State v. Landry

583 So. 2d 911, 1991 WL 119727
CourtLouisiana Court of Appeal
DecidedJune 27, 1991
DocketKA 90 1260
StatusPublished
Cited by15 cases

This text of 583 So. 2d 911 (State v. Landry) 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. Landry, 583 So. 2d 911, 1991 WL 119727 (La. Ct. App. 1991).

Opinion

583 So.2d 911 (1991)

STATE of Louisiana
v.
Saul LANDRY.

No. KA 90 1260.

Court of Appeal of Louisiana, First Circuit.

June 27, 1991.

Camille Morvant, Dist. Atty.'s Office, Thibodaux, for plaintiff-appellee State.

John Jewell Pace, Darrell D. Civitanovich, Anthony J. Hebert, Baton Rouge, for defendant-appellant Saul F. Landry.

Before SAVOIE, CRAIN and FOIL, JJ.

CRAIN, Judge.

Saul Landry was indicted for distribution of methylenedioxymethamphetamine (ecstasy), a violation of La.R.S. 40:966(A)(1). He pled not guilty and, after trial by jury, was convicted as charged. Prior to sentencing, defendant filed a motion to recuse the sentencing judge, motion for new trial, and motion for post verdict judgment of acquittal. After a hearing before a different judge, the motion to recuse was denied. Before sentencing, the original judge denied the motion for new trial and motion for post verdict judgment of acquittal. Defendant was sentenced to serve a term of fifteen years imprisonment at hard labor, suspended upon defendant *912 serving two years in the parish jail.[1] Defendant then is to serve five years active, supervised probation with the following special conditions: (1) pay a fine of $15,000.00; (2) pay $1,500.00 to Lafourche Parish Sheriff's Office for the cost of the investigation; (3) pay $50.00 per month as a supervision fee; (4) submit to periodic searches; (5) submit to periodic urinalysis or blood testing; (6) not enter any public school grounds without written permission of probation officer; and (7) not enter any place where alcohol is the principal commodity sold.[2] After sentencing, the trial court denied defendant's request for a post-conviction bond pending appeal.

Defendant has appealed, urging seven assignments of error.

On September 29, 1988, Sgt. Mike Couvillon, a narcotics agent with the Vermillion Parish Sheriff's Office, was working an undercover operation for the Lafourche Parish Sheriff's Office. Accompanied by his backup, Agent Mike Fanguy, an officer with the Thibodaux Police Department, and by a confidential informant, Pete Deselle, who testified at the trial, Sgt. Couvillon went to The Horse Lounge in Thibodaux. Inside the bar, Deselle introduced Sgt. Couvillon as "Tony" to defendant. Deselle told defendant that "Tony" was Deselle's cousin from Lafayette. Sgt. Couvillon asked defendant if he had a couple of "Tabs" (ecstasy tablets) for sale. When defendant said, "Yes," Sgt. Couvillon asked for the price. Defendant responded that the tablets cost $15.00 each. Sgt. Couvillon indicated his desire to purchase two tablets; and defendant instructed the agent to follow defendant. Once in another part of the bar, defendant pulled out a box which contained twenty to thirty tablets, removed two tablets, and gave them to Sgt. Couvillon. Sgt. Couvillon paid defendant $30.00. Because Sgt. Couvillon continued to work undercover in the area, defendant was not arrested until a later date.

INTRODUCTION OF REPORT FROM CRIMINALISTICS LABORATORY AND SUFFICIENCY OF THE EVIDENCE:

In assignment of error number three, defendant argues that the trial court erred when it admitted, over defendant's objection, the report of the criminalistics laboratory into evidence. Defendant maintains that, because he made a timely request for the issuance of a subpoena for the technician who prepared the report, the report should not have been admitted. Defendant concludes that, as a result of the court's error, his constitutional rights of confrontation and cross-examination were denied. In response, the state contends that defendant waived the irregularity concerning admission of the report by waiting to object until the state sought to introduce the report, rather than objecting before the trial began. In the fourth assignment, defendant argues that, because the report should not have been admitted, the state's evidence that the substance distributed by defendant was ecstasy is insufficient.

