State v. Johnson

404 So. 2d 239
Supreme Court of Louisiana·Decided September 8, 1981·No. 81-KA-0033·Published·Cited by 78 cases

Opinion

404 So.2d 239 (1981)

STATE of Louisiana
v.
Harden JOHNSON and James Kelly.

No. 81-KA-0033.

Supreme Court of Louisiana.

September 8, 1981.
Rehearing Denied October 16, 1981.

*242 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Lindsay Larson, John Craft, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.

Lawrence J. Boasso and William Noland, New Orleans, for Kelly.

Roy V. Ladner, New Orleans, for Johnson.

WATSON, Justice.[*]

Defendants, Warden Johnson and James Kelly, were charged by bills of information with two counts of possession with intent to distribute controlled dangerous substances, to-wit: Preludin and Dilaudid. A jury found James Kelly guilty as charged and Harden Johnson guilty of possession.

Kelly was adjudicated a third offender and sentenced to twenty years at hard labor on Count I and ten concurrent years at hard labor on Count II. Johnson was sentenced to three concurrent years in Parish prison on each count. The two defendants have appealed their convictions and sentences.

FACTS

Search warrants were issued for apartments E and F in the Magnolia Housing Project. Two officers banged on the back door of apartment E and Harden Johnson exited through the front door of Apartment F into the arms of two other police officers. There are separate stairwells for the front and rear entrances of the two third floor apartments. The officers entered apartment F with Johnson and discovered James Kelly in the bathroom attempting to dispose of a bottle marked Vitamin C. The bottle which was removed from the commode contained eighty yellow tablets and forty-eight pink tablets. The yellow pills were Dilaudid, a trade name for dihydromorphinone, which is an opium derivative or "downer". The pink pills were Preludin (phenmetrazine) a stimulant or "upper". The testimony was that Preludin tablets have a street value of approximately $18 each and Dilaudid tablets have a street value of from $35 to $55 each. Apartment F is the residence of Harden Johnson. James Kelly was a visiting friend. Also arrested in apartment F was Carlin Morgan. A brown lady's purse in apartment F contained $316.00.

The bills of information charge the crimes under the wrong statute. Both Preludin or phenmetrazine, and Dilaudid are Schedule II drugs. LSA-R.S. 40:964. Defendants were charged with possession and intended distribution of Schedule IV drugs under LSA-R.S. 40:969, whereas they should have been charged under LSA-R.S. 40:967, which deals with Schedule II drugs.

The Louisiana Constitution of 1974 in Article 1 § 13 provides that an accused in a criminal prosecution shall be informed of the nature and cause of the accusation against him. An information is a written accusation of crime. LSA-C. Cr.P. art. 384. It must inform the defendant of the statutory basis of his offense. State v. Gainey, 376 So.2d 1240 (La., 1979). However, clerical errors in statutory citations do not warrant reversal of convictions. State v. Hamilton, 297 So.2d 419 (La., 1974). If an indictment states the essential facts of an offense charged, an error or omission in the statutory citation does not require reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. LSA-C.Cr.P. art. 464. The trial court allowed the State to amend its answer to defendants' bill of particulars to show that the correct statute is LSA-R.S. 40:967. Defendants were not misled by the erroneous citation and the fact that they were charged under the wrong statute is not ground for reversal of their convictions. State v. James, 305 So.2d 514 (La., 1974).

*243 ASSIGNMENT OF ERROR NUMBER ONE

Defendants contend that the trial court erred in restricting their inquiry into the reliability of the confidential informant whose information provided the basis for police surveillance, the affidavit and the search warrant. State objections were sustained to various questions about the informant. There were no contemporaneous objections to the rulings, and the alleged errors cannot be raised on appeal. LSA-C. Cr.P. art. 841.[1]

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants contend that the trial court erred in not allowing a question about evidence seized relating to other persons arrested at the same time as Johnson and Kelly. There was no contemporaneous objection. LSA-C.Cr.P. art. 841, supra.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendants contend that the evidence seized should have been suppressed because the search warrant is defective on its face and does not establish probable cause for the search.

The search warrant initially described the premises as 2705 Belmont Street, apartment D. The D was crossed out and replaced with a handwritten F. The correction was initialled by the magistrate and the two affiants. It is contended that the handwritten F resembles a C and this causes an ambiguous discrepancy which is fatal to the warrant's validity.

F rather than C is the correct letter. Apartments E and F had been under surveillance. A separate warrant had been executed for E. This warrant could not reasonably have authorized the search of any apartment other than F. Officers McNeil and Peralta, who had conducted the surveillance and executed the affidavits, knew that the two apartments to be searched were E and F. They were executing the warrant for apartment E, while other officers were executing the warrant for Apartment F, the only other third floor apartment. There was no danger of the wrong premises being searched and the description is therefore not deficient. State v. Cobbs, 350 So.2d 168 (La., 1977). The alteration did not invalidate the warrant. State v. Welsh, 371 So.2d 1314 (La., 1979).

It is also contended that the affidavit did not establish probable cause for the search. The affidavit recites that a reliable confidential informant had been present in Apartment E, the residence of Sharon Rudolph, and discussed obtaining Dilaudid. Rudolph was given money by the informant, went to apartment F, her sister's residence, returned to apartment E and produced the purchased narcotics. Rudolph advised the informant that she had to conceal the drugs in her sister's residence because the police were watching her. The informant was told drugs could be obtained when Rudolph was not at home directly from her sister in apartment F. Officers McNeil and Peralta undertook surveillance of apartments E and F and observed various people enter and exit the two apartments on Wednesday, August 23. The surveillance was limited and the detectives, according to their testimony on the motion to suppress, could not see the entrance to apartment F. The informant advised by telephone on Thursday, August 24, that he had returned to apartment E but Sharon Rudolph was not at home. The informant knocked on the apartment F door of her *244 sister, Harden Johnson, to secure Dilaudid. Harden asked the confidential informant if he wanted Dilaudid and when he replied affirmatively she fetched the narcotics from the rear of the residence. The two officers undertook another surveillance and again observed people coming and going from the two apartments. They then executed the affidavit.

The reliable informant reported that Dilaudid was available for sale in apartment F on at least two occasions. The second report was on August 24, the same day that the search warrant was obtained. Although t

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