State v. Washington

• Decision Date: 08 April 1992
• Docket Number: No. 23538-KA,23538-KA
• Citation: 597 So.2d 1084
• Parties: STATE Of Louisiana, Appellee, v. Elvis L. WASHINGTON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1084

597 So.2d 1084

STATE Of Louisiana, Appellee, v. Elvis L. WASHINGTON, Appellant.

No. 23538-KA.

Court of Appeal of Louisiana Second Circuit.

April 8, 1992.

Stephen R. Burke, Minden, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, James M. Bullers, Dist. Atty., Charles E. McConnell, Asst. Dist. Atty., Minden, for appellee.

Before MARVIN, SEXTON and HIGHTOWER, JJ.

HIGHTOWER, Judge.

A jury found Elvis Washington guilty as charged of possession of cocaine, LSA-R.S. 40:967 C. After considering a presentence investigation report, the trial court imposed a sentence of five years at hard labor and suspended four years of the term. Reserving seven assignments of error, defendant appeals his conviction. We affirm.

FACTS

For a period of time after 2:00 a.m. on July 10, 1989, Deputy Gary Valentine of the Webster Parish Sheriff's Department assisted firefighters by diverting traffic away from the scene of a raging fire. In the course of performing these duties, he noticed a vehicle displaying an old and smudged temporary license plate. After stopping the automobile, the officer requested that the operator, Jessie Moore, produce a license and registration. When the driver presented neither, Valentine arrested him for driving without a license and failing to register the vehicle.

After handcuffing Moore, and upon detecting an odor emanating from the car, the deputy walked to the passenger side of the vehicle. There, he directed defendant to exit from the right front seat. In complying, Washington removed his left hand from a nearby blue bag containing a pistol. Noticing the gun, Valentine arrested defendant for carrying an illegally concealed weapon.

Upon seizing the pistol, the deputy found that it covered a clear plastic bag enclosing four yellowish rock-like objects, later confirmed to be cocaine. Valentine immediately arrested both men for possession of the controlled dangerous substance.

When the jury convicted defendant, this appeal ensued.

DISCUSSION

Assignments of Error Nos. 1 and 6

In his first assignment of error, defendant contends that the charged offense provided no penalty, and, consequently, under LSA-C.Cr.P. Art. 782, he should have been tried by a twelve-person jury and accorded the corresponding number of peremptory challenges. In his sixth specification, he maintains that the trial court erred in denying his motion in arrest of judgment, which averred that the statute prohibiting possession of cocaine provided no punishment. In both instances, his argument is founded upon an assertion that Act 542 of 1990 amended LSA-R.S. 40:967 C to omit the penalty clause.

It should initially be noted that the offense occurred on July 10, 1989, before enactment of the amendment in question, and that the penalty clause then authorized punishment with or without hard labor for not less than two years nor more than five years, in addition to a fine. Thus, as an accused is tried under the statute in effect at the time of commission of the crime, the 1990 revision would not bear upon defendant's prosecution. Furthermore, after examining the legislation at issue, the Louisiana Supreme Court readily concluded that the punitive provisions of LSA-R.S. 40:967 C remained in full force and effect. State v. Hodges, 577 So.2d 728 (La.1991).

Despite defendant's contentions, then, possession of cocaine classified as a relative felony both at the time of the offense and, also, even after the 1990 amendment. Hence, inasmuch as LSA-C.Cr.P. Art. 782 provides for six jurors in cases where the punishment may be confinement at hard labor, the first assignment of error is without merit.

Likewise, the trial court having correctly denied defendant's motion in arrest of judgment filed pursuant to LSA-C.Cr.P. Art. 859(2), the sixth assignment is equally meritless.

Assignment of Error No. 2

In this assignment, it is argued that the trial court erred in permitting Jim Goebel, a forensic chemistry expert with the North Louisiana Crime Lab, to identify the seized substance as cocaine, and in admitting the yellowish "rocks" into evidence. Defendant complains of the witness's inability to recall the specific acts involved in analyzing this particular sample. It is also implied that the procedures followed by the laboratory are not sufficiently accurate.

