State v. Matthews

632 So. 2d 294, 1993 WL 511986
CourtLouisiana Court of Appeal
DecidedNovember 24, 1993
Docket93 KA 0275
StatusPublished
Cited by16 cases

This text of 632 So. 2d 294 (State v. Matthews) 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. Matthews, 632 So. 2d 294, 1993 WL 511986 (La. Ct. App. 1993).

Opinion

632 So.2d 294 (1993)

STATE of Louisiana
v.
Larry MATTHEWS[1] a/k/a Larry Lewis.

No. 93 KA 0275.

Court of Appeal of Louisiana, First Circuit.

November 24, 1993.
Rehearing Denied March 21, 1994.

*295 Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for plaintiff-appellee State.

Wayne D. Mancuso, Harahan, for defendant-appellant Larry Matthews a/k/a Larry Lewis.

Before WATKINS, SHORTESS and FOGG, JJ.

WATKINS, Judge.

Defendant, Larry Matthews, a/k/a Larry Lewis, was charged by grand jury indictment with three counts of distribution of cocaine, in violation of LSA-R.S. 40:967. He pled not guilty and, after a jury trial, was found guilty as charged. Defendant was sentenced to a term of imprisonment of 240 months (20 years) on each count, to be served concurrently, with credit for time served. Defendant appeals, urging 23 assignments of error. Assignment of error number 16 was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

FACTS

On July 18, July 19, and August 17 of 1991, defendant sold rock cocaine to undercover police officers. The following facts were revealed at trial. Sergeant Drew David of the Vermillion Parish Sheriff's Office was assigned to the Lafourche Parish Sheriff's Office to work as an undercover drug agent. On July 18, 1991, Sgt. David was paired with a confidential informant, Michael Breaux, who introduced him to defendant. Sgt. David and Mr. Breaux were in the parking *296 lot of a convenience store in Thibodaux, Louisiana, when defendant rode up on his bicycle. Mr. Breaux introduced defendant to Sgt. David and asked defendant if he had any "stones" (crack cocaine). Defendant responded that he did not have any at that time but, if they took him for a ride, he could get some. Defendant loaded his bicycle into Sgt. David's vehicle, and all three men drove down Martin Luther King Street, Thibodaux, Louisiana. Defendant told them to stop the car, and he exited the vehicle and was gone for about two minutes. Sgt. David testified that he did not know where defendant went but, when he returned, he had one rock of cocaine, for which Sgt. David paid him $30.

On July 19, 1991, Sgt. David was riding in his vehicle around the Midland Projects area when he saw defendant. Sgt. David drove up to defendant and asked him if he had any "stones." Defendant replied "no" but knew where to get some and entered Sgt. David's vehicle. They traveled down Barbier Street, and defendant told him to stop. Defendant told Sgt. David to give him $50 and he would return with a rock. Sgt. David gave defendant the money; defendant left the vehicle and then returned with a rock.

Officer Gary Stevenson of the Baldwin Police Department testified that he was on loan to the Lafourche Parish Drug Task Force and paired up with a confidential informant (CI), whose identity was not revealed at trial. On August 17, 1991, he and the CI were driving around in Thibodaux, Louisiana, when the CI saw defendant and called him over. Defendant asked him what they were looking for; and Officer Stevenson replied a "20," meaning a $20 rock of cocaine. Defendant opened his hand and revealed about five rocks of cocaine in his palm. Defendant gave Officer Stevenson one rock, and Officer Stevenson gave defendant $20. Subsequently, defendant was arrested.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND TWENTY-TWO:

In these assignments of error, defendant contends that the jurisdiction of the trial court was not established. Specifically, in assignments of error numbers one and two, defendant alleges that the state failed to prove that the offenses occurred in Lafourche Parish and that the prosecutor did not state in his opening statement that he had to prove that the crimes occurred in Lafourche Parish. In assignment of error number 22, defendant alleges that the trial court erred by failing to instruct the jury that, in order to convict, they had to find that defendant was guilty and that the offenses occurred in Lafourche Parish.

