State v. Porter

547 So. 2d 736, 1989 WL 73612
CourtLouisiana Court of Appeal
DecidedJune 28, 1989
DocketCR88-1289
StatusPublished
Cited by7 cases

This text of 547 So. 2d 736 (State v. Porter) 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. Porter, 547 So. 2d 736, 1989 WL 73612 (La. Ct. App. 1989).

Opinion

547 So.2d 736 (1989)

STATE of Louisiana, Appellee,
v.
Eichelle PORTER, Appellant.

No. CR88-1289.

Court of Appeal of Louisiana, Third Circuit.

June 28, 1989.

*738 John K. "Mike" Anderson, Leesville, for defendant-appellant.

Edwin L. Cabra, First Asst. Dist. Atty., Leesville, for plaintiff-appellee.

Before GUIDRY, FORET and DOUCET, JJ.

FORET, Judge.

Defendant, Eichelle Porter, was convicted of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967A(1), and was sentenced to serve seven years at hard labor and pay a fine of $5,000, plus court costs. The second charge with which defendant had been charged, possession of marijuana, was dismissed by the State prior to trial. Defendant appeals the conviction and sentence based on seven assignments of error. Assignment of error # 3 has not been briefed on appeal and is therefore considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). We reverse the conviction, set aside the sentence, and remand with instructions.

FACTS

On November 2, 1987, the City/Parish Task Force of Vernon Parish was contacted by two confidential informants. The first of these two informants stated that he had seen defendant purchase cocaine for resale "in the Crossing area" of Leesville. The second one advised that he had observed the defendant selling cocaine out of his vehicle in the parking lot of the Big Casino Lounge. On November 4, 1987, one of the aforementioned confidential informants contacted the task force once again. This time, he advised officers that the defendant had just come by selling cocaine out of his car and would be selling drugs later that afternoon in the Big Casino parking lot. He described the vehicle defendant was driving and supplied the license number on it. In addition, on this same date, the task force was advised by the Fort Polk Drug Team that they had information that this defendant, who was in the military, had been selling cocaine out of a room at the Country Inn Motel on Friday, October 30, 1987, and that he had also been caught with cocaine inside his room locker at Fort Polk.

Based on the information received, Deputy Prentiss Dixon of the Vernon Parish Sheriff's Department executed an affidavit seeking a search warrant for search of the defendant, his vehicle, and any other persons present. Considering Deputy Dixon's affidavit, Judge Chris Smith of the Leesville City Court signed the order for issuance of a search warrant on November 4, 1987.

Subsequently, Deputy Dixon, who was going away on vacation, gave the search warrant to Officer Randall Strother of the Leesville Police Department. On November 7, 1987, Officer Strother received a tip that this defendant and a black female were in "the Crossing area" and that they were staying in Room 207 of the Continental *739 Motor Lodge in Leesville. Upon receiving this tip, Officer Strother, assisted by Officer Richard Knight, proceeded to the motel in an unmarked vehicle in order to attempt to execute the search warrant. Arriving at the motel, the officers observed the vehicle described in the warrant parked at the motel, kept it under surveillance for about fifteen minutes, and then saw the defendant along with a black female exit room 207 and get into a 1984 Nissan automobile. The defendant drove and the female sat on the passenger side. The officers followed the vehicle a short distance and then stopped it.

Upon stopping the vehicle, the officers proceeded to execute the search warrant. During the search, no items of contraband were found on either the defendant's or his female passenger's person. However, Officer Strother did recover a green army-type medical kit from the rear seat of the vehicle containing the following items:

(a) several cotton swabs;
(b) a glass bottle containing what appeared to be antiseptic;
(c) cigarette rolling papers;
(d) a homemade paraphernalia-type cocaine rock smoking pipe;
(e) two razor blades; and
(f) two plastic pouches.

Moreover, the officers discovered a cassette tape case labeled "Wendy" containing three individual plastic pouches containing a substance which was later determined to be cocaine.

Following this initial search, the officers sought and obtained from the defendant a voluntary permission to search, authorizing the search of Room 207 at the Continental Motor Lodge. In connection with the room search, the following items were recovered and seized from the top left dresser drawer:

(a) two lab test tubes containing what appeared to be cocaine residue;

(b) some brass scrubbing pads;
(c) several cotton swabs;
(d) a pack of razor blades; and
(e) medicine bottle.

The substance in the test tube also tested to be cocaine. Defendant and his female passenger were arrested and jointly charged by a bill of information with possession of cocaine with intent to distribute in violation of La.R.S. 40:967 A(1). A second charge, possession of marijuana, was dismissed by the State prior to trial.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant contends that the trial court erred in denying the motion to sever. More specifically, defendant argues that the refusal of the trial court to sever the cases required him to defend himself against accusations and statements made by Wendy Rhodes which were directly antagonistic to his defense. He further contends that this situation could have been avoided by ordering separate trials. However, although defendant contends that he was forced to defend himself at trial, it is interesting to note that he elected not to testify at trial. The pertinent provision of our Code of Criminal Procedure is Article 704, which provides as follows:

"Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance."

In interpreting this article, the courts have determined that the facts of each case must determine whether justice requires a severance. State v. Toussaint, 502 So.2d 599 (La.App. 3 Cir.1987). The jointly charged defendants are not entitled to severance as a matter of right. Rather, the decision of whether to grant or deny a severance rests in the trial judge's sound discretion. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Brown, 527 So.2d 12 (La.App. 3 Cir.1988). Furthermore, at the hearing on the motion to sever, the defendant must bear the burden of proving that justice requires a severance. State v. Williams, 416 So.2d 914 (La. 1982).

*740 Turning now to the facts of the instant case, a review of the record reveals that the trial court did not err in denying the motion to sever. The co-defendant, Wendy Rhodes, testified at trial. She denied having any knowledge of the existence of cocaine in the vehicle and denied any involvement whatsoever in any criminal activity. However, she did not, in any way, implicate her co-defendant in any criminal activity. As such, defendant was not forced to take the stand in order to defend himself and, in fact, as noted earlier, he chose not to testify at trial.

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Bluebook (online)
547 So. 2d 736, 1989 WL 73612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-porter-lactapp-1989.