State v. Livings

548 So. 2d 77, 1989 La. App. LEXIS 1444, 1989 WL 78884
CourtLouisiana Court of Appeal
DecidedJuly 17, 1989
DocketNo. CR87-1335
StatusPublished
Cited by3 cases

This text of 548 So. 2d 77 (State v. Livings) 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. Livings, 548 So. 2d 77, 1989 La. App. LEXIS 1444, 1989 WL 78884 (La. Ct. App. 1989).

Opinion

DOMENGEAUX, Judge.

The defendant, Kevin Livings, was charged by a bill of information with possession of cocaine with the intent to distribute, a violation of La.R.S. 40:967. On March 24, 1987, a jury of twelve unanimously found the defendant guilty as charged. On May 28, 1987, the trial judge sentenced the defendant to five years at hard labor. The defendant is appealing his conviction based on eight assignments of error.

FACTS

On June 20, 1986, Detectives Oswald Doucet and Darrell Fontenot of the Lafayette Police Department were patrolling the north side of Lafayette, Louisiana, near an establishment known as Freddie’s Drag Kitchen or Freddie’s Lounge. Detective Doucet, a narcotics officer with six years experience, testified that he conducted several raids at Freddie’s Drag Kitchen and that he has personally observed suspects being in possession of, distributing, and using cocaine on those premises. He testified that on occasion he has patrolled this area seven days a week, fourteen hours a day. As a result of this extensive surveillance, Detective Doucet and his car were well known in the area.

While patrolling the area that night, the officers parked their patrol car in front of Freddie’s, where they observed the defendant and an unidentified suspect in an apparent drug transaction in the parking lot. [79]*79The defendant appeared to have a white envelope in his hand. In Detective Dou-cet’s experience, he had learned that drugs were often carried in such envelopes.

When the defendant saw the officers, he ran toward the back of Freddie’s Drag Kitchen with the envelope still in his hand. Detective Fontenot exited the car and chased the defendant to the rear of the building. The detective saw the defendant run into a coulee located behind Freddie’s. The officers got back into their car and drove around the corner to a spot located on Bossier Street at the end of the coulee. From this viewpoint, the officers observed the defendant going from one side of the coulee to the other trying to hide. Before the defendant came out of the coulee, the officers observed him stomp something into the ground. The defendant then walked out of the coulee and over to the officers. The defendant no longer had the envelope in his possession.

Detective Doucet sent Detective Bruce Lyons, who had arrived at the scene, down into the coulee to search for the envelope. Detective Doucet directed Detective Lyons to the area where the defendant had been seen stomping on the ground. Detective Lyons found a tom, crumpled envelope in the coulee within three feet from where Detective Doucet had signaled him to go. The envelope was white on the outside with a blue interior. It contained seven small, plastic packets, each containing a white powdery substance. This substance was later identified as cocaine.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant first claims that the State failed to prove beyond a reasonable doubt that the cocaine found in the coulee was ever in his possession.1

When reviewing the sufficiency of evidence to support a conviction, an appellate court must determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant to have committed the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Chism, 436 So.2d 464 (La.1983). Where an essential element is proved by circumstantial evidence, the trier of fact, as well as the reviewing court, must accept as proved all that the evidence tends to prove and then only convict if every reasonable hypothesis of innocence is excluded. La.R.S. 15:438; State v. Jackson, 419 So.2d 837 (La.1982). Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense. State v. Bindom, 410 So.2d 749 (La.1982).

The officers saw a white envelope in the defendant’s hand when he was in the parking lot at Freddie’s Drag Kitchen. The defendant still had the envelope in his hand when he ran into the coulee. While the defendant was in the coulee, he was observed trying to stomp something into the ground. After the defendant left the coulee, the officers found an envelope containing seven packets of cocaine near the spot where the defendant was seen stomping something. Although no one saw him drop the envelope on the ground, there was sufficient evidence from which a trier of fact could infer that the envelope found was in fact the same one seen in the defendant’s hands in the parking lot at Freddie’s.

Defendant additionally alleges in the first assignment that the State failed to establish a chain of custody for the cocaine found in the coulee.

A chain of custody is proved by establishing custody of an object from the time it is seized until it is offered into [80]*80evidence. State v. Sweeney, 443 So.2d 522 (La.1983). A continuous chain of custody does not need to be established if the evidence as a whole establishes that it is more probable than not that the object introduced is the same object originally seized by the officers. State v. McCabe, 420 So.2d 955 (La.1982). The trial judge has great discretion in determining whether a sufficient foundation has been laid for the introduction of evidence. State v. Cobb, 419 So.2d 1237 (La.1982).

The record reveals that the State has established an adequate chain of custody for the drugs from the moment they were found in the coulee until the time they were admitted into evidence at trial. Detective Lyons testified that after he found the envelope he immediately handed the envelope and its contents to Detective Dou-cet. Detective Doucet testified that he transported the evidence to the police station, where he marked and tagged it. He then deposited it in a locker in the evidence locker room. Officer Mike Marlette, the evidence custodian for the Lafayette Police Department, testified that he has the only key to these lockers. Officer Marlette stated that he processed the evidence and transported it to the crime laboratory for testing. When the crime laboratory was through with testing, Officer Marlette personally retrieved the evidence and returned it to the police storage room, where it remained until the day of trial. At trial, Officer Marlette testified that all seals on the evidence package were intact.

Defendant argues that certain inconsistencies in the testimony offered at trial support his claim that the State did not lay a proper foundation regarding the evidentiary chain of custody. First, he notes that Detective Doucet stated the envelope and its contents were not wet, even though other testimony established that it had rained earlier that day. While Detective Lyons also testified that the envelope was dry, he did state that it had mud on it in the shape of a footprint. Second, defendant complains that the evidence was not found at the location noted on the evidence tag. The tag stated that the drugs were found at 300 Bossier Street, when in fact they were found off the street in the coulee. Detective Doucet explained that stating the drugs were found on Bossier Street was merely a landmark designation. The coulee was closer to Bossier Street than to any other street in the area.

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Related

State v. Lewis
736 So. 2d 1004 (Louisiana Court of Appeal, 1999)
State v. Stills
600 So. 2d 134 (Louisiana Court of Appeal, 1992)
State v. Livings
552 So. 2d 394 (Supreme Court of Louisiana, 1989)

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Bluebook (online)
548 So. 2d 77, 1989 La. App. LEXIS 1444, 1989 WL 78884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-livings-lactapp-1989.