State v. Converse
| Decision Date | 21 June 1988 |
| Docket Number | No. KA,KA |
| Citation | 529 So.2d 459 |
| Parties | STATE of Louisiana v. Roland CONVERSE. 87 1538. |
| Court | Court of Appeal of Louisiana — District of US |
Robert Menuet, Napoleonville, for State.
Tim Barbier, Napoleonville, for defendant.
Before LOTTINGER, EDWARDS and ALFORD, JJ.
Roland Converse was charged by bill of information with possession of contraband in a penal institution, a violation of La.R.S. 14:402. He was tried by a jury, which convicted him as charged. The trial court imposed the maximum sentence of five years at hard labor, to be served consecutively to the sentence he is presently serving. 1 Defendant appealed, urging five assignments of error, as follows:
1. The trial court erred by denying his motion to quash the bill of information.
2. The trial court erred by permitting a lay witness to offer opinion testimony.
3. The trial court erred by permitting a witness to offer prejudicial testimony.
4. The evidence is insufficient to sustain a conviction.
5. The trial court erred by failing to include a proposed jury charge.
Defendant was charged for the possession of contraband upon the premises of the Assumption Parish Detention Center. During a routine search of his cell, Assumption Parish deputies discovered two lengths of wire, one of which was approximately eight inches long and the other approximately four inches long; a disposable razor; and a straight-edged razor blade that appeared to have been removed from another disposable razor. The wires were discovered under defendant's mattress. The razor and razor blade were taped to the toilet. Defendant was the only occupant of the cell.
By assignment of error number one, defendant submits that the trial court erred by denying his motion to quash the bill of information on the ground that La.R.S. 14:402 C, the provision under which he was convicted, is unconstitutional. Citing State v. Taylor, 479 So.2d 339 (La.1985), defendant argues that the statute unconstitutionally delegates the legislative power to create and define a criminal offense by vesting the prison officials with the unbridled discretion to determine what constitutes contraband.
In State v. Taylor, the Louisiana Supreme Court considered the constitutionality of La.R.S. 14:402 A, which proscribes the possession of contraband at a state penal facility. At that time, La.R.S. 14:402 A provided as follows:
A. For the purpose of inmate and institutional security at state adult or juvenile correctional institutions, contraband shall be defined as any article, substance, or thing which is not issued by the authorities operating the facility, sold through the institutional canteen, specifically permitted by applicable regulations, or otherwise specially authorized by the head of the facility or his designee. Contraband includes but is not limited to any substance or device defined in the Uniform Controlled Dangerous Substances Law except where prescribed by a physician, provided the drugs are contained in a container from the drug store bearing the full identification of the doctor who issued the drugs, the druggist who dispensed same and the number of the prescription, and that said drugs are not concealed upon the body of the person; any weapons or devices designed to kill or wound or any plans for the making or manufacturing of such weapons or devices; explosives or combustibles; any plans for escape from an institution; intoxicating beverages; stolen property, and money which is legal tender, except where specifically authorized by applicable regulations.
In Taylor, the Court noted that the sole issue presented for its consideration was whether or not the first sentence of La.R.S. 14:402A was constitutional. That sentence defined contraband as any article, substance or thing not issued by the authorities, sold through the canteen, permitted by applicable regulation or otherwise specially authorized. The Court compared the statute as it then read to the provisions considered and approved in State v. Morgan, 238 La. 829, 116 So.2d 682 (1960), and found that the statute failed to prescribe sufficient standards by which the delegated power was to be exercised. The court concluded that, since the delegated authority was unfettered, its exercise became legislative, not administrative, in nature and contravened the mandate of La. Const. Art. 2, Sec. 2. 2 The court then specifically held that the first sentence of La.R.S. 14:402 A, generally defining contraband, was unconstitutional. The Court further noted that the remainder of the statute was substantially the same as that previously found constitutional in State v. Morgan. State v. Taylor, 479 So.2d at 343.
