State v. Prater

762 So. 2d 82, 2000 WL 722196
CourtLouisiana Court of Appeal
DecidedApril 26, 2000
Docket99-KA-0900
StatusPublished
Cited by5 cases

This text of 762 So. 2d 82 (State v. Prater) 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. Prater, 762 So. 2d 82, 2000 WL 722196 (La. Ct. App. 2000).

Opinion

762 So.2d 82 (2000)

STATE of Louisiana
v.
Walter PRATER.

No. 99-KA-0900.

Court of Appeal of Louisiana, Fourth Circuit.

April 26, 2000.

*84 Harry F. Connick, District Attorney, Cate L. Bartholomew, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.

Menette W. Burns, Louisiana Appellate Project, Covington, LA, Counsel for Defendant/Appellant.

(Court composed of Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU, and Judge DENNIS R. BAGNERIS, Sr.)

BAGNERIS, Judge.

STATEMENT OF CASE

On October 1, 1998, a bill of information was filed charging the defendant with violating La. R.S. 40:967 relative to possession of crack cocaine. The defendant was arraigned on October 7, 1998 and pled not guilty. Following a motion hearing on October 19, 1998, the court found probable cause for the defendant's arrest and denied the defendant's motion to suppress the evidence. On November 9, 1998, a six-member jury found the defendant guilty as charged. On December 23, 1998, the defendant was sentenced to serve three years in the custody of the Department of Corrections. The defendant's motion for reconsideration of the sentence was denied. His motion for appeal was granted. That same day the State filed a multiple bill charging the defendant with being a second felony offender. The defendant admitted his identity, and the State submitted copies of a bill of information, a plea of guilty form, and a minute entry to prove that the defendant had previously pled guilty to the charge of possession of cocaine *85 in Jefferson Parish. The trial court found the defendant to be a second felony offender, vacated the original sentence, and sentenced the defendant under La. R.S. 15:529.1 to serve three years in the Department of Corrections, with credit for time served. The court ordered that the newly imposed sentence run concurrent to any other sentence the defendant is presently serving. The appeal record was filed in this court on April 13, 1999. The defendant's brief was filed on July 13, 1999, and the State's brief was filed on August 2, 1999.

STATEMENT OF FACT

Officer Keith Joseph testified that on September 25, 1998, he received a call around 1:30 a.m. from the dispatcher advising of a possible suspect with a weapon selling cocaine in the area near the 1400 block of Eliza. The suspect was described as a heavy-set male wearing a white T-shirt and jean pants.

En route to the location given by the dispatcher the officer saw the defendant and four or five young men standing near a vehicle in the parking lot of an apartment complex located in the 400 block of Leboeuf Street. The defendant was standing in front of the vehicle towards the left passenger fender, and the other men were sitting on the vehicle on the driver's side. Because the defendant was the only person in the area who fit the description given by the dispatcher, Officer Joseph decided to detain him for questioning. As Officer Joseph pulled up and exited his vehicle, the other men ran, but the defendant did not flee. Officer Joseph observed the defendant discard a clear plastic container from his right hand. Officer Joseph retrieved the container and found that it contained twenty-one rocks of crack cocaine. Officer Joseph arrested the defendant, patted him down and recovered seventy-four dollars from his left front pocket.

The parties stipulated that Officer Harry O'Neal, a drug analyst in the Crime Lab of the New Orleans Police Department, was an expert in the field of forensic chemistry and specifically with the testing and identification of cocaine. Officer O'Neal testified that he tested four of the rocks found in the discarded container and all four tested positive for cocaine. Based on the tests performed on the four randomly selected rocks and the similar appearances of the rocks, he concluded that all twenty-one rocks were positive for cocaine.

The defendant testified that he lived at 325 Leboeuf Street in Algiers. The defendant testified that he pled guilty to possession of cocaine during the summer of 1998 in Jefferson Parish, and he had previously been convicted of assault. Later, on cross-examination, he admitted that when he pled guilty to possession of cocaine in Jefferson Parish, he also pled guilty to possession of hydrocodone.

The defendant denied being in possession of the twenty-one rocks of cocaine contained in the canister. He insisted that if he had possessed the canister, he would have run as the other young men had done.

The defendant testified that earlier that night he had been at 1422 Eliza Street playing cards at a friend's house. He left his friend's house around 1:20 a.m. and headed for home. He was traveling on foot and took a shortcut through the back of the apartments. As he walked through the lot, he saw this guy named Marcel run inside the apartments. Marcel was heavy set and was wearing a white T-shirt and blue jeans; he fit the description given by the dispatcher of the person selling drugs in the area. The defendant later learned from neighbors that Marcel was the person who was actually selling cocaine in the neighborhood that night, and Marcel was the person being referred to by the neighbor who called the police that night.

The defendant, cognizant of the fact that +he was on probation, tried to leave the area, but the police pulled up quickly and turned the lights on before the defendant *86 could leave the area. The defendant stopped when he saw the police officer's lights. The defendant insisted that he did not have any drugs on his person, and he did not throw anything down.

The defendant testified that Officer Joseph exited his vehicle and called all four or five young men to the car. After searching the defendant, Officer Joseph took the defendant's cellular phone and beeper and then told the defendant that he must have been out there selling drugs. The defendant further testified that the seventy-four dollars, which the Officer found in his pocket, belonged to him. Although the defendant denied selling drugs, Officer Joseph handcuffed the defendant and called his name in on his radio. Afterwards, the officer told the defendant's girl-friend not to worry because the defendant was not wanted. Yet, the officer kept the defendant handcuffed in the back seat of his car and drove to a nearby Spur gas station. They remained at the gas station for fifteen to twenty minutes. While at the station, Officer Joseph spoke to officers in two other police cars that were on the side of his car. Officer Joseph asked one of the other officers whether he thought Officer Joseph should book the defendant or let him go. Officer Joseph commented that he had done better than Martinez that day.

The defendant admitted that there were people outside in the area of his arrest that night who could come to court and testify and corroborate his story; however, he stated that these people were afraid to testify.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error the defendant argues that the trial court committed reversible error by denying his requests for a mistrial.

The defendant complains of four specific incidents that occurred during the course of the trial. The first instance complained of by the defendant occurred during the opening statement when the prosecutor stated:

Officer Keith Joseph is going to take the stand.

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Cite This Page — Counsel Stack

Bluebook (online)
762 So. 2d 82, 2000 WL 722196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-prater-lactapp-2000.