94-603 La.App. 3 Cir. 11/2/94, State v. Fisher

• Decision Date: 02 November 1994
• Citation: 649 So.2d 604
• Parties: 94-603 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 604

649 So.2d 604

94-603 La.App. 3 Cir. 11/2/94

STATE of Louisiana v. Lawrence FISHER.

No. Cr94-603.

Court of Appeal of Louisiana Third Circuit.

Nov. 2, 1994.

Writ Denied April 7, 1995.

Todd Samuels Clemons, Paul Peter Reggie, Lake Charles, for State of Louisiana.

Glen D. Vamvoras, John Michael Crochet, Lake Charles, for Lawrence Fisher.

Before GUIDRY, C.J., and KNOLL and WOODARD, JJ.

[94-603 La.App. 3 Cir. 1] GUIDRY, Chief Judge.

Defendant, Lawrence Fisher, was charged by grand jury indictment with possession of over four hundred grams of cocaine, a violation of La.R.S. 40:967(C) and (F)(1)(c), and possession of marijuana with intent to distribute, a violation of La.R.S. 40:966(A)(1). On March 2, 1992, defendant appeared with counsel, waived reading of the bill of indictment, and entered a plea of not guilty on both counts. Defendant filed a Motion to Suppress Confessions, Identification and Evidence on April 6, 1992. A hearing on the issues presented therein was held on August 12, 1992, whereupon the trial court denied defendant's motion. Trial by jury began on October 20, 1992. On [94-603 La.App. 3 Cir. 2] October 21, 1992, the jury returned a unanimous verdict of guilty as to each count. In regard to the possession of cocaine charge, the defendant was sentenced on November 19, 1993 to serve 20 years at hard labor, with 15 years to be served without benefit of probation, parole or suspension of sentence. Defendant was also ordered to pay a fine of $250,000. On the possession of marijuana with intent to distribute charge, defendant was sentenced to serve 20 years at hard labor, to run concurrent to the other sentence imposed, plus pay a fine of $10,000. Defendant filed a Motion to Reconsider Sentence on December 17, 1993, which motion was denied on March 4, 1994.

The defendant appeals his conviction and sentence assigning six alleged errors:

1) Denying the motion to suppress.

2) Allowing impeachment of a defense witness by evidence of juvenile adjudications.

3) Failing to allow the defense to rehabilitate a defense witness with a prior consistent statement after impeachment by the prosecution.

4) Imposing a cruel, unusual and excessive sentence.

5) Failing to adequately articulate the reasons and the factual basis for sentence.

6) Misapplying the sentencing guidelines by counting invalid guilty pleas as prior convictions to determine the criminal history score.

FACTS

On February 19, 1991, at approximately 3:00 a.m., Louisiana State Trooper Tim LaFleur stopped a vehicle on Interstate 10 between Sulphur and Lake Charles after observing the vehicle weaving from the center dividing line to the median shoulder. Trooper LaFleur also observed that the vehicle was traveling 42 mph in a 45 mph construction zone. The driver stopped his [94-603 La.App. 3 Cir. 3] vehicle in the inside travel lane instead of the outside shoulder. Trooper LaFleur had the driver move the vehicle to a safer location on the outside shoulder.

When asked for his driver's license, the driver of the vehicle told Trooper LaFleur that he lost his wallet and did not have his license on him. The driver told Trooper LaFleur that his name was Terrance Johnson. Trooper LaFleur testified that the driver appeared very nervous and was shaking. Trooper LaFleur then asked the two passengers for identification. The front passenger stated that he did not possess any identification. The passenger in the back seat had a Texas identification card, identifying him as Tomy Burgess.

When questioned individually, each person gave a different account of their travels. The defendant driver said that they were going to see a sick aunt, the front seat passenger said that they were going to see a sick cousin, and Burgess did not know where the three were going. Trooper LaFleur called for backup and Trooper James Jacobsen arrived shortly thereafter. Trooper LaFleur then informed each individual of their rights. The driver of the vehicle agreed to let Trooper LaFleur search the vehicle. ¹ Trooper LaFleur located part of a marijuana cigarette in the ashtray and some paraphernalia during the search. He opened the hatchback and discovered a black briefcase under a pile of loose clothing. All three occupants stated that they did not own the briefcase and had never seen it before.

