State v. Brown
| Decision Date | 19 November 1985 |
| Docket Number | No. 84,84 |
| Citation | 479 So.2d 464 |
| Parties | STATE of Louisiana v. Carol BROWN. KA 0924. 479 So.2d 464 |
| Court | Court of Appeal of Louisiana — District of US |
Ossie Brown, Dist. Atty. by Mike Nunnery, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
David Price, APD, Baton Rouge, for defendant-appellant.
Before LOTTINGER, COLE and CRAIN, JJ.
Defendant, Carol Lynn Brown, was charged by bill of information with three counts of possession with intent to distribute Schedule II controlled dangerous substances. La.R.S. 40:967(A). The charges included in count one pentazocine (Talwin), in count two methamphetamine and in count four phenmetrazine (Preludin). Defendant was further charged with one count of possession with intent to distribute a Schedule IV controlled dangerous substance, diazepam (Valium). La.R.S. 40:969(A). Defendant pled not guilty and was tried by jury. The jury convicted defendant on all four counts. She was sentenced to serve six years with the Louisiana Department of Corrections, without benefit of parole, probation or suspension of sentence on count one, and to serve six years with the Department of Corrections on counts two, three and four, all to run concurrently. Defendant has appealed her convictions and sentences, alleging twelve assignments of error. Assignments of error numbers 2, 3, 7, 8, 9 and 10 were not briefed by defendant and are, therefore, considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.
At approximately 3:00 to 3:45 p.m., on October 21, 1982, Jay Thompson of the Louisiana State Police and officers of the Baton Rouge City Police and East Baton Rouge Parish Sheriff's Office executed a search warrant for 1914 Tennessee Street in Baton Rouge. When the officers obtained entry to the house, defendant began running to the back of the house. Thompson and Sergeants Schultz and Blackwell of the East Baton Rouge Parish Sheriff's Office pursued her. Defendant tripped and fell as she reached some steps. As she tripped, she either dropped or threw a cigarette case to the floor. Thompson was six or eight feet behind her at that time. He took custody of defendant, and Schultz retrieved the cigarette case. He opened it and recognized what he believed to be narcotics. Defendant was placed under arrest.
Mary Sue Trull, nee Brown, a forensic scientist in the field of chemical analysis of controlled dangerous substances, tested the substances that were found inside the cigarette case. Her tests disclosed that the substances were: 127 peach-colored tablets containing pentazocine; 127 blue tablets containing pyrobenzamine, a non-controlled substance; 10 tablets containing methamphetamine- ; 6 1/2 tablets containing diazepam; and 25 tablets containing phenmetrazine.
Some of the pills inside the cigarette case were in aluminum foil and some were in small plastic bags. Additionally the cigarette case included other pieces of aluminum foil, two pieces of blue paper, one piece of white paper and three pieces of cellophane or plastic wrap.
By means of this assignment, defendant asserts that the trial court erred when it sustained the state's challenge for cause of prospective juror, Shirley Promise.
In questioning the prospective jurors, the trial judge asked if there was any reason they might not be able to serve on the jury as a fact-finder and accept and apply the law to the case. Ms. Promise answered, "yes", and then indicated to the judge her reluctance to sit in judgment of a person.
The judge then turned questioning over to the assistant district attorney, who asked the prospective jurors: "... are any of you members of that religious order of a Baptist church that does not allow you to judge your fellow person?" Ms. Promise answered, "yes". In response to questioning she then indicated she didn't believe she should judge other people.
The assistant district attorney then asked each of the prospective jurors whether he or she could return a verdict of guilty as charged if the state proved each of the elements of each of the counts as required by law beyond a reasonable doubt. To this question, Ms. Promise indicated that her answer remained the same.
The defense then questioned Ms. Promise and obtained from her the statement that she supposed she could vote not guilty if the state failed in its proof, and she "possibly" could vote guilty if it carried its burden.
Following the conclusion of questioning of prospective jurors, the state renewed its challenge of Ms. Promise for cause, and the court sustained the state's challenge.
The defendant asserts that Ms. Promise's difficulty was not partiality, but a reluctance to assume the responsibilities of a juror. The defendant also argues that Ms. Promise's reluctance was overcome upon further inquiry by defense counsel by her demonstrated ability and willingness to decide the case. In conclusion the defendant argues that the prosecution's challenge for cause is unwarranted and unfounded in law, and, therefore, the trial court's sustaining the state's challenge for cause of Ms. Promise constituted an abuse of discretion.
Paragraphs (2) and (4) of La.C.Cr.P. art. 797 provide as follows:
The state or the defendant may challenge a juror for cause on the ground that:
* * *
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
* * *
(4) The juror will not accept the law as given to him by the court
....
The trial judge is vested with broad discretion in ruling on a challenge for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Glaze, 439 So.2d 605 (La.App. 1st Cir.1983).
After reviewing both the questions propounded to Ms. Promise and her answers thereto, we reject the defense's assertion that she had been rehabilitated and conclude instead that the cumulative, though not entirely consistent, import of her responses evinces an inability on her part to accept the law as given to her by the trial court and an inability to render an impartial verdict according to the law and the evidence. Under these circumstances the trial court's ruling sustaining the state's challenge of Ms. Promise for cause was clearly not an abuse of its wide discretion.
This assignment lacks merit.
ASSIGNMENTS OF ERROR NOS. 4 AND 5:
By means of these assignments defendant asserts that the trial court erred by overruling her objections to the state's questions directed to Jay Thompson of the Louisiana State Police, as to the street values of methamphetamine and preludin in Baton Rouge at the time of defendant's arrest, on the basis that those questions called for hearsay responses.
The alleged improper question regarding methamphetamine is as follows:
Q. All right. Once again, going back to your training and expertise and the fact that you were working narcotics three and a half--or six years and then the three years, did you have occasion to talk to people on the street that use desoxyn or methamphetamine or did you have occasion to work with undercover officers to find out what the current price for methamphetamine was at that time?
Defense counsel objected to the question on the basis of hearsay. The objection was overruled, and Thompson then testified that he did not know the street value of desoxyn and valium at the time of defendant's arrest because those substances were very seldom encountered by him on the streets of Baton Rouge at that time. Defendant could in no way be prejudiced by this question.
The other alleged improper question dealt with the officers' having obtained information from his contact with people in narcotics investigations of the street value of Phenmetrazine. The officer was familiar with this drug and testified that from his information from informants and others with whom he dealt in his investigations, the going price for phenmetrazine tablets at that time was twelve to fifteen dollars per tablet.
In State v. Staton, 433 So.2d 222, 224 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1112 (La.1983), we stated the following:
Intent is a state of mind and need not be proven as a fact, but may be inferred from the circumstances. State v. McDermitt, 406 So.2d 195 (La.1981). The circumstantial evidence considered includes the quantity of the illegal drug and the circumstances of its possession, State v. Elzie, 343 So.2d 712 (La.1977). Testimony as to the street value and dosage units of the narcotic is also relevant to the issue of intent. State v. Tornabene, 337 So.2d 214 (La.1976).
Opinions of persons having special knowledge obtained by means of special training or experience are admissible as expert testimony. La.R.S. 15:464. "Every expert witness must state the facts upon which his opinion is based." La.R.S. 15:465.
While we are cognizant that the record does not disclose that Jay Thompson had been admitted in the instant case as an expert witness in the field of the street valuation of controlled dangerous substances, we are convinced by our careful review of the record that he possessed the special training and experience required to express an expert opinion in response to the state's questions as to the street values of the controlled dangerous substances involved in the instant case. 1 He also stated the facts upon which his opinions were based. See State v. Clay, 408 So.2d 1295 (La.1982); State v. Stewart, 357 So.2d 1111 (La.1978). The trial court properly allowed Thompson to respond to the state's questions.
These assignments are without merit.
By means of this assignment of error, defendant contends that the trial court erred by failing to grant her motion for...
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