[1] LSA-C.Cr.P. art. 615 provides:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

Because the defendant did not file a motion to quash raising venue as an issue, we find no merit to his argument.

[2] LSA-C.Cr.P. art. 766 provides:

The opening statement of the state shall explain the rature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

Article 615 clearly states that the venue shall not be considered an essential element to be proven by the state at trial. Article 766 does not require the state, in its opening statement, to address the question of venue.

Defendant did not object to the jury instructions given by the trial court and did not submit his own instructions to be given. We find that defendant cannot raise the question of venue for the first time on appeal. Therefore, these assignments of error are meritless.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant asserts that the trial court erred by failing to tell the jury, during preliminary instructions, that defendant should be presumed innocent until proven guilty. Specifically, defendant contends that, after the jurors were sworn and before the commencement of trial, the trial court explained to them how the trial was to proceed but *297 failed to instruct them as to defendant's presumption of innocence.

LSA-C.Cr.P. art. 804 requires that a trial court shall charge the jury that an accused is presumed innocent until each element of the crime is proven beyond a reasonable doubt. We know of no requirement for a trial court to instruct the jury about the presumption of innocence during preliminary instructions. This assignment of error is meritless.

ASSIGNMENT OF ERROR NUMBER FOUR:

In number four, defendant asserts that it was error for evidence to be admitted of defendant's prior drug dealings without notice to defendant under Prieur, LSA-C.Ev. art. 404(B) and former LSA-R.S. 15:445-446. Specifically, in his brief, defendant refers to the testimony of Michael Breaux.

During the cross-examination of Mr. Breaux by the defense, the following exchange occurred:

Q: Mr. Breaux, did you and Mr. Matthews ever smoke crack together?
A: Yes, we did.
Q: How often would you do that?
A: The Thursdays, Fridays, and Saturdays that I would see him.
....
Q: When you would get together with Larry on those Thursdays, Fridays and sometimes Saturday night, who would instigate the call? Would you call him?
A: Sometimes I would, and sometimes he'd call me.
Q: And you all would go get dope together?
A: We would.

During redirect examination of Mr. Breaux, the following exchange occurred:

Q: How many times in the four or five-month period before you went to work for the police did this man [defendant] go get you crack cocaine?
A: It was quite often. How many times? It's hard to say. I mean every time I wanted to use it that's about who I'd go to.

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

Related

State v. Thompson
111 So. 3d 580 (Louisiana Court of Appeal, 2013)
State of Louisiana v. Randall C. Thompson
Louisiana Court of Appeal, 2013
Melendez-Diaz v. Massachusetts
557 U.S. 305 (Supreme Court, 2009)
State v. Pugh
12 So. 3d 1085 (Louisiana Court of Appeal, 2009)
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. DERKINS
966 So. 2d 623 (Louisiana Court of Appeal, 2007)
State v. Price
952 So. 2d 112 (Louisiana Court of Appeal, 2006)
Commonwealth v. Williams
69 Va. Cir. 277 (Charlottesville County Circuit Court, 2005)
State v. Cunningham
903 So. 2d 1110 (Supreme Court of Louisiana, 2005)
State v. Clark
851 So. 2d 1055 (Supreme Court of Louisiana, 2003)
State v. Burnett
768 So. 2d 783 (Louisiana Court of Appeal, 2000)
State v. Amato
698 So. 2d 972 (Louisiana Court of Appeal, 1997)
State v. Joseph
685 So. 2d 237 (Louisiana Court of Appeal, 1996)
State v. Gatch
669 So. 2d 676 (Louisiana Court of Appeal, 1996)
State v. Fontenot
664 So. 2d 523 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
632 So. 2d 294, 1993 WL 511986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-matthews-lactapp-1993.