the time of the occurrence.”

In this case, no objection was made at trial, nor was any motion to suppress the identification filed or held. The minute entry dated July 7, 1989, indicates that “no [1218]*1218motions lie.” The defendant argues that “undoubtedly” the State made the assertion that there was no identification procedure employed, thereby withholding information from the defense. The State argues that the defendant is speculating as to the reasons why no motions lie, and that such speculation is inappropriate on appeal. This debate is irrelevant. When the defendant became aware of the photo identification during trial, he did not object or file at that time, thereby waiving his objection for purposes of appeal.

A defendant who fails to object at trial to the admission of the identification evidence or testimony, and who fails to file a motion to suppress the identification, waives the right to assert the error on appeal. State v. Naas, 409 So.2d 535, 547 (La.1981), cert. denied 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982). Absent an objection or motion, appellant may not raise the issue of an identification tainted by “previous illegal out-of-court identifications.” State v. Phanor, 325 So.2d 579, 581 (La.1976).

Since the defendant failed to file a motion to suppress the identification and did not object at trial to testimony or introduction of physical evidence, this specification of error is without merit.

B. Assignment of Error Number Two

The defendant asserts that the jury convicted him without sufficient evidence.

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Bluebook (online)
598 So. 2d 1215, 1992 La. App. LEXIS 1256, 1992 WL 86214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gray-lactapp-1992.