Sgt. Larry Schell arrived at the scene. After confirming that the three subjects consented to the search, he opened the briefcase with a knife. [94-603 La.App. 3 Cir. 4] Inside the briefcase was two and one-half pounds of crack cocaine and one-half pound of marijuana. All three occupants were placed under arrest. The driver of the vehicle was later identified as the defendant, Lawrence Fisher. The front passenger was identified as Richard Williams.

ERRORS PATENT

La.C.Cr.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

In accordance with this article, we reviewed the record for errors patent on the face of the record. There are no such errors.

ASSIGNMENT OF ERROR NO. 1

Fisher first contends that the trial court erred in denying his motion to suppress. He urges several reasons in support of his contention, the most serious of which concerns the reasonableness of the search.

Reason for Stop

First, defendant contends there was no legal basis for the stop of the vehicle. In other words, the stop was "pretextual" in nature according to Fisher. Therefore, the consent to search given by the occupants was not reasonable. Defendant argues that the weaving of the vehicle did not violate La.R.S. 32:79 as long as the vehicle drove "as nearly as practicable entirely within a single lane". Defendant contends that the automobile did not cross any lines but only touched the shoulder line. Additionally, Fisher urges that traveling 42 mph does not constitute the offense of "impeding traffic" under [94-603 La.App. 3 Cir. 5] La.R.S. 32:71 unless committed in the inner lane of a multi-lane highway.

The State contends the defendant should be precluded from raising this basis for error on appeal as the defendant did not contemporaneously object at the motion hearing to Trooper LaFleur's testimony that the automobile was stopped for improper lane usage or impeding traffic. The purpose of this contemporaneous objection rule is two-fold: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. This gives the court a chance to correct the alleged error before it infects the entire proceeding. La.C.Cr.P. art. 841; State v. Potter, 591 So.2d 1166 (La.1991). This rule has no application to the trooper's testimony at the hearing. He was asked why the stop was made and, in response, gave his reasons for stopping the vehicle. It would have served no purpose at that point for defense counsel to object to the facts as stated by Trooper LaFleur. No basis for an objection to the trooper's testimony existed. Trooper LaFleur's testimony was thereafter subject to cross-examination by defense counsel. Defendant sufficiently preserved this argument for review on appeal by objecting generally after the trial court denied the motion to suppress. We, therefore, examine the merits of Fisher's contention that the initial stop was legally invalid or pretextual.

An individual cannot be stopped in his automobile by a police officer, without a warrant, unless the officer had a reasonable suspicion that the individual has committed, or is about to commit, a criminal offense, including the violation of a traffic regulation. Delaware v. Prouse, 440 U.S. 648, 99 [94-603 La.App. 3 Cir. 6] S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Brew, 593 So.2d 447 (La.App.2d Cir.1992), citing State v. Cohen, 549 So.2d 884 (La.App.2d Cir.1989), writ denied, 559 So.2d 135 (La.1990). Trooper LaFleur testified that he observed Fisher's vehicle weaving from the median shoulder to the center dividing line of the eastbound interstate. He also ascertained that the car was traveling approximately 42 mph, albeit in a 45 mph highway construction zone. Obviously, the vehicle was not actually "impeding traffic", defined in La.R.S. 32:71(B)(2) as "... proceeding on a multilane highway at a speed slower than ten miles per hour less than the posted maximum speed limit". However, Trooper LaFleur could reasonably have considered the weaving vehicle to be in violation of La.R.S. 32:79, which provides, in pertinent part:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.

(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. (Emphasis ours)

By ruling against defendant's motion to suppress, the trial judge necessarily must have considered the initial stop to be legally valid, i.e., that Trooper LaFleur had a reasonable suspicion that Fisher was violating a traffic regulation. In so doing, he chose to give credence to and believe the trooper's testimony. Such a credibility determination is within the trial court's sound discretion. It is not to be disturbed on appeal absent a showing of clear abuse of discretion. State v. Robertson, 421 So.2d 843 (La.1982). By believing Trooper LaFleur's testimony that Fisher was committing a traffic violation, the trial court did not abuse its great discretion.

[94-603 La.App. 3 Cir. 7] Reasonableness of Vehicle Search

The defendant also argues that the...