State v. Clouatre
| Decision Date | 29 June 1972 |
| Docket Number | No. 51517,51517 |
| Citation | 262 La. 651,264 So.2d 595 |
| Parties | STATE of Louisiana v. Chester A. CLOUATRE. |
| Court | Louisiana Supreme Court |
Andrews & Barry, Dean A. Andrews, Jr., New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Appellant was charged by bill of information with possession of a narcotic drug. He was tried, found guilty and sentenced to serve six years at hard labor. On this appeal a number of bills of exceptions are presented for consideration.
This bill was reserved to the trial judge's denial of defendant's motion to suppress 'any tangible objects or other property or documents, books, papers or other writings.' The ground of the objection is that the objects obtained from the person of the accused were illegally seized. The illegality is said to stem from the objects having been obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Section 7 of Article I of the Constitution of Louisiana. In short, the arrest was without reasonable, or probable, cause.
The test this Court has applied to a determination of probable cause has been recently expressed in State v. Dell, 258 La. 1024, 249 So.2d 118 (1971). In effect we said there that under Article 213 of the Code of Criminal Procedure a police officer may arrest a person without a warrant whenever the officer has reasonable cause to believe that the person to be arrested is committing a crime. Numerous decisions of this Court have held that reasonable, or probable, cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to justify a man of average caution in believing that an offense is being committed; and that in determining the existence of reasonable cause for arrest, the rigorous proof required for conviction is not needed, as the concept of reasonable cause is something less than this and must be judged by common sense and by practical considerations of day-to-day life on which average, experienced police officers can reasonably be expected to act.
The police officers who made the arrest knew of Clouatre. They knew him to be a known user of narcotics. Three officers, Sergeant Fred Williams and Detectives Derose and Saacks, had a residence under surveillance, a place where traffic in narcotics was known to take place. Three days previously another individual in possession of narcotics had been arrested as he departed from this residence. Clouatre was observed entering the residence. His actions were generally suspicious and not those of an unconcerned citizen. The officers pulled abreast of Clouatre shortly thereafter as he was walking along the street after leaving the residence. At that time they saw glassine envelopes in his left hand (these being the usual containers for heroin). He was then arrested and almost immediately he was patted down, and a 'cooker' and hypodermic outfit were found in his pants pocket. These are the objects sought to be suppressed.
In our view these facts support a finding of probable cause for the arrest, search and seizure, and the trial judge properly denied the motion to suppress. This bill is, therefore, without merit.
When defense counsel objected because the prosecutor read Article 401 of the Code of Criminal Procedure to a prospective juror during examination on voir dire to ascertain if the juror met the qualifications prescribed by that article, this bill was reserved. The article reads:
In order to qualify to serve as a juror, a person must:
(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service;
(2) Be at least twenty-one years of age;
(3) Be able to read, write, and speak the English language;
(4) Not be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity; and
(5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.
Although claiming that the reading of this article to the prospective jurors prejudiced his client, defense counsel has not set forth wherein the alleged prejudice occurs; nor does he cite authority in law to support his position. The objection has no merit. This bill has no merit.
When the prosecutor named four of the witnesses the State would call and sought to ask prospective jurors on voir dire whether they were acquainted with them, defense counsel objected.
Under Article 797(2) of the Code of Criminal Procedure a juror may be challenged for cause by either the State or the accused on the ground that the juror is not impartial, whatever the ground of his partiality. This questioning could reasonably lead to a test of the juror's impartiality. Moreover, the trial judge informs us in a per curiam that he overruled the objection because counsel would be entitled to this information in order to exercise a peremptory challenge under Article 797 of the Code of Criminal Procedure.
The ruling is reasonably well-founded and within the discretion of the trial judge. It does not warrant reversal. No prejudice is shown. La.Code Crim.P. art. 921.
The bill is without merit.
During voir dire examination the prosecutor read Section 962 of Title 40 of [262 La. 662] the Revised Statutes, the statute defining the crime of which he is charged, in order to ascertain from the prospective jurors whether they entertained objections to enforcing the law governing the possession of narcotics such as heroin.
Although we have disapproved lengthy statements of particular phases of law to jurors on voir dire examination, this incident only involves a verbatim recitation of the statute under which the accused was charged.
Considering the discretion which the law invests in the trial judge this ruling was proper.
The bill is without merit.
In questioning the prospective jurors on voir dire, the prosecutor asked them whether they would accept the law to the effect that the quantity of heroin possessed by an accused is unimportant to the charge of possession of narcotics, so long as some quantity is in his possession--such as the residue in some object, a minimal amount. Defense counsel objected to the question and the objection was overruled.
No abuse of discretion results from this ruling. Although we think this questioning treads unduly close to that stage of excessive inquiry into the law which is objectionable, the circumstances reveal no abuse of the trial judge's discretion.
On voir dire the prosecuting attorney sought to explain to the prospective jurors the concept of reasonable doubt in the law as it relates to a criminal trial, and defense counsel objected. We are not furnished with argument or authority in support of the defense objection, except, it is said, the questioning transcends the limits within which the law may be discussed on voir dire and the ruling goes beyond the latitude allowed the trial judge in such matters.
We note no abuse of discretion and find this bill to be without merit.
Defense counsel reserved this bill to the ruling of the trial judge permitting the State's expert witness to testify over his objection.
The State was eliciting testimony from the chemist who made the analysis of the narcotic seized on Clouatre. The chemist explained in his testimony how he conducted the examination and in doing so exhibited the evidence envelope containing the narcotic and paraphernalia taken from Clouatre's pockets. The objection was that no proper predicate was laid to permit the evidence to come before the jury.
Later as the chemist described how he made an incision in the front of the envelope, withdrew the material therefrom and analyzed it, objection was made that the chemist was no longer employed by the police and was, therefore, unable to account for what happened to the evidence in the interim between the time when he worked for the police and the time of the trial when he testified.
As we understand this contention, the State did not lay the proper predicate for the introduction into evidence of the narcotic paraphernalia seized from Clouatre--that is, custody and connexity were not established. Reliance is placed upon Article 773 of the Code of Criminal Procedure to sustain the defense position. That article reads:
Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.
Aside from the fact that the objection to the admissibility of this evidence as the fruit of an unlawful arrest, search and seizure had already been determined in the motion to suppress, the requirement that the foundation must be laid before the evidence is admissible is itself subject to exceptions.
The basic purpose of the quoted article, as the comment explains, is to allow counsel to have a free hand in the conduct of his case. Furthermore, frequently the admissibility of some evidence depends on whether other evidence is admitted. Necessarily, such related evidence cannot be introduced at the same moment and frequently requires the joint testimony of several witnesses. Usually, therefore, the first piece of evidence is admitted subject to being 'connected up' or subject to the second related piece of evidence being admitted.
Since it has not been shown that this testimony and evidence exhibited to the jury was not properly 'connected up' by subsequent evidence, the objection has no merit.
In testifying, the chemist who analyzed the narcotic seized from Clouatre stated, 'This is what we call an evidence envelope...
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...held that mistrial is a drastic remedy to be sparingly granted. State v. Sylvester, 298 So.2d 807 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). Before a verdict approved by a judge is set aside on ground of improper argument, this court must be thoroughly convinced that t......
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...367 (1972); State v. Whitsell, 262 La. 165, 262 So.2d 509 (1972); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); State v. Hayes, 262 La. 674, 264 So.2d 603 (1972). By overruling these cases and the long line of decisions preceding S......
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...State v. Hutto, supra ; State v. Governor, 331 So.2d 443 (La.1976); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). The trial judge immediately admonished the prospective jurors to disregard the remark. No showing was made that the response......
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