Defendant was charged with the possession of contraband on the premises of a municipal or parish prison or jail. In contrast to La.R.S. 14:402 A, proscribing the possession of contraband at a state penal institution, at the time of the instant offense, La. R.S. 14:402 C provided as follows:
C. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit: any currency or coin which is legal tender; any stolen property; any article of food or clothing; any intoxicating beverage or beverages which causes or may cause any intoxicating effects; any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq.; and any firearm or any instrumentality customarily used as a dangerous weapon, including explosives or combustibles, except through regular channels as authorized by the officer in charge of any institution herein, or any plans for the making or manufacturing of such weapons or devices; however, the definition of contraband is not restricted to those articles set forth hereinabove. Whoever violates any provision of this Subsection shall be imprisoned with or without hard labor for not more than five years. 3
This section does not contain the sweeping definition of contraband declared unconstitutional in State v. Taylor; nor does it vest prison officials with the unfettered discretion to designate a substance as contraband. Rather, the provision sets forth a list of items specifically declared to be contraband. Although defendant contends that the section providing that the possession or introduction of certain items is contraband "except [if obtained] through regular channels as authorized by the officer in charge of any institution herein" is a delegation of legislative authority, that language was considered and approved in State v. Morgan. Citing City of Baton Rouge v. Shilg, 198 La. 994, 5 So.2d 312, 313 (1941), the Court stated the general rule as follows:
From a review of the authorities, we find the generally accepted rule to be that a statute or ordinance vesting arbitrary discretion in a public official without prescribing fixed and definite rules or specific conditions for the official's guidance is unconstitutional. [citations omitted] ... "The rule is not without exception or modification, ... because some situations, and some statutes or ordinances, in the very nature of things, require the vesting of discretion in a subordinate commission or in the officer charged with the duty of enforcing the statute or ordinance; e.g., where it is impracticable to lay down a definite or comprehensive rule, or where the discretion relates to the enforcement of a police regulation requiring prompt exercise of judgment." (citations omitted).
The Court concluded that the statute was constitutional because the act itself prohibits the introduction or removal of contraband in all cases except where it is done through regular channels and with authority of the officer in charge. The Court further noted that, if the authority of the officer is granted, there is no crime; and, if the authority is not granted, the legislature itself made the act a crime. State v. Morgan.
Although defendant argues that this language is unconstitutional, he does not distinguish the statute as it existed at the time of the instant offense from the provisions considered and approved in State v. Morgan. Since the Louisiana Supreme Court has previously determined that the delegation of authority to the officer in charge of the institution which enables him to authorize the possession or introduction of items that otherwise would be contraband is not an unconstitutional delegation of legislative authority, we find that this assignment of error has no merit. 4
By assignments of error two and three, defendant contends the trial court erred by permitting the state to introduce prejudicial testimony by Deputy Ronnie Daigle. In assignment of error number two, defendant submits that the court erred by permitting Deputy Daigle to testify that the two pieces of wire found under defendant's mattress could be used as a dangerous weapon. In assignment of error number three, defendant argues that the trial court erred by permitting Deputy Daigle to testify about an incident wherein he was injured by an enraged inmate.
Defendant complains that Deputy Daigle was allowed to offer opinion evidence to the effect that the piece of wire could be used in a dangerous manner, (despite the fact that he was not qualified as an expert witness). He submits that the state was permitted to put inflammatory comments regarding the possible uses of the evidence before the jury; and, therefore, its admission was prejudicial.
Deputy Daigle testified that, at the time of the trial, he had been employed by...
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State v. Howard
...as to matters within his personal knowledge acquired through experience without first being qualified as expert); State v. Converse, 529 So.2d 459, 464 (La.App. 1st Cir.1988) (deputy could testify that wire found in defendant's possession in prison could be used in a dangerous manner, witho......
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State v. Nagi
...of fact or mistake of fact precludes the presence of any mental element required in that crime. La. R.S. 14:16; see State v. Converse, 529 So.2d 459, 465 (La. App. 1st Cir.), writ denied, 533 So.2d 355 (La. 1988). Whether an accused knows a substance he possesses is a narcotic drug may be p......
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97-1593 La.App. 3 Cir. 7/15/98, State v. President
...Guilty knowledge is an essential element in proving constructive possession and may be inferred from the circumstances. State v. Converse, 529 So.2d 459 (La.App. 1 Cir.), writ denied, 533 So.2d 355 (La.1988); State v. Jones, 551 So.2d 18 (La.App. 4 Cir.1989). Defendant's statement was an ad......
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98-210 La.App. 3 Cir. 10/7/98, State v. Colomb
...Guilty knowledge is an essential element in proving constructive possession and may be inferred from the circumstances. State v. Converse, 529 So.2d 459 (La.App. 1 Cir.), writ denied, 533 So.2d 355 (La.1988); State v. Jones, 551 So.2d 18 (La.App. 4 Cir.1989). In these circumstances, the fac......