State v. Martinez-Sanchez

563 So. 2d 509, 1990 La. App. LEXIS 1462, 1990 WL 71729
CourtLouisiana Court of Appeal
DecidedMay 31, 1990
DocketNo. KA-6433
StatusPublished
Cited by1 cases

This text of 563 So. 2d 509 (State v. Martinez-Sanchez) 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. Martinez-Sanchez, 563 So. 2d 509, 1990 La. App. LEXIS 1462, 1990 WL 71729 (La. Ct. App. 1990).

Opinion

WILLIAMS, Judge.

Defendants, Manuel Martinez-Sanchez, Stanley J. Jones and Roberto Morales, were charged by bill of information1 on [510]*510July 19, 1983 with possession of 200 grams or more, but less than 400 grams, of cocaine, a violation of LSA-R.S. 40:967.2 Defendants filed a motion to suppress the cocaine and other evidence, alleging insufficiency of the affidavit supporting the search warrant. On October 17, 1984, this Court denied defendants’ writ application on the merits. State v. Cabello, No. K-1791 (La.App. 4th Cir. Oct. 17, 1984). After a jury trial, defendants were found guilty as charged. They were each sentenced to thirty years at hard labor and a $100,000.00 fine.

Defendants filed this appeal, alleging that the trial court erred 1) in denying defendants’ motion to suppress the evidence; 2) in referring to a prior conviction of the defendants within the hearing of the entire jury venire at the start of voir dire; 3) in denying particular challenges for cause; 4) in denying defendants’ motion for a mistrial following allegedly prejudicial remarks made by the State’s attorney during closing argument; 5) in its instructions to the jury that the degree of the offense is determined by the total weight of cocaine plus adulterants, not just pure cocaine; and 6) in imposing an excessive sentence.

On original hearing, this Court held that the trial court committed reversible error by referring to prior convictions of the defendants to the entire jury venire. State v. Martinez-Sanchez, 550 So.2d 232 (La. App. 4th Cir.1989). The Louisiana Supreme Court reversed and remanded the case to this Court for consideration of the remaining assignments of error. After reviewing the record and the applicable law, we hold that the trial court erred in its instructions to the jury that the amount of cocaine is determined not only by the amount of pure cocaine, but adulterants as well. Accordingly, defendants’ convictions of possession of 200 grams or more, but less than 400 grams, of cocaine are reversed. Judgment is entered for each defendant for possession of twenty-eight grams or more, but less than 200 grams, of cocaine, and the case is remanded to the trial court for resentencing. Remaining assignments of error as to defendants’ convictions are without merit.

Facts

On May 20, 1983, officers of the St. Bernard Parish Sheriff’s Department met with a “concerned citizen” who informed them about unusual traffic to and from the house at 3700 Chalona Drive in St. Bernard Parish. The “concerned citizen” stated that he had observed the unusual traffic for two weeks and that on May 18 he had seen small, wrapped packages taken out of the residence and placed into a red car with the license plate number 383X541.

The officers then began surveillance of 3700 Chalona and observed a large amount of unusual traffic entering and leaving the residence. At least two of the persons seen entering the residence had previous arrest records for possession and distribution of controlled dangerous substances. On May 25, 1983, the officers obtained a search warrant based on the information given by the “concerned citizen” and on the subsequent surveillance. The warrant was executed that night.

The officers executing the warrant went to a side door that opened into the kitchen. One of the officers knocked before entering, and Castillo pulled back the curtain which covered a window in the door. When the officers identified themselves, Castillo yelled something in Spanish, and the occupants of the kitchen scattered. The officers forced their way in and arrested everyone in the house. The officers seized two guns, cocaine, a gram scale, over $9,000.00 cash, a passport for Martinez-Sanchez and many photographs.

Motion to Suppress

Defendants first contend that the trial court erred in denying their motion to suppress the evidence, asserting insufficiency of the affidavit supporting the search warrant.

[511]*511In a previous writ application in this case, we fully considered the issue raised by defendants here and held that the affidavit supporting the search warrant was sufficient. State v. Cabello, No. K-1791 (La.App. 4th Cir. Oct. 17, 1984). Defendants present no additional argument on appeal. This assignment is without merit. Reference to Prior Convictions during Voir Dire

Defendants Martinez-Sanchez and Morales assert that the trial court erred in denying their motion for a mistrial after the court referred to a prior conviction of the defendants within hearing of the entire jury venire at the start of voir dire.

On original hearing, this Court held that the trial court’s remark constituted a mandatory ground for mistrial under LSA-C. Cr.P. art. 770, reversed defendants’ convictions and remanded for a new trial. The Supreme Court granted writs and reversed, holding:

Because the first prospective juror had not been called for voir dire examination at the time the trial judge made his inad-vertant remarks, the mandatory provisions of La.C.Cr.P. art. 770(2) did not require a mistrial. The remarks were otherwise not so prejudicial that they deprived the defendants of a fair trial. [Citations omitted.]

Accordingly, this assignment of error is without merit.

Challenge for Cause

Defendants Martinez-Sanchez and Morales assert that the trial court erred when it denied several of defendants’ challenges for cause during voir dire. However, because defendants did not brief this assignment of error, it is deemed abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

Prejudicial Remarks during Closing

Defendants Martinez-Sanchez and Morales contend that the trial court erred in denying defendants’ motion for a mistrial after the prosecution allegedly made an appeal to prejudice against Cubans during closing argument in contravention of LSA-C.Cr.P. arts. 774 and 770(1). We disagree.

Defendants complain about the following statement made by the prosecutor:

So, the case boils down to what were these individuals at 11:30 at night at a kitchen table with a sifter, 248 grams of cocaine, a grinder in the kitchen, scales, $9,000.00 in money, guns, these are not the poor boat people who fled communist Cuba to escape the oppression as they were painted in their opening statements.
I would imagine things were going well for them. God bless America; the land of our opportunity. Let’s be cool in the USA. We’ll take a message to them. Let the message be that we, the jury, won’t tolerate it.

LSA-C.Cr.P. art. 774 delineates the proper scope of argument at trial. It provides that argument shall be limited to evidence, conclusions of fact and applicable law and that it shall not appeal to prejudice. Where argument exceeds the scope of article 774, LSA-C.Cr.P. arts. 770 and 771 are invoked. LSA-C.Cr.P. art. 774, comment (c).

LSA-C.Cr.P. art. 770 provides the mandatory grounds for mistrial based upon prejudicial remarks. That article reads, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

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Bluebook (online)
563 So. 2d 509, 1990 La. App. LEXIS 1462, 1990 WL 71729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martinez-sanchez-lactapp-1990.