State v. Thibodeaux

687 So. 2d 477, 96 La.App. 3 Cir. 0471, 1996 La. App. LEXIS 2952, 1996 WL 709483
Louisiana Court of Appeal·Decided December 11, 1996·No. No. 96-471·Published·Cited by 3 cases

Opinion

| iPETERS, Judge.

The defendant, Allison Scott Thibodeaux, was convicted by a jury of possession of a controlled dangerous substance, Schedule II, hydrocodone, in violation of La.R.S. 40:967(C). He was subsequently found to be an habitual offender and sentenced to four years in the custody of the Department of Corrections, with credit for time served. The defendant appeals his conviction, assigning five errors on the part of the trial court.

DISCUSSION OF THE RECORD

On August 6, 1992, the Calcasieu Parish Sheriff’s Office received information that the defendant was smoking marijuana at a Lake Charles residence. On August 7, 1992, officers went to the defendant’s apartment and were invited in by the defendant. The defendant’s wife and stepson were also in the apartment at the time.

The defendant and his wife were advised of their Miranda rights, and the defendant chose to speak with the officers. After initially denying that he smoked ^marijuana, the defendant changed his statement and told the officers that he did smoke marijuana and that he had a personal stash at his apartment. He gave the officers consent to search his apartment. The defendant directed the officers to a dresser drawer where they found a “stash” of illegal drugs, which included a prescription bottle containing marijuana gleanings and one and one-half white tablets. The white tablets later tested positive for hydrocodone. The label on the prescription bottle indicated that the bottle contained Fiorinal, which was dispensed in the defendant’s wife’s name. The defendant advised the officers that the hydrocodone tablets were his property, that they were pain killers, and that he had traded a marijuana cigarette to obtain them. He further acknowledged that he did not have a prescription for the hydrocodone tablets.

ASSIGNMENT OF ERROR NO. 1:

In this assignment, the defendant contends that the trial court erred in refus-[479] mg to admit evidence of the defendant’s prescription medication for pain and his wife’s prescription medication. Specifically, the defendant sought to introduce a copy of his medical records to show that he had suffered an injury and had a prescription for his own pain medication, the inference of such evidence being that the hydrocodone was not the defendant’s since he did not need it. The defendant also sought to introduce a pharmacy’s computer printout to establish that the defendant’s wife had a prescription for hy-drocodone. The trial court refused to admit the medical records or the computer printout into evidence. We find no error in the trial court’s ruling relative to these evidentiary matters.

At the time of trial, La.Code Evid. art. 804(B)(5) provided in part:1

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
| ⅞(5) Records of regularly conducted business activity. In a criminal case, a ... report, record, or data compilation ... made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the ... report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, if the source of information, method, and circumstances of preparation indicate a clear and convincing degree of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule.

The defendant failed to show the unavailability of the declarants concerning his medical records and the pharmacy printout. Thus, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, the defendant asserts that the state was improperly allowed to comment on his right to remain silent. Specifically, the defendant points to the following portion of the state’s rebuttal closing arguments:

The evidence was, he was standing right there when [his wife] got cuffs put on her hand. If he wanted to come to her defense, don’t you think that was the time to do it. [sic] He stood moot [sic]. He just stood there while she got arrested along with him. So, don’t let anybody come in with a snow job two years later and try to convince you that he’s taking the rap for somebody else.

Defense counsel objected to the remarks and moved for a mistrial.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the issue was whether a prosecutor could seek to impeach the defendants’ exculpatory story, told for the first time at trial, by cross-examination as to the failure to tell the story after receiving Miranda warnings at the time of arrest. The Supreme Court held that the use for impeachment purposes of the defendants’ postarrest silence violated due process. The Supreme Court explained that silence in the wake of Miranda warnings may be merely an arrestee’s exercise of his Miranda rights. The Court concluded:

Thus, every postarrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true pthat the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. at 617-18, 96 S.Ct. at 2244-45 (footnote omitted) (citation omitted).

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State v. Thibodeaux, 687 So. 2d 477, 96 La.App. 3 Cir. 0471, 1996 La. App. LEXIS 2952, 1996 WL 709483 (La. Ct. App. 1996).

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