State v. Mitchell

498 So. 2d 1190
Louisiana Court of Appeal·Decided December 10, 1986·No. CR 86-497·Published·Cited by 5 cases

Opinion

498 So.2d 1190 (1986)

STATE of Louisiana
v.
Robert D. MITCHELL, Jr.

No. CR 86-497.

Court of Appeal of Louisiana, Third Circuit.

December 10, 1986.

*1191 John M. Crochet, Public Defenders' Office, Lake Charles, for defendant-appellant.

Richard Ieyoub, Dist. Atty., Saundra Isaac, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before GUIDRY, DOUCET and YELVERTON, JJ.

GUIDRY, Judge.

Defendant, Robert Mitchell, Jr., was charged on January 27, 1986, by a bill of information with possession of a Schedule II controlled dangerous substance, pentazocine (Talwin), a violation of La.R.S. 40:967(C). He was tried before a jury of six persons and found guilty as charged on April 7, 1986. That same day the State filed another bill of information charging the defendant as a habitual offender (second offense) under La.R.S. 15:529.1. On April 11, 1986, the defendant appeared before the court and, after being advised of his rights by the trial judge, admitted his habitual offender status and was sentenced to five (5) years with the Department of Corrections.

From that conviction and sentence, the defendant appeals assigning the following as errors:

1. The verdict was not supported by the law and the evidence.
2. The trial court erred in failing to grant a recess upon defense motion for "continuance".
3. Defendant was denied effective assistance of counsel at trial.
4. The sentence imposed was excessive.
5. The trial judge failed to adequately state the reasons for sentence and the factual basis therefor.

ASSIGNMENT OF ERROR NO. 1

Officer Grant Willis, who was employed by the Lake Charles Police Department at the time of the incident which led to this prosecution, testified to the following facts at trial. At approximately 11:00 p.m. on November 8, 1985, he was on routine patrol in the area of Railroad and Louisiana Avenues in Lake Charles. As he proceeded in an easterly direction on Railroad Avenue, he observed Mitchell standing in front of the Red Star Drug Store. Mitchell, at that time, was facing in an easterly direction. The defendant turned, and upon observing the approaching police unit, threw a clear plastic bag toward the building. The officer pulled into the parking lot of the business next door to the drug store, exited his vehicle and approached the defendant who had started to walk away from him. The officer then noticed the clear plastic bag next to the building, which he retreived and identified as the same item the defendant had thrown.

In the bag the officer found hand-rolled marijuana cigarettes, a syringe, and a match box holding two foil packets containing tripelennamine, a non-controlled substance, and pentazocine, a Schedule II controlled substance. As the officer was arresting him, the defendant struck the officer and ran away. A few days later, after obtaining an arrest warrant, Officers Willis and Hinch arrested the defendant. According to the officers at the time of arrest, after being read his Miranda warnings, the defendant voluntarily stated "that he was only selling the dope just to get money like everybody else and that he had escaped from Officer Willis because he wanted to see his girlfriend".

The defendant was convicted on the basis of the direct testimony of Officer Grant Willis, the oral inculpatory statements made to Officers Willis and Hinch, and the laboratory report from the Calcasieu Parish Sheriff's Department laboratory identifying the contents of the bag as controlled substances.

The standard of appellate review in cases involving challenges to the sufficiency of evidence is whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable *1192 doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984).

In reviewing the evidence presented, the officers' testimony, the defendant's inculpatory statements, and the laboratory report, in a light most favorable to the prosecution, we find that any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

We have chosen to address this assignment at this point since it deals with the testimony of Officer Grant Willis. Defendant argues that Officer Willis' testimony concerning the bag containing the pentazocine was conclusory and a mere opinion of which he was not qualified to testify. The officer initially testified that he saw the defendant throw "something" from his right hand against the building. It was not until the prosecutor inquired into the identity of the "something" that Officer Willis identified the "something" as a "clear plastic bag". Defendant argues that because defense counsel allowed such testimony to be introduced without objection, he was prejudiced and denied effective counsel.

Recently, in State v. Deaton, 486 So.2d 1134 (La.App. 2d Cir.1986), our brethren of the Second Circuit, with whom we agree, stated:

"In State v. Berry, 430 So.2d 1005 (La.1983), the Louisiana Supreme Court essentially anticipated Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which held that the standard of review to determine effectiveness of counsel is that of "reasonably effective assistance." This jurisprudence holds that in order to support a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense to the extent that the defendant as a result was deprived of a fair trial—i.e., a trial with a reliable result.
Claims of ineffective assistance of counsel as a general rule are more properly raised by application for writ of habeas corpus in the trial court where a full evidentiary hearing may be conducted. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La. 1982); State v. Prestridge, 399 So.2d 564 (La.1981). Only where the record discloses sufficient evidence to decide the issue of ineffective assistance when raised by assignment of error should the issue be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983)."

In Strickland v. Washington, supra, 104 S.Ct. at 2062 thru 2065, the U.S. Supreme Court explained:

"In assessing attorney performance, all the Federal Courts of Appeals and all but a few state courts have now adopted the "reasonably effective assistance" standard in one formulation or another. See Trapnell v. United States, 725 F.2d 149, 151-152 (CA2 1983); Brief for United States in United States v. Cronic, O.T. 1983, No. 82-660, pp. 3a-6a; Sarno, Modern Status of Rules and Standards in State Courts as to Adequacy of Defense Counsel's Representation of Criminal Client, 2 A.L.R. 4th 99-157, §§ 7-10 (1980). Yet this Court has not had occasion squarely to decide whether that is the proper standard. With respect to the prejudice that a defendant must show from deficient attorney performance, the lower courts have adopted tests that purport to differ in more than formulation.
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