State v. Landry

560 So. 2d 598, 1990 La. App. LEXIS 802, 1990 WL 42685
Louisiana Court of Appeal·Decided April 12, 1990·No. No. 89-KA-1133·Published·Cited by 2 cases

Opinion

SCHOTT, Chief Judge.

Defendant was convicted of distribution of dihydrocodeinone in violation of R.S. 40:968 and sentenced to four years at hard labor.

Officer Darren Hartman testified that he and an informant, Howard Ard, went to the defendant’s home on July 12, 1986; one of defendant’s children admitted them and they went upstairs to defendant’s bedroom where Hartman purchased two tablets from defendant. A forensic scientist testified that the tablets were positive for dihy-drocodeinone.

Defendant’s daughter, Sally, testified that she admitted Ard to the house, but she did not see anyone with him. After he went upstairs to see her father she heard him say he would not sell his medicine, she heard him yelling, and she saw Ard and a police officer come downstairs and leave the house. On cross examination she testified that she knew Hartman was a police officer because he had come to their house on July 11 and tried to buy drugs. She stated that she was arrested as a result of the July 11 incident and her mother was convicted of selling drugs.

Henry Landry, defendant's son, testified that he heard his father cursing Ard and Hartman, telling them he would not sell his medicine to them. Sherry Landry, another daughter, testified to substantially the same effect. Defendant testified that the tablets were prescription medication, but he denied selling any to Hartman.

By his first and third assignments defendant argues that much of the testimony of Officer Hartman and his supervisor, Sergeant Miller, was inadmissible as irrelevant or containing hearsay. This testimony provided the background of an undercover operation called “Operation Eightball” which consisted of the use of Howard Ard as an informant, surveillance over an extended period of time, and numerous arrests and convictions including defendant’s arrest. Defendant argues that this evidence prejudiced his case because the only witness testifying against him was Hartman and the evidence served to bolster his credibility before the jury.

We are not convinced that this testimony was objectionable hearsay or irrelevant. Miller’s testimony concerning the overall operation was based on his personal knowledge that it was taking place. He was personally involved in it. It was not offered to prove the truth of the details which were supplied to him such as dates and places of arrests and names of persons arrested and he did not testify as to such details. As to relevance, Miller’s and Hartman’s testimony properly presented the pertinent background leading to defendant’s arrest, the background on Ard to show his reliability as an informant, and an explanation of why the police did not arrest defendant immediately, but waited until the whole operation was completed.

Even assuming that some of this evidence was inadmissible we would conclude that its admission constituted harmless error because we are convinced that it did not influence the jury or contribute to the verdict. Defendant’s argument that this extensive background unduly and artificially built up and fortified Hartman’s testimony to make him a more credible witness is speculation.

[600]*600Defendant’s more serious assignments concern testimony by his daughter concerning her arrest and her mother’s conviction for selling drugs. While his arguments that this testimony was irrelevant and inadmissible are meritorious, We have concluded that the admission of such evidence did not constitute reversible error considering the record as a whole. A thorough and careful reading of the testimony of defendant’s daughter Sally, is necessary in order to evaluate defendant’s arguments on these assignments.

On direct examination she testified that Ard, her next door neighbor, came to the door and asked to see her father, she didn’t see anyone with him, and she told him “to go ahead straight up.” She thought her father was sleeping, she heard Ard go up, and she heard her father yelling and saying he would not sell his medicine. Then she saw Ard and a police officer coming down the steps. Her direct examination concluded as follows:

Q. Did you know Hartman prior to that date?
A. I know Hartman because on another occasion—
Q. Okay, but did you at any time prior to that date inform your dad of the fact that Hartman was a police officer?
A. Yes, I did.

The prosecutor began his cross examination as follows:

Q. You say you knew Hartman was a police officer?
A. Yes, I did.
Q. From what occasion did you know him to be a police officer?
A. He came to my house on the 11th when my momma and my daddy and everybody — was home. He came with Howard, Ard, and Howard Ard said that was his cousin. I said, “Ma, that’s a police officer.” He said, “No, I am not. I am his cousin.” I said, “No, you are a police officer.”
Q. What day did he come by your house?
A. The 11th.
Q. Was this before this incident with your father?
A. Uh-huh, sure did.
Q. And did he buy anything on that incident?
A. No, he never, because my momma told him to get out.
Q. Do you recall being arrested as a result of that?
MR. ESCUDIER:
Objection, Your Honor. Arrests absolutely cannot get in this, and it’s prejudicial to bring in the fact of whether or not she was arrested.
MR. DIAZ:
Well, let me ask you another question.
MR. ESCUDIER:
Mr. Diaz knows the only thing we can go into is convictions. She has never been convicted of anything.
THE COURT:
Sustained.
BY MR. DIAZ:
Q. Let me ask you do you recall your mother being convicted of distribution of drugs as a result of that incident?
A. I have to answer this?
MR. ESCUDIER:
Yes, you do, if you have knowledge of it. (emphasis supplied)
THE WITNESS:
Yes.

From this point she testified on cross examination that Hartman had arrested her and her brother for selling drugs and because “he [the brother] has a baby on the way” and her mother didn’t want them to go to jail, the mother pled guilty to selling drugs to Hartman. There was no objection whatsoever to this testimony. Only after the prosecutor asked for the exact address of the house where this happened did counsel object and this was on the basis that the question about the address was repetitious. At another point defense counsel objected to a question as being argumentative. Without objection from defense counsel her testimony continued as follows:

Q. Well, what makes you remember this date?
[601]*601A.

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State v. Landry, 560 So. 2d 598, 1990 La. App. LEXIS 802, 1990 WL 42685 (La. Ct. App. 1990).

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