State v. Harris

510 So. 2d 434, 1987 La. App. LEXIS 9839
Louisiana Court of Appeal·Decided June 23, 1987·No. No. KA 86 1691·Published·Cited by 2 cases

Opinion

LOTTINGER, Judge.

Lionel Harris was charged by bill of information with possession of pentazocine (a Schedule II CDS commonly known as Tal-win). La.R.S. 40:967 C. He pled not guilty and, after trial by jury, was found guilty as charged. He received a sentence of three years at hard labor. The trial court suspended this sentence, placed the defendant on active, supervised probation for 3 years, and imposed 8 special conditions of probation. One of the conditions of probation was serving 6 months in the parish prison. Additionally, the trial court ordered the defendant to pay court costs and clerk’s fees of $92.75 or, in default of payment, serve an additional 20 days in the parish jail.

The defendant has appealed, alleging six assignments of error, as follows:

1. The trial court erred in denying the defendant’s motion for a mistrial.
2. The trial court erred in overruling the defendant’s objection to the admissibility of Lt. Spillman’s statements.
3. The trial court erred in overruling the defendant’s objection to Lt. Spill-man’s testimony regarding his examination of defendant’s arm at the time of arrest.
4. The trial court erred in overruling the defendant’s objection to the in-court examination of the defendant’s arm by Lt. Spillman.
5. The trial court erred in imposing an excessive sentence and in failing to comply with the guidelines of La. Code Crim.P. art. 894.1.
6. The verdict is contrary to the law and/or evidence.

Assignment of error number six was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules— Courts of Appéal, Rule 2-12.4.

PACTS

Shortly after midnight on November 23, 1985, Zachary Police Lt. Glen Spillman was driving south on Old Slaughter Road when he observed the defendant and another [436]*436male sitting on the edge of the road partially blocking his lane of travel. A third male was standing across from the others and several feet from the edge of the road. Lt. Spillman testified that, when he turned on his bright headlights and his spotlight to illuminate the area, he observed the defendant throw something across the road. He observed where this object landed, got out of the car, and picked it up. The object which he recovered from across the road was a syringe containing a green and yellow liquid, which was later determined to contain pentazocine. Lt. Spillman also found a bottle cap containing this green and yellow liquid and three sets of T's and Blues (the street terminology for pentazo-cine, commonly known as Talwin, and pyri-benzamine, a non-controlled antihistamine) on the ground a few inches from where the defendant was sitting.

Lt. Spillman’s partner, Reserve Officer Jerry Young, testified that he observed Lt. Spillman recover the syringe and the bottle cap. Although he did not observe the defendant throw the syringe across the road, he explained that he was watching one of the other men when Lt. Spillman told him that he saw the defendant throw something.

The two men at the scene with the defendant were later identified as Tyrus Hampton and Leroy Thompson. All three men were arrested and taken to the Zachary Police Department, but Hampton and Thompson were later released.

Lt. Spillman testified that the defendant’s left arm contained three puncture marks in line with a vein. One of the puncture marks appeared to be old, but the second appeared to be “fresh,” and the third appeared to be “really fresh.” Lt. Spillman also testified that the defendant appeared to be “sedated.”

At the trial, the defendant testified that he was drinking a beer with" Tyrus Hampton and Leroy Thompson at this particular spot beside Old Slaughter Road when the police came and arrested them. He stated that he did not throw the syringe across the road and that the pills and bottle cap found on the ground must have been left there by people who had left the area a few minutes before he and his two friends arrived. In an attempt to explain the puncture marks on his arm which Lt. Spillman observed, the defendant testified that he had been hospitalized for approximately one month in the late spring or early summer of 1985 and that, during this hospital stay, he had received intravenous injections.

Both Hampton and Thompson testified that they had gone to this particular location with the defendant to drink a beer. They indicated that this spot was located near a shade tree and was a local gathering place. Hampton and Thompson also testified that several people had just left this area when they arrived. Neither Hampton nor Thompson testified that they had ob: served the defendant with any drugs or a syringe on this occasion.

ASSIGNMENTS OF ERROR NOS.

1, 2, 3, AND 4

In assignment of error number two, the defendant contends that the trial court erred in overruling his objection to the admissibility of Lt. Spillman’s statements about puncture marks found on the defendant’s arm at the time he was arrested. In assignment of error number one, the defendant contends that the trial court erred in denying his motion for a mistrial after Lt. Spillman testified about these puncture marks in the presence of the jury. Assignments of error numbers three and four relate to the trial court’s allowing, over defense objection, Lt. Spillman to physically examine the defendant’s arm for puncture marks in the presence of the jury.

At the trial, Lt. Spillman testified that, when he arrested the defendant, he observed three puncture marks in line with one of the veins on the defendant’s left arm. Lt. Spillman testified that one of the puncture wounds appeared to be old. The second mark was real “fresh” and the third mark had a little blood showing and appeared really fresh. At this point, the defendant objected to this testimony and requested a mistrial. First, defense counsel argued that the testimony about these puncture wounds was an attempt by the [437]*437prosecution to demonstrate that the defendant had used drugs on previous occasions, which defense counsel characterized as prejudicial other crimes evidence. Secondly, defense counsel argued that the evidence about the older puncture wound was irrelevant and prejudicial. Defense counsel also argued that a comment on the fresh wound should not be allowed since no proper foundation was laid as to this officer’s knowledge of narcotics. The trial court overruled these objections and denied the motion for a mistrial.

On rebuttal, Lt. Spillman was called again as a witness and asked to examine defendant’s arm. Lt. Spillman did not find any track marks. Defense counsel objected and requested a mistrial which was denied.

Guilty knowledge is an essential element of the crime of possession of a narcotic drug. State v. Smith, 257 La. 896, 244 So.2d 824, 825 (1971). The prosecution must show not only that the accused possessed the substance identified as a narcotic drug, but also must show by direct or circumstantial evidence that the accused knew the substance he possessed was a narcotic drug. State v. Thomas, 329 So.2d 704, 707 (La.1976).

In State v. Smith, the defendant had been arrested and charged with possession of heroin. In that case, the defendant had thrown the heroin to the floor prior to his arrest.

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State v. Harris, 510 So. 2d 434, 1987 La. App. LEXIS 9839 (La. Ct. App. 1987).

510 So. 2d 434 (State v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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