State v. Wientjes

Decision Date13 December 1976
Docket NumberNo. 58369,58369
Citation341 So.2d 390
PartiesSTATE of Louisiana v. Guy Michael WIENTJES, a/k/a Gary Wientjes.
CourtLouisiana Supreme Court

Ollie Bernard Boddie, Bossier City, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

On December 16, 1975, Guy Michael Wientjes, a/k/a Gary Wientjes, was indicted for distribution of methamphetamine as a person at least eighteen years of age to a person under eighteen years of age who was at least three years his junior, in violation of La. R.S. 40:968 and La. R.S. 40:981(C). Wientjes was convicted by a twelve member jury and sentenced to serve ten years at hard labor.

On appeal defendant relies on three of four assigned errors for reversal of his conviction and sentence. Assignment of error number three, having been neither briefed nor argued before this Court, is considered abandoned. State v. Phillips, 337 So.2d 1157 (La. 1976). Defendant in his brief attempts to raise additional grounds for relief not assigned as errors, contrary to the express requirements of Louisiana Code of Criminal Procedure Articles 844 and 920. These arguments, unaccompanied by proper assignments of error or errors discoverable by mere inspection of the pleadings and proceedings, will not be considered. State v. Williams, 325 So.2d 582 (La. 1976).

The charges against the defendant, and his subsequent conviction, were based on his sale, on September 28, 1975, of three grams of methamphetamine to Ms. Annette Waner, a minor. As part of an investigation of illicit drug distribution in the Shreveport area, conducted jointly by the Shreveport Police Department and the Louisiana State Police, undercover agents had arranged to purchase from Ms. Waner a quantity of methamphetamine. Ms. Waner, unaware that she was dealing with undercover police agents, was to buy the drugs from her supplier and in turn sell them to the agents at a profit.

After a series of telephone conversations between the agents and Ms. Waner, and between Ms. Waner and her supplier, later determined to be the defendant, it was agreed that the transactions would be consummated at approximately six p.m. on September 28, 1975, at Ms. Waner's place of employment, the Don Theater in downtown Shreveport.

Undercover agents stationed outside the theater observed the defendant's arrival at the theater at the appointed time. One of them, with the aid of binoculars witnessed the defendant exchange objects with Ms. Waner--the latter receiving the drugs and giving the defendant seventy five dollars. The exchange was also witnessed by an informant who was working with the police in the investigation. In addition to the testimony of several agents, identifying the defendant and describing their observations of the transaction, Ms. Waner testified that the defendant sold to her three grams of methamphetamine on the evening of September 28, 1975.

ASSIGNMENT OF ERROR NO. 1

After recordation of the verdict of guilty, defendant filed a motion in arrest of judgment alleging that the offense charged in the indictment was not punishable under a valid statute, in that La. R.S. 40:981(C) does not define an offense, but rather provides for the enhancement of punishment where certain controlled dangerous substances are distributed by a person at least eighteen years of age to a person under eighteen years of age and at least three years his junior. Defendant assigns as error the trial judge's denial of this motion.

Defendant was not prosecuted simply for having violated La. R.S. 40:981(C). The indictment also specifically cited La. R.S. 40:968 as having been violated by the defendant, and further alleged that the defendant, 'a person at least eighteen years of age, * * * Did knowingly and intentionally distribute * * * Methamphetamine, to a person under eighteen years of age who (was) at least, three years his junior, * * *.' (Emphasis supplied.)

Louisiana Code of Criminal Procedure Article 464, according to Comment (a) thereto, governs the nature and content of indictments charging violations of the state narcotics laws. It provides that an indictment

'* * * (S)hall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state * * * the official or customary citation of the statute which the defendant is alleged to have violated. * * *'

The indictment in the present case sufficiently complied with the requirements of this article, and it clearly charged the defendant with an offense punishable under a valid statute.

The trial judge's denial of the motion in arrest of judgment was correct. There is no merit in defendant's first assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in failing to grant his motion for a new trial insofar as it was based on the following claims:

1. The trial judge improperly admitted as evidence hearsay testimony by Annette Waner; and

2. The trial judge improperly admitted evidence alleged by the State