La.R.S. 15:499 authorizes criminalistics laboratories to "make proof of examination and analysis of physical evidence" by use of a certification which includes certain specified information. In criminal cases, the trial court is required to receive as evidence any certificate, issued in accordance with La.R.S. 15:499, as "prima facie proof of the facts shown thereon, and as *913 prima facie proof of proper custody of the physical evidence." La.R.S. 15:500. For the state to be able to introduce the certificate into evidence, it must give written notice of its intent to offer proof by the certificate at least ten days before the trial begins. La.R.S. 15:501(A). After receiving the state's notice, if the defendant desires to cross-examine the technician who prepared the report, he must comply with the following provisions:

The party against whom such certificate is offered shall be permitted to subpoena on cross-examination the person who performed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.

La.R.S. 15:501(B) (prior to its amendment by 1990 La.Acts, No. 850, § 1) (emphasis added).

La.R.S. 15:501(B) thus assures the criminal defendant's constitutional right of confrontation. See La.Const. art. I, § 16. The procedure established by this statute relieves the party desiring to introduce the certificate of the burden of having to produce the person who performed tests on the evidence but allows the opposing party to subpoena under cross-examination the person performing the tests. State v. Davis, 438 So.2d 1288, 1290 (La.App. 3d Cir.1983), writ denied, 445 So.2d 455 (La. 1984). The purpose of these statutes also has been described as follows:

... to inform a defendant that such a certificate exists and that it will be used against him. It prevents any confusion or surprise, and it aids the defendant in preparing an adequate defense. It also relieves crime lab personnel from the necessity of appearing at trial when there is no real question or issue surrounding the validity of the analysis performed by the crime lab technician.

State v. Mims, 524 So.2d 526, 536 (La.App. 2d Cir.), writ denied, 531 So.2d 267 (La. 1988). The statute does not relieve the state of its burden to go forward with proof of the elements of the crime. See City of Shreveport v. Burroughs, 511 So.2d 782, 783 (La.App. 2d Cir.1987).

The language of La.R.S. 15:501(B) is clear and unambiguous. If the person against whom a certificate of a criminalistic laboratory is to be offered has "requested" a subpoena of the person who analyzed the evidence at least five days before commencement of trial as defined in La.C.Cr.P. art. 761, or if the person subpoenaed responds to the subpoena although it was not timely requested, then the certificate "shall not be" prima facie proof of its contents. Given these circumstances, the trial court errs if it admits the certificate into evidence. See City of Shreveport v. Burroughs, 511 So.2d at 783.

In the instant case, defendant made a timely request for issuance of the subpoena.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Blueford
137 So. 3d 54 (Louisiana Court of Appeal, 2014)
State v. Bowie
101 So. 3d 46 (Louisiana Court of Appeal, 2011)
State of Louisiana v. Tracy Wayne Bowie
Louisiana Court of Appeal, 2011
State v. Beauchamp
49 So. 3d 5 (Louisiana Court of Appeal, 2010)
State ex rel. C.D.
971 So. 2d 496 (Louisiana Court of Appeal, 2007)
State in the Interest of C.D.
Louisiana Court of Appeal, 2007
State v. Cunningham
903 So. 2d 1110 (Supreme Court of Louisiana, 2005)
Holderfield v. Jones
903 F. Supp. 1011 (E.D. Louisiana, 1995)
State v. Gamberella
633 So. 2d 595 (Louisiana Court of Appeal, 1993)
State v. Matthews
632 So. 2d 294 (Louisiana Court of Appeal, 1993)
State v. Sanders
618 So. 2d 904 (Louisiana Court of Appeal, 1993)
State v. Burton
615 So. 2d 1042 (Louisiana Court of Appeal, 1993)
State v. Mays
612 So. 2d 1040 (Louisiana Court of Appeal, 1993)
State v. Mitchell
606 So. 2d 17 (Louisiana Court of Appeal, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
583 So. 2d 911, 1991 WL 119727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-landry-lactapp-1991.