State v. Prudhomme

532 So. 2d 234, 1988 La. App. LEXIS 2019, 1988 WL 103149
Louisiana Court of Appeal·Decided October 5, 1988·No. CR 88-59·Published·Cited by 15 cases

Opinion

532 So.2d 234 (1988)

STATE of Louisiana, Appellee,
v.
Don PRUDHOMME, Appellant.

No. CR 88-59.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1988.

*236 John Brown, Public Defender Office, Lake Charles, for appellant.

Richard Ieyoub, Dist. Atty., Lake Charles, for appellee.

Before GUIDRY, FORET and STOKER, JJ.

FORET, Judge.

Defendant, Don Prudhomme, was found guilty of distribution of cocaine, a violation of La.R.S. 40:967(A) and was sentenced to serve ten years at hard labor. Defendant appeals, raising five assignments of error.[1]

At about 4:00 P.M. on August 5, 1986, a confidential informant called the Calcasieu Parish Sheriff's Office and informed them that he had arranged a narcotics buy. Officer Randy Johnson, working undercover, went to the designated location at Highway 90 and Highway 171, and picked up the defendant. After discussing the terms of a cocaine purchase to be made by Officer Johnson, the defendant and Officer Johnson drove to Opelousas and Enterprise Streets where defendant, Prudhomme, got out of the car and had a conversation with co-defendant, Brett James. James and Prudhomme reentered the car and instructed Officer Johnson to proceed down Enterprise Street and stop under the overpass. He did so and, upon arriving at that location, James took the "buy money" from Officer Johnson, left his "rigs" and his pistol for collateral, and exited the vehicle with Prudhomme to purchase drugs. Both defendants returned shortly, and James had three packages wrapped in cellophane containing a white powdery substance later determined to be cocaine. The defendants instructed Johnson to drive to a location in front of the Rolls Royce Glass House Bar, where they then injected the contents of the smallest of the three packages into their arms. Officer Johnson positively identified Don Prudhomme as the man who organized and participated in the drug purchase. Deputies Robert Stolsteimer and Wayne McGuire conducted surveillance on this transaction and corroborated portions of Officer Johnson's testimony. Defendant, himself, testified that he arranged the transaction but denies any direct involvement therein.

ASSIGNMENT OF ERROR NO. 1—SUFFICIENCY OF THE EVIDENCE

Defendant argues that the jury erred in finding him guilty of distributing cocaine because the State failed to prove defendant's identity as the perpetrator of the crime. Defendant argues that the officer conducting surveillance never positively identified the defendant, Don Prudhomme, as the person involved in the charged drug transaction. Defendant also argues that the "oral confession" given by him to Deputy Donald Delouche, and taken down by Delouche on the bottom of a standard waiver of rights form, is not reliable.

Under the Jackson v. Virginia rule, the question on review is whether any rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found that the essential elements of the charged crime were proven beyond a reasonable doubt. The central question *237 here concerns the identification of the defendant as the perpetrator of the crime. There appears to be no reason to address defendant's challenge to the testimony of the surveillance officers or defendant's "oral confession" because other evidence presented overwhelmingly supports the conclusion that the defendant was the person who perpetrated the crime. To begin with, the undercover police officer, Randy Johnson, positively identified the defendant, Don Prudhomme, as the person involved in this drug transaction. Officer Johnson testified that Prudhomme got into Johnson's vehicle and took him to meet the co-defendant in an attempt to purchase drugs. Officer Johnson testified that Prudhomme and the co-defendant exited Johnson's vehicle and returned a short time later with three packages of suspected drugs. Thereafter, the defendants instructed him to drive to another location, the Rolls Royce Glass House Bar, where the defendants mixed some of the suspected drugs with water and injected the drugs into their arms.

Additionally, defendant, Prudhomme, admitted at trial that he took the confidential informant (who he knew as Billy Bob) and Officer Johnson (who he knew as Davey James) to a person known to him as "Baby James" to see if they could purchase drugs. Defendant stated that he did not get the drugs for Officer Johnson but simply was walking around while "Baby James" got the drugs, but he admits to having used some of the cocaine upon returning to Officer Johnson's vehicle.

Considering the above and foregoing, we find that there is more than adequate evidence from which a rational factfinder, viewing the evidence in the light most favorable to the prosecution, could conclude that the defendant was the person who committed the charged offense, beyond a reasonable doubt, and we therefore find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2: FAILURE OF THE TRIAL COURT TO GRANT MOTION FOR A MISTRIAL.

By this assignment of error, defendant argues that the trial judge erred in denying his request for a mistrial. In response to a question posed by counsel for the co-defendant, Brett James, Officer Wayne McGuire made reference to a photograph (of co-defendant James) that was obtained from "a past criminal history" of James. Prudhomme moved for a mistrial, claiming that Officer McGuire's remark cast him in an unfavorable light as a person associated with criminals. The trial judge denied the motion for mistrial but admonished the jury to disregard any inference that James had committed any other crimes.

We are compelled to note that the photographic identification, where Baby James and Brett James were identified through mug shots as being the same person, was first presented to the jury through the testimony of Deputy Randy Johnson. Deputy Johnson stated that he identified the man who was introduced to him as Baby James, as being Brett James, through mug shots:

"Q. Before they arrested Brett James no one contacted you to discuss proper identification?
A. Yes, sir. I had seen mug shots before that time.
Q. I'm sorry. So you reviewed mug shots to make a determination of who Baby James was? ...
A. No, sir. I was shown a couple of mug shots and said is Brett James one of these and I said yes, that's him and I showed them which one of those mug shots it was." (Transcript, page 132)

No one objected to this being other crimes evidence at that time. Since defense counsel failed to raise a timely contemporaneous objection, he waived the right to contest this issue on appeal. La.C. Cr.P. art. 841. However, even had this issue not been waived, defendant could not prevail. In his brief, defendant now agrees that this fact situation is controlled by La. C.Cr.P. art. 771 because a police officer is not a "court official." Art. 771 is as follows:

"In the following cases, upon the request of the defendant or the state, the *238 court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

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State v. Prudhomme, 532 So. 2d 234, 1988 La. App. LEXIS 2019, 1988 WL 103149 (La. Ct. App. 1988).

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