State v. Burns

• Court: Court of Appeal of Louisiana
• Writing for the Court: FRED W. JONES, Jr.; SEXTON; SEXTON
• Citation: State v. Burns, 504 So.2d 124 (La. App. 1987)
• Decision Date: 25 February 1987
• Docket Number: No. 18588-KW,18588-KW
• Parties: STATE of Louisiana, Appellee, v. Paul BURNS, Appellant.

Page 124

504 So.2d 124

STATE of Louisiana, Appellee, v. Paul BURNS, Appellant.

No. 18588-KW.

Court of Appeal of Louisiana Second Circuit.

Feb. 25, 1987.

Writ Denied May 8, 1987.

John Milkovich, Shreveport, for appellant.

Powell A. Layton, Jr. and Tommy Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before FRED W. JONES, HALL and SEXTON, JJ.

FRED W. JONES, Jr., Judge.

Following a bench trial the defendant Burns was convicted of possession of marijuana (R.S. 40:966) and sentenced to serve six months in jail. We granted a writ to review the defendant's conviction. He argues for reversal on the basis of 19 assignments of error.

Many of the salient facts were sharply contested at trial. Agent Mark Holley of the Shreveport Police Narcotics Division testified that he was working in an undercover capacity on August 14, 1985. Agent Holley, who was outfitted with an electronic transmitter, went to the parking lot of Byrd High School in Shreveport at the corner of Gladstone and Line, accompanied by another police officer, Marshall Johnson. The officers were met there by a confidential informant, whose identity was later revealed as Billy Fontenot. Agent Holley inquired of Fontenot the location of the subject from whom he was to buy marijuana and learned that the individual was Paul Burns, parked across the street in a green Volvo. Fontenot got into Holley's car and the three men drove across the street alongside Burns' vehicle. Agent Holley noted that there were two other individuals, a white female and a small child in the back seat, in Burns' car besides Burns. Holley, Johnson, and Fontenot exited Holley's automobile, walked to the side of Burns' car and greeted him. According to Agent Holley's testimony, Burns said "I told you I didn't want to meet anybody. I'll drive around the corner." Burns then drove southbound through the parking lot toward Stephenson Street, out of the officer's vision.

At Agent Holley's instruction, Fontenot walked to Burns' car to discern what the problem was. Fontenot returned to the officer with a paper sack that contained a plastic bag of marijuana. Agent Holley then gave Fontenot five $20 bills and watched Fontenot cross the street in the same direction that Burns had driven. Holley then instructed surveillance officers to arrest Burns.

Agent Mark McCauley was in an unmarked patrol car located at the intersection of Line Avenue and Stephenson with Agent Larry Simon. Officer McCauley received the electronic transmission from Agent Holley that the confidential informant had been given $100.00 with which to purchase marijuana from the subject in the dark green Volvo. Thereafter, McCauley moved his car to an area where he could see Fontenot walk to the car and make the exchange. Officer McCauley observed the confidential informant approach the vehicle, stand there for a second, and walk away as the police were driving toward the car. Although Officer McCauley testified that he could see the confidential informant standing at the vehicle, he could not see if the confidential informant reached in the window because of "the way it was set up." As Fontenot walked away from Burns' vehicle, Officer McCauley drove his vehicle to the rear of the Volvo while another undercover car driven by Sergeant Miller blocked the defendant from the front.

The officers identified themselves and instructed defendant to exit the car. In the process, several bills, later determined to be five $20 bills, fell to the ground out of Paul Burns' lap. At that point, the defendant was frisked, advised of his rights, and arrested for distribution of marijuana.

Following the arrest of Paul Burns, it was determined that the green Volvo was registered in the name of Teresa Burns, his wife, who was present at the scene. Teresa Burns then signed a consent to search form.

Sergeant Jack Miller conducted the search of the car. He found small plastic sandwich baggies similar to those used to package the marijuana recovered in the purchase, scales capable of weighing items up to one ounce, and a tray which was part of the scale. Additionally, in a briefcase in the car, Sergeant Miller found a piece of paper containing figures indicative of sums paid for varying amounts of marijuana. Other items of paperwork were also recovered from the briefcase located in the car. However, the nature of these items was not explored at trial.

Lieutenant Milton McGrew of the Shreveport Police Department testified that he examined the items of physical evidence for fingerprints and found smudges on the baggie, but did not find enough points for a fingerprint identification.

