State v. Harper

646 So. 2d 338, 1994 WL 673960
Supreme Court of Louisiana·Decided November 30, 1994·No. 93-K-2682·Published·Cited by 21 cases

Opinion

646 So.2d 338 (1994)

STATE of Louisiana
v.
Andrew HARPER.

No. 93-K-2682.

Supreme Court of Louisiana.

November 30, 1994.

*339 Kevin V. Boshea, Martin E. Regan, Jr., Thomas M. Calogero, New Orleans, for applicant.

Richard P. Ieyoub, Atty. Gen., John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., Louise S. Korns, for respondent.

MARCUS, Justice.[*]

Andrew Harper was charged by bill of information with distribution of a controlled dangerous substance, to wit, cocaine, in violation of La.R.S. 40:967(A). After trial by jury, defendant was found guilty as charged. The trial judge sentenced defendant to imprisonment at hard labor for a term of thirty years with credit for time served and ordered the sentence to run consecutively with a ten year sentence imposed in another proceeding. The court of appeal affirmed defendant's conviction and sentence.[1] Upon defendant's application, we granted certiorari to consider the correctness of that decision.[2]

On October 18, 1990, Lieutenant John Thevenot of the Jefferson Parish Sheriff's Office coordinated an investigation into alleged drug activity of a suspect known only as "Boo" or "Bootie," who was allegedly distributing narcotics in front of 921 North Claiborne Parkway on the west bank in Westwego. He instructed Agent Cory Wilson, an undercover agent, to go to that residence with a confidential informant in an effort to make a purchase of crack cocaine. Wilson *340 was given one hundred dollars to make the purchase.

At approximately 1:45 on the afternoon of October 18, Wilson travelled to the area, accompanied by a cover team consisting of Thevenot, Agent Rob Lore, Agent Wilkie Declouet and two other officers. Wilson was instructed by Thevenot to go in with the confidential informant to purchase narcotics. Wilson first saw the suspect outside of his residence working on his vehicle. The suspect introduced himself as "Bootie." Wilson asked him for six rocks of crack cocaine. The suspect went into the residence and returned with six rocks of crack cocaine, advising Wilson they would cost one hundred dollars. Wilson gave him the money and the suspect handed him the drugs. Upon completing the buy, Wilson met with Agent Lore and turned all the evidence over to him. After returning to the office, Lore identified the individual named "Bootie" as defendant, Andrew Harper, and obtained a photograph of him. The next day, Wilson identified this photograph as being that of the suspect who introduced himself as "Bootie" and sold him the six rocks of cocaine.

At trial, Wilson identified defendant as the person from whom he made the drug purchase on October 18, 1990. He testified he was face to face with defendant for approximately three minutes in the daylight and had no difficulty seeing his face. Agent Lore testified that he had made a drug purchase from defendant in January, 1990 and knew for a fact that defendant was nicknamed "Bootie." Agent Declouet identified defendant at trial as the man he saw speaking with Agent Wilson in front of the residence, although he admitted he did not see the transaction take place.

Defendant presented the defenses of misidentification and alibi. In support of the misidentification defense, defendant called Kendrick Delahousseye as a witness. Delahousseye testified that an individual known as Eddie Boo sold crack cocaine in the North Claiborne area. He testified that Eddie Boo's family and defendant's family were close and Eddie Boo frequently visited defendant's mother's house. He further testified that Eddie Boo and defendant were about the same size and height. Defendant testified that Eddie Boo was a close relative of his and visited his mother's house often. Defendant denied selling crack cocaine to Agent Wilson on October 18, and testified that on that date, he was at his girlfriend's apartment in Metairie.

Defendant's girlfriend, Patricia Lampton, testified that in October of 1990, she was living in an apartment on the east bank in Metairie. Her mother lived in the Claiborne Garden area in Westwego. She testified that on October 17, while she was visiting her mother, a shootout occurred around the corner from her mother's house in which three people got shot. She recalled that after the shooting, she and defendant went across the river to her apartment in Metairie and spent the entire day of October 18 (the day of the drug transaction) there. On cross examination, the prosecutor asked Ms. Lampton how she knew the shooting occurred on October 17. She answered that she recalled seeing an article about the shooting in the newspaper on October 18. After the defense rested, the prosecutor called Ms. Lampton as a hostile witness in rebuttal, and introduced copies of the Times-Picayune, showing that the October 18 edition contained no reference to the shooting, but that the October 19 edition referred to a shooting in Westwego. The prosecutor read from the article in the October 19 edition, which stated the shooting took place at 11:45 a.m. The following exchange then took place:

A. I said the accident did take place on the 17th going into the morning. It happened at 2:30 that morning, going into the 18th. That morning we did leave after the shooting and go—went home.
Q. And what morning was that?
A. That was on the 18th.
Q. So, would this have been the shooting?
A. That's the same shooting.
Q. That happened on the 18th?
A. Yes.
Q. At 11:47 A.M.

At this point, defendant objected to the reference to the time of the shooting as being hearsay. The trial judge overruled the *341 objection, and the prosecutor continued to refer to the shooting as having taken place "around noon." On cross-examination by defendant, Ms. Lampton again insisted that the shooting happened at 2:30 in the morning on the "17th, going into the 18th." When asked if there was any way that the shooting could have occurred at 11:47 a.m., she replied "no."

Defendant then moved to have the state produce the police report in case # 90-4617 (the shooting case). Outside the presence of the jury, defendant argued that the police report would show that the shooting really took place at around 3:30 a.m. and the police report would corroborate Ms. Lampton's testimony, thus making it evidence favorable to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge denied the motion and refused to allow a proffer of the report. Defendant then asked to call witnesses on surrebuttal to show the correct time of the shooting. The trial judge denied this motion. During closing arguments, the prosecutor again referred to the 11:45 a.m. time.[3]

In a post-trial motion to set the appeal bond, defendant produced the police report, showing the shooting took place at 12:47 a.m. Defendant also filed a motion for new trial, contending the police report was new evidence. The trial judge denied the motion.

Four issues are presented for our consideration: (1) whether the pre-trial single photograph identification and subsequent in-court identification of defendant made by Agent Wilson should be suppressed; (2) whether the state presented sufficient evidence to prove all elements of the crime; (3) whether the trial judge erred in allowing the state to use the 11:45 a.m. time in th

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State v. Harper, 646 So. 2d 338, 1994 WL 673960 (La. 1994).

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