State v. White

508 So. 2d 982
Louisiana Court of Appeal·Decided June 9, 1987·No. CR 86-659·Published·Cited by 14 cases

Opinion

508 So.2d 982 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
James Gregory WHITE, Defendant-Appellant.

No. CR 86-659.

Court of Appeal of Louisiana, Third Circuit.

June 9, 1987.

*983 John Lavern, Public Defender's Office, Lake Charles, for defendant-appellant.

Richard Ieyoub, Dist. Atty., Saundra Issac, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before DOMENGEAUX, DOUCET, and KNOLL, JJ.

KNOLL, Judge.

As the result of an undercover operation in Calcasieu Parish defendant was indicted for distribution of marijuana, a violation of LSA-R.S. 40:966(A)(1), and convicted by a jury of that offense. Following trial and conviction the State filed an habitual offender bill against defendant as a second felony offender pursuant to LSA-R.S. 15:529.1 and initiated proceedings to revoke defendant's probation. Accordingly, after a probation revocation hearing, the trial court ordered defendant to serve the original two year sentence imposed for his earlier burglary conviction and, consecutive to that sentence, further ordered defendant to serve three and one-half years as a second habitual offender for the present offense. Defendant contends on appeal that the trial *984 court erred: (1) in that the verdict was not supported by the law and the evidence; (2) in sustaining the State's objection to defense questions concerning the identity of a confidential informer; (3) in permitting a violation of the rule of sequestration; (4) in overruling a defense objection to introduction of physical evidence when the State had not presented a complete chain of custody; (5) in sustaining the State's objection to a question by defense counsel concerning prior investigations; and, (6) in sustaining the State's objection to a question by defense counsel concerning the location of the Office of the Special Services Department of the Lake Charles City Police. We affirm.

FACTS

On July 13, 1984, Corporal Richard Duhon and Detective Marvin Collins, Special Services Division, Lake Charles Police Department, assisted the Sulphur Police Department in conducting an undercover narcotics operation in Vinton. Corporal Duhon had received information from a confidential informant that defendant was selling marijuana. Upon arriving in Vinton, Corporal Duhon met the informer and they proceeded to locate defendant. Detective Collins acted as a surveillance officer and followed in another vehicle. After locating defendant, Corporal Duhon asked defendant if he knew where he could purchase a bag of marijuana. Defendant responded that he had $25 and $50 bags but they would have to take him to get it. Defendant entered Corporal Duhon's car and they proceeded to the parking lot of Augustine's Family Market where Duhon gave defendant $50 for the marijuana. Defendant got out and made a telephone call. Shortly thereafter a silver Mercury pulled up near the store and picked up defendant. Although Corporal Duhon did not see the Mercury come back, defendant returned in a few minutes and gave Corporal Duhon two bags of what was later analyzed as marijuana by the Southwest Louisiana Crime Laboratory. Corporal Duhon brought the informer and defendant back to their original locations, and then proceeded to Lake Charles where the evidence purchased from defendant was documented and stored.

SUFFICIENCY OF EVIDENCE

Defendant argues that the evidence was insufficient to support his conviction and that the State failed to prove he had guilty knowledge of the bags' contents when he transferred the marijuana to Corporal Duhon.

When the issue of sufficiency of the evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

LSA-R.S. 40:966(A)(1) provides as follows:

"[It] shall be unlawful for any person knowingly or intentionally: (1) to produce, manufacture, distribute or dispense or posses with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I."

Marijuana is a Schedule I controlled dangerous substance.

Guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance. State v. Goiner, 410 So.2d 1085 (La.1982); State v. 1971 Green GMC Van, 354 So.2d 479 (La. 1977); State v. Humphreys, 319 So.2d 344 (La.1975). Whether an accused knows the substance is a narcotic drug may be proved by direct or circumstantial evidence. State v. Perique, 340 So.2d 1369 (La.1976); State v. Humphreys, supra. The fact finder may draw reasonable inferences to support conclusions as to guilty knowledge based upon evidence presented at trial. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Tasker, 448 So.2d 1311 (La.App. 1 Cir. 1984), writ denied, 450 So.2d 644 (La.1984). The credibility of witnesses is a matter to be weighed by the trier of fact. State v. Klar, 400 So.2d 610 (La.1981). An appellate *985 court will not evaluate the credibility of witnesses and overturn the trial court's factual determinations absent manifest error. LSA-La. Const. Art. V, Section 5 (C); State v. Richardson, 425 So.2d 1228 (La. 1983).

Furthermore, LSA-R.S. 15:446 provides that when knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent.

Corporal Duhon testified that defendant said he had $25 and $50 bags of marijuana for sale. Corporal Duhon gave defendant $50 for a half ounce of marijuana, and defendant returned to Duhon's car with two bags of marijuana after meeting someone at Augustine's Family Market. When Corporal Duhon requested that defendant give the marijuana to him if it all belonged to him, defendant said it was his and physically handed the marijuana to him. Corporal Duhon then dropped defendant off at the point that defendant was first contacted and took his confidential informant back before returning to Lake Charles.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact, drawing reasonable inferences from defendant's conduct and declaration, could find that he knew he possessed and delivered an illegal drug. Therefore this assignment lacks merit.

CONFIDENTIAL INFORMANT

Defendant contends the trial court erred when it failed to require the State's witness, Corporal Duhon, to disclose the identity of a confidential informer. Defendant argues that when the prosecution's case shows that the informer participated in the crime the informer's identity should be disclosed to defendant for purposes of cross-examination or the prosecution dismissed. Defendant further contends that his constitutional right to confront and cross-examine the informer was violated.

In State v. Dabon, 337 So.2d 502 (La.1976), the court stated:

"The informer privilege is based on the need of assuring a free disclosure of information to a governmental source through protecting against unnecessary disclosure, and upon the asserted governmental need of using such sources to obtain information as to covert types of criminal activities. It is generally recognized in Louisiana, a

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