State v. Francis

• Decision Date: 24 January 1977
• Docket Number: No. 58466,58466
• Citation: 345 So.2d 1120
• Parties: STATE of Louisiana v. Bernard FRANCIS.
• Court: Louisiana Supreme Court

Page 1120

345 So.2d 1120

STATE of Louisiana v. Bernard FRANCIS.

No. 58466.

Supreme Court of Louisiana.

Jan. 24, 1977.

On Rehearing May 16, 1977.

Dominic J. Gianna, New Orleans, of counsel, Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

A bill of information charged the defendant, Bernard Francis, with the distribution of heroin, a violation of LSA-R.S. 40:966. A jury found the defendant guilty as charged. The defendant received the mandatory life sentence.

The defendant appeals, relying on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant avers that the trial judge improperly admitted State's exhibits 1, 2, 3, 4, and 5 into evidence as the State failed to establish a proper chain of custody. These exhibits consist of an open lock-sealed envelope in which the undercover agent placed the substance obtained from the defendant (S--1), an open mailing envelope in which the undercover agent placed S--1 for mailing (S--2), a closed lock-sealed envelope in which the chemist placed the substance obtained from the defendant after testing (S--3), a registered return receipt (S--4), and a registered receipt requested form (S--5).

When the State introduced S--4 and S--5 into evidence, defense counsel stated 'I will not object to either one.' (Tr. p. 77). Thus, the defense waived any complaint on appeal relative to the admission of S--4 and S--5. LSA-C.Cr.P. Art. 841.

At trial, defense counsel made the following objection to the admission of S--1, S--2, and S--3:

'I object to the introduction of the evidence, because I don't think the chain of evidence is complete as to Mr. Wein (Mr. Wener), who received it allegedly has not testified.' (Tr. p. 77).

In brief, the defendant expands his argument to include several other grounds to support his basic contention. The purpose of an objection is to apprise the trial judge of the specific basis for the complaint, so that the trial judge can intelligently rule on the complaint and take corrective action, when necessary. See State v. Nicolaus, La., 340 So.2d 296 (1976). Since the objection made at trial only apprised the judge of one specific ground for objection, the judge had no opportunity to rule on the additional grounds. These additional grounds cannot be raised for the first time on appeal. LSA-C.C.r.P. Art. 841; State v. Rossi, La., 273 So.2d 265 (1973); State v. Jones, 250 La. 1007, 201 So.2d 105 (1967).

The only issue properly before us is whether the failure of the State to call Mr. Wener to testify rendered the tangible evidence inadmissible because of a faulty foundation.

Undercover Agent Logan testified that he purchased a plastic bag bound by a green rubber band containing 24 tin foil packages of powder from the defendant at 4909 St. Claude Avenue. He then brought the bag to the New Orleans Regional Office of the Drug Enforcement Administration. There he weighed it, logged it, and initialed the original containers. He sealed the entire package in a lock-sealed envelope (S--1). He then placed this envelope into a larger envelope (S--2) and sent it by registered mail to the Southeastern Regional Laboratory in Miami. Agent Logan identified S--1 from his signature which appears across its flap on the back and S--2 by the registered mail number assigned by the post office. (The registered mail number on S--2 corresponds to the number on S--5, the registered receipt requested form.)

Mr. Owensby, a special agent with the Drug Enforcement Administration, testified that he witnessed Agent Logan prepare the substance obtained from the defendant for mailing. He assisted in this preparation by signing his name across the seal of the envelope carrying the substance (S--1). He identified the lock-sealed envelope designated as S--1 by his signature which appears on its back.

Mr. Arnold, a forensic chemist at the laboratory, testified that Mr. Wener, the supervisory chemist, received the envelopes in the mail. Arnold based this conclusion on the fact that Wener's initials appear below the date stamp embossed on both S--1 and S--2. Arnold could identify Wener's initials and signature, since he has seen them approximately six times a day for six years. In addition, Wener's signature is on S--4 as the addressee's agent.

Mr. Arnold additionally testified that he received the S--1 envelope intact and the S--2 envelope opened and emptied. He opened S--1 and found 24 packets, each containing a powder. After conducting five different tests on 14 random packets, he then tested the composite. Each test revealed the presence of heroin. Arnold then placed the packets and the powder into a locked sealed envelope (S--3). He locked and sealed the envelope, put his name and the date he performed the analysis on its back. He stapled all three envelopes, S--1, S--2, and S--3 together and gave it to the evidence custodian. The custodian placed it in the vault. Arnold could recognize S--1, S--2, and S--3 as the envelopes he handled by his signature or initials on each. Arnold further testified that S--3 was in the same condition as when last he examined it, unopened.

No witness positively traced the location of the evidence in question from the time the custodian placed it in the vault until the trial. On the morning of the trial Agent Logan gave the evidence to Mr. Arnold.

The condition of the physical evidence, S--1, S--2, and S--3, corroborates the details of the above testimony.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), U.S. cert. denied 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972), we stated:

'To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.

'The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.

'The lack of positive identification goes to ghe weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton's Criminal Evidence (12th ed.), § 673, p. 617.'

See also State v. Perkins, La., 337 So.2d 1145 (1976); State v. Jones, La., 332 So.2d 466 (1976).

Here, the failure of the State to call Mr. Wener to testify does not render the evidence inadmissible. The foundation meets the above standard, and the evidence was properly admitted at the trial.

ASSIGNMENT OF ERROR NO. 2

At the close of the State's case, the defense made two motions. The first was a motion for a directed verdict based on the allegation that since the State did not introduce the heroin, it fell short of the requisite burden of proof. ¹ The second was a motion to quash based on the contention that the State breached its commitment with the defendant to nolle prosequi the charge if the heroin was not located. The defense assigns as error the trial court's denial of both motions.

When the defense asserts that the trial judge committed reversible error in denying his motion for a directed verdict, this Court will overturn the conviction only if there is no evidence of the crime or an essential element thereof. State v. Smith, La., 332 So.2d 773 (1976); State v. Butler, La., 331 So.2d 425 (1976); State v. Kaufman, La., 331 So.2d 16 (1976).

Agent Logan testified that he received 24 packets of powder wrapped in tin foil contained in a plastic bag which was fastened with a green rubber band. He mailed this to Miami. The analysis conducted by a chemist in Miami revealed that this substance was heroin. The chemist further testified that he placed the substance tested into a lock-sealed envelope designated S--3, and sealed it. At trial he identified S--3 as this envelope. The envelope remained in the same condition at trial as it had when placed in the laboratory vault.

The defense contends that the heroin was not specifically introduced, but only the envelope (S--3), itself. When the State mentioned S--3, undoubtedly the reference was both to the envelope and its contents. (Tr. p. 18). For the formal admission of S--3, there was no mention of either the envelope or its contents. (Tr. p. 77).

The S--3 envelope holds a sealed plastic sleeve. Taped on the outside of the sleeve is a green rubber band and a Bureau of Narcotics and Dangerous Drugs evidence sticker. The signature of Agent Logan, the date the agent seized the evidence, and the case number appear on the sticker. This number corresponds to the number displayed on both the S--1 and the S--3 envelopes. The initials of Mr. Arnold, the chemist, and the evidence number also appear on the outside of the sleeve. The same evidence number is on S--1, S--2, and S--3. Inside the plastic sleeve is another plastic bag which contains a brown powder and several tin foil squares. Mr. Arnold's initials and the evidence number are on this plastic bag.

We conclude that there is some evidence of the crime charged.

The defendant further argues that the trial judge improperly overruled his motion to quash which...