State v. Roberson

454 So. 2d 343
Louisiana Court of Appeal·Decided July 31, 1984·No. KA-1586·Published·Cited by 9 cases

Opinion

454 So.2d 343 (1984)

STATE of Louisiana
v.
Clarence ROBERSON.

No. KA-1586.

Court of Appeal of Louisiana, Fourth Circuit.

July 31, 1984.
Writ Denied October 12, 1984.

*345 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.

Anthony L. Glorioso, New Orleans, for appellant.

Before GULOTTA, BARRY and CIACCIO, JJ.

GULOTTA, Judge.

On appeal of his conviction and sentence as a second offender for possession of phencyclidine, a violation of LSA-R.S. 40:966(C), defendant Clarence Roberson requests this court to review the record for errors patent, and additionally urges ten assignments of error. We affirm.

On September 30, 1982, on execution of a search warrant for the residence and garage at 7341 Poitevant Street in New Orleans, police officers confiscated a large quantity of phencyclidine, lactose milk sugar, and a set of scales. Roberson, his wife, and another adult male were arrested on the premises. At the time of his arrest, *346 Roberson was on probation for prior illegal possession of this drug.

Charged with possession with intent to distribute phencyclidine in violation of LSA-R.S. 40:966(A)(1), Roberson was found guilty by a twelve member jury of simple possession. The trial judge sentenced him to serve a maximum twenty year sentence as a multiple offender.

ERRORS PATENT

Having examined the documents in the record, we find no errors patent. We now address defendant's specific assignments of error, including the sufficiency of the evidence to support the conviction.

ASSIGNMENT OF ERROR 1

Defendant first contends the trial judge erred in denying his motion to suppress the evidence seized for lack of probable cause to issue the search warrant of 7341 Poitevant Street.

The affidavit in support of the search warrant states that the affiant-police officers had been provided reliable information from two informants about burglaries and stolen property in the past, as well as information leading to arrests and convictions in drug cases.

According to the affidavit, one of these informants told the officers that he had seen five men manufacturing PCP in the garage of "Buddy" Roberson's house of Poitevant Street, that he could smell the PCP in Roberson's house, garage and the surrounding area, and that he knew "Buddy" manufactured PCP in the garage for distribution and kept some of it in the refrigerator and a kitchen cabinet. The second informant told one officer that he knew "Buddy" was heavily dealing in PCP, presently had a large quantity of it, and was watching for police. The affiant officers further averred that a computer check had revealed that Clarence and Cassandra Roberson lived at 7341 Poitevant Street, and had previously been arrested at least twice for narcotic violations. The narcotics division of the police department had also informed the officers that surveillance of the house was difficult because Roberson used binoculars to watch for police.

When probable cause for issuance of a search warrant is based upon a tip received from a confidential informant, the "totality of circumstances", including the "veracity" and "basis of knowledge" of the informants supplying hearsay information, must be sufficient to allow the magistrate to make a practical, common sense decision whether there is a fair probability that contraband will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Manso and Warden, 449 So.2d 480 (La. 1984); State v. Lingle, 436 So.2d 456 (La. 1983).

Considering the information supplied to the magistrate, we cannot say he erred in finding probable cause for issuance of the search warrant. The informants' history of prior information to the police officers in other cases established their "veracity", and their personal observation of drugs at the premises sufficiently showed their "basis of knowledge" in the instant case. Based on the information set forth in the affidavit, and the police officers' corroborative computer check, the magistrate had a substantial basis for concluding that there was a fair probability that contraband would be found at the named premises. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR 2

Defendant next argues the trial court erred in failing to excuse a juror for cause because of her bias in favor of police officers.

During voir dire, and after the defendant had exhausted his peremptory challenges, a potential juror testified that her son was an explorer scout who had worked with the police department. When asked whether this relationship would make her more likely to believe a police officer than the defendant or any other witness, the juror at first answered that she "hoped not", but *347 later stated: "To be honest, I would probably be more prejudiced to policemen."

After the defense moved to challenge this juror for cause, the prosecutor then asked the juror if she could "... listen to what's presented to you today and not have an ingoing bias on the front end against the State or have an ingoing bias on the front end against the defendant...." The juror responded that she could do so. The defense's challenge for cause was denied.

Although a juror who is biased in favor of the testimony of law enforcement officers over that of defense witnesses is not competent to serve, a trial judge does not err in accepting a juror who demonstrates willingness and ability to decide the case impartially, even though he may have initially voiced an opinion seemingly prejudicial to the defense. State v. Davenport, 445 So.2d 1190 (La.1984); State v. Governor, 331 So.2d 443 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975).

Despite the juror's indication in our case that she would probably be more prejudiced toward policemen, she responded, on further questioning, that she could listen to the evidence presented without having a bias against either the State or the defense. Under these circumstances, we cannot say the court abused its discretion in concluding that the juror had been rehabilitated. State v. Celestine, 443 So.2d 1091 (La. 1983); State v. Benoit, 440 So.2d 129 (La. 1983). Accordingly, we find no error.

ASSIGNMENTS OF ERROR 3, 4, 5, 6, & 7

In these assignments of error, defendant complains of the trial judge's failure to grant a mistrial as the result of various comments by the judge, witnesses, and the prosecutor during trial.

In Assignment of Error 3, defendant argues the trial judge erred in failing to grant a mistrial after erroneously referring to phencyclidine as a "controlled dangerous substance, a narcotic drug" instead of a "suppressant". Although defendant's description of the drug may be technically correct, we cannot say how the trial judge's misnomer deprived defendant of a fair trial or resulted in prejudice. LSA-C.Cr.P. Art. 775. Accordingly, we find no merit to this argument.

Defendant further contends, in Assignment of Error 4, that a mistrial should have been granted when the prosecutor, during his opening statement, told the jury that they would hear testimony from police officers that they had "... received information from two confidential informants that at 7341 Poitevant Street a person was manufacturing Tea, which is the street name for Ange

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