State v. Upchurch

510 So. 2d 112, 1987 La. App. LEXIS 9793
CourtLouisiana Court of Appeal
DecidedJune 26, 1987
DocketNo. CR87-28
StatusPublished
Cited by3 cases

This text of 510 So. 2d 112 (State v. Upchurch) 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. Upchurch, 510 So. 2d 112, 1987 La. App. LEXIS 9793 (La. Ct. App. 1987).

Opinion

FORET, Judge.

Defendant, Charles Johnny Upchurch, was indicted on the charge of manufacturing and possessing with intent to distribute methamphetamine, in violation of La.R.S. 40:967(A)1, and was convicted of one count of possession of methamphetamine with intent to distribute and one count of manufacture of methamphetamine. Defendant was sentenced to two concurrent eight-year sentences, at hard labor. Defendant now appeals his convictions and sentences based on the following assignments of error:

1. Trial court erred in failing to grant the Motion to Suppress the evidence in the case.
2. Trial court erred by allowing testimony by the state’s witness, Dale Folds, as to statements allegedly given by the defendant when the state did not lay a proper foundation for the same.
3. Trial court erred by allowing testimony of Deputy Randall Johnson as to evidence of other crimes which were not relevant to this matter, nor had there been proper notice given to the defense as to their intent to offer such evidence as required by R.S. 15:445 or R.S. 15:446, pursuant to Article 720 of the Louisiana Code of Criminal Procedure.
4. Trial court erred by not granting a mistrial after allowing evidence of other crimes to be introduced at the trial of this matter, when moved for by the defendant.
5. Trial court erred by failing to allow a judgment of acquittal because the law and the evidence were not sufficient to sustain a verdict of guilty.
6. Trial court erred by sentencing defendant to an excessive sentence which constitute cruel and unusual punishment.

FACTS

Approximately four months prior to December 18, 1984, Randall Johnson, an undercover narcotics detective with the Calca-sieu Parish Sheriff’s Office, conducted a surveillance of defendant Upchurch’s trailer. On November 18, 1984, in connection with Randall Johnson, deputies Dale Folds and Grant Granger, issued to a confidential informant a quantity of money with which [115]*115to purchase methamphetamine from Up-church. After leaving the residence, the confidential informant told the deputies that Upchurch advised him that they would be doing business with him, referring to narcotic trafficking. The informant also informed the deputies that he detected an odor inside defendant's residence which was characteristic of methamphetamine. Deputy Johnson, who had been in the defendant’s residence prior to the confidential informant’s visit, had also detected the odor of chemicals characteristic of methamphetamine and experienced a burning sensation of the eyes, which is characteristic of the effects of phenylacetic acid, which is a chemical used to produce methamphetamine. In addition to this operation, Deputy Johnson had been working an undercover operation involving Marilyn Johnson, who had informed Deputy Johnson that she could acquire large quantities of methamphetamine, cocaine, or marijuana at the defendant’s residence. She also told Deputy Johnson that methamphetamine was being manufactured by defendant at his residence and that he had been manufacturing it for years. Deputy Johnson met with Marilyn Johnson in the early afternoon of Wednesday, December 19,1984, and issued her a sum of money with which to purchase a quantity of methamphetamine. Marilyn Johnson was seen by narcotics detective, Deputy Granger, leaving the meeting with Deputy Johnson and going directly to the residence of Upchurch. Marilyn Johnson left that location and went immediately to meet with Randall Johnson and delivered a quantity of methamphetamine to him. Approximately four weeks prior to this, affi-ants Folds and Granger had received information from State Police Sergeant Jerome Sigur that an agent of the Drug Enforcement Agency had informed him that Charles Johnny Upchurch had picked up the chemicals necessary for the manufacture of methamphetamine in Houston, Texas, and the quantity of chemicals he picked up could be used to manufacture approximately 15 pounds of methamphetamine. Pursuant to these events, the district judge issued a search warrant for the residence of Upchurch at Route 15, Box 1722, Miller Street, Lake Charles, Louisiana. A variety of controlled dangerous substances, as well as several items of alleged “drug paraphernalia” were confiscated. Defendant made certain inculpatory statements at the time of the search.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant argues that the trial court erred in failing to grant his motion to suppress evidence seized because the officers who obtained the search warrant did not have any personal knowledge of any evidence developed at the scene. Defendant argues that no probable cause existed because the affiants were relying on the untested testimony of one narcotics violator, Marilyn Johnson.

La.C.Cr.P. art. 162 states that a search warrant shall issue only on probable cause. Probable cause to obtain a search warrant exists where the facts and circumstances within an affiant’s personal knowledge, and of which he has reasonable trustworthy information, are sufficient to form a reasonable belief that the offense has been committed and evidence may be found at the place to be searched. State v. Lewis, 442 So.2d 1159 (La.App. 3 Cir.1983), writ den., 444 So.2d 1214 (La.1984). The judicial officer must have enough information to support his individual judgment that probable cause exists. State v. Hughes, 433 So.2d 88 (La.1983).

In this case the affiants knew from a trustworthy source that the defendant had purchased a large quantity of chemicals from a Houston manufacturer. The affiants knew that a fellow officer had been in defendant’s home and smelled chemicals which the fellow officer knew were used to manufacture methamphetamine. Affiant, Deputy Granger, personally surveilled Marilyn Johnson during her methamphetamine purchase from defendant. Both affiants had reasonably trustworthy information (Granger from his participation and Granger and Folds from a fellow officer, Randall Johnson) that Marilyn Johnson had purchased methamphetamine from the defendant and that more [116]*116methamphetamine was present at defendant’s residence.

A magistrate’s determination of whether probable cause for issuance of a search warrant exists is entitled to great deference. We cannot say that the judge abused his discretion in finding that there was probable cause to issue this search warrant.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, defendant contends that the trial court erred by allowing into evidence the testimony of Deputy Dale Folds as to inculpatory statements made by defendant. Specifically, the defense contends that these statements were not free and voluntary. The defense argues that Deputy Folds’ testimony at a preliminary hearing for this defendant on December 19, 1984, and his testimony at the instant trial were inconsistent, and that the prosecution had failed to show that these statements were post Miranda, and were made free and voluntary. In support of this contention, the defense attorney sought to quote a section from the preliminary examination contending that Deputy Folds had not read defendant his rights. The judge read the transcript, however, and found a section which said, “After the arrest, was Mr. Upchurch questioned after being advised of his Miranda rights?” The answer was, “Mr. Upchurch spoke to us voluntarily.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Evins
626 So. 2d 480 (Louisiana Court of Appeal, 1993)
State v. Bordelon
538 So. 2d 1087 (Louisiana Court of Appeal, 1989)
State v. Broussard
527 So. 2d 1216 (Louisiana Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
510 So. 2d 112, 1987 La. App. LEXIS 9793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-upchurch-lactapp-1987.