The defense version of events differs substantially in several respects from the version presented by the prosecution. Teresa Burns, Paul Burns' wife, testified that Bryan Fontenot, the brother of Billy Fontenot, the confidential informant, telephoned the Burns' residence several times the day before the arrest and additionally on the morning of the arrest. She stated that her husband did not return these calls. However, on the day of the arrest, the couple, accompanied by their five year old child, Nathan, left Bossier City about 7:15 A.M. and went by the place where Bryan Fontenot and Paul Burns worked. Paul Burns was a construction foreman, and Bryan Fontenot worked as a laborer under his supervision. The construction site was near the parking lot of Byrd High School. After ascertaining that Bryan was not at the construction site, the Burns decided to go to the Fontenot's home, which was the fourth or fifth house down from the parking lot on Stephenson. However, before the couple got to the Fontenot's house, they saw a person standing in the parking lot. Thinking it was Bryan Fontenot, they approached the individual and learned that it was Billy Fontenot, his brother.

Paul Burns asked Billy where Bryan was. Billy told him that Bryan was on his way and was with friends. The couple waited five or ten minutes. A black or dark blue Mustang was driven up and parked in the Byrd High School parking lot. According to Teresa Burns, Billy said "that is probably him," and walked over to the car. Billy got in the car and drove back over to them.

Paul Burns testified that when the car drove up, a man and a girl with a headband got out of the car. The defendant stated that the girl looked like "she came back from time in the 1970's or something like that." After Billy got out of the car, the defendant testified that he expressed his confusion to Billy because he did not understand what was going on since Bryan was not in the car and he did not know the people getting out of the car. Therefore, he informed Billy that he was going to Billy's house, around the corner on Stephenson Street.

Thereafter, according to the defendant's testimony, he drove around the corner as Billy approached him. The defendant asked him where Bryan was because he wanted to see him immediately. He also asked why he had driven up in the company of the individuals in the car. The defendant stated that Billy went into his house and came out and said that Bryan was not in the house but that he would go get him. Burns testified that Billy went back around the corner toward the Glenwood Theater again, returning a short time later and informing the defendant that Bryan was not around. As the defendant began to drive away, his car was surrounded by police officers with their weapons drawn and aimed at the heads of the occupants of the Burns' vehicle.

Teresa Burns' testimony was basically consistent with that of Paul Burns, except she testified that the arrest occurred immediately after Billy went into the house to check to see if Bryan was there, and returned to the car.

ASSIGNMENT OF ERROR NO. 1:

In this assignment of error defendant challenges the sufficiency of the evidence adduced by the prosecution to convict him of possession of marijuana.

Recently, this Court reiterated the proper appellate review standard for sufficiency of evidence claims in State v. McFadden, 476 So.2d 413 (La.App. 2d Cir.1985), writ denied 480 So.2d 739 (La.1986):

"LRS 15:438 is an evidentiary guide for the jury and a tool or methodology for the reviewing court to employ in determining whether the rational juror in the Jackson v. Virginia constitutional due process test might have concluded that defendant's alternative hypothesis of innocence is sufficiently unreasonable to conclude that the evidence proved guilt beyond a reasonable doubt. State v. Chism, supra ; State v. Wright, 445 So.2d 1198 (La.1984); State v. Captville, 448 So.2d 676 (La.1984).

The test, whether expressed in terms of doubt or of hypothesis, is the reasonableness of the ultimate conclusion on the facts and inferences which may be drawn from those facts in the particular case. Compare State v. Shapiro, 431 So.2d 372 (La.1982), and State v. Rault, 445 So.2d 1203 (La.1984). In some cases, "the defendant's circumstantial theory [or hypothesis] is [found to be] remote [or unreasonable] ..." when it is compared "... with the prosecution's hypothesis of defendant's guilt, which is consistent overall with the evidence." State v. Graham, 422 So.2d 123, 130 (La.1982)."

The main thrust of defendant's sufficiency claim is that no prosecution witness saw Paul Burns in possession of marijuana. Additionally, defendant argues that the confidential informant, Billy Fontenot, had the opportunity when he was out of view of the police surveillance vehicles to retreat into his home on Stephenson Street and retrieve the marijuana which was later turned over to police. As a consequence, he contends that a reasonable hypothesis of innocence was not negated by the prosecution's case against him. As additional support for this position defendant notes that the confidential informant was not searched prior to the transaction and was not outfitted with an electronic transmission device. Moreover, he asserts that the prosecution's case contained "serious gaps, omissions...