The competency of an expert witness, i.e., his or her knowledge of the subject matter, must be established to the satisfaction of the court before such testimony is presented. LSA-C.E. Arts. 104(A), 702. A determination of competency is a question of fact committed to the sound discretion of the trial judge, and his ruling in this regard will not be disturbed absent a manifest abuse of that discretion. Cf. State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Abram, 465 So.2d 800 (La.App.2d Cir.1985), writ denied, 469 So.2d 983 (La.1985).

Mr. Goebel testified regarding his educational qualifications and broad experience in identifying cocaine. Additionally, he had been accepted on more than eighty occasions as an expert in the field of forensic chemistry, which includes the analysis of controlled substances. By virtue of that background, he more than adequately qualified as an expert for purposes of identifying the seized substance as cocaine.

As shown by the record, defense counsel extensively cross-examined Mr. Goebel as to his methodology in detecting the presence of cocaine. Any objection as to the accuracy of that testing, then, should go to the weight of the evidence rather than to the admissibility of the substance or its identification as cocaine. State v. Christopher, 561 So.2d 935 (La.App. 2d Cir.1990), writ denied, 567 So.2d 1124 (La.1990). This assignment lacks merit.

Assignment of Error No. 3

In his third assignment of error, defendant alleges that the trial judge erred in allowing the prosecutor to intimidate the primary defense witness, Moore, and by later restricting that individual's testimony.

During defendant's case, Moore testified with respect to how the police had impounded his car a short time before the traffic stop. Later, however, when the state called the same witness in rebuttal, defense counsel sought to elicit a further statement from Moore that he and a local policeman had, at the time in question, been dating the same woman. Apparently, the defense intended to theorize that the officer actually deposited the cocaine in the vehicle during the impoundment.

When the state leveled a relevancy objection at this line of questioning, the trial court limited defendant to establishing that the vehicle had been out of the possession of both him and Moore for a significant period. This is the ruling of which the defense now complains.

The determination of the relevancy of tendered evidence, and therefore the scope of cross-examination, lies within the sound discretion of the trial judge whose rulings will not be disturbed in the absence of an abuse of discretion. LSA-C.E. Art. 611(A); State v. Lard, 568 So.2d 629 (La.App. 2d Cir.1990). Nor will a conviction be overturned unless the defendant shows that he suffered prejudice through a limitation of the cross-examination of a witness. State v. Anderson, 517 So.2d 255 (La.App. 1st Cir.1987).

Here, defendant has failed to demonstrate any prejudice. Though the court did not allow cross-examination which supposedly would have indicated the driver of the car dated a police officer's girlfriend, defense counsel successfully established that the vehicle had been in the possession of others for a significant period of time shortly before the discovery of the cocaine. Therefore, that "hypothesis of innocence" came before the jury for consideration. Moreover, we are convinced that any error in the trial judge's ruling would be harmless under the circumstances of this case. Cf. State v. Freeman, 521 So.2d 783 (La.App. 2d Cir.1988), writ denied, 538 So.2d 586 (La.1989); State v. Anderson, supra. Furthermore, defendant failed to reveal in any manner whatsoever how the state intimidated Moore. Thus, this assignment does not present reversible error.

Assignment of Error No. 4

In this assignment, defendant argues that the trial court improperly restricted his closing argument.

At an early stage of his summation, defense counsel called into question the analysis of the seized substance:

It's a fact that a substance was found in that bag that's believed to be cocaine. It was tested. I've got some problems with that particular test and the reason I do is I'm a lay man like y'all are and I've been working on several different cases dealing with that machine and I have this difficult time understanding how you can run....

These statements prompted an objection from the state, which the court sustained on the grounds that such comments, in regard to facts not in evidence, exceeded the proper scope of closing argument.

Summations in criminal cases should be confined to the evidence admitted, the lack of evidence, conclusions of fact which may be drawn therefrom, and the law applicable to the case. LSA-C.Cr.P. Art. 774; State v. Eaton, 524 So.2d 1194 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989); State v. Messer, 408 So.2d 1354 (La.1982); State v. Williams, 447 So.2d 495 (La.App. 3d Cir.1984), writ denied, 450 So.2d 969 (La.1984). A resort to personal experience goes beyond the proper scope of argument. State v. Barrow, 410 So.2d 1070 (La.1982), cert. denied, 459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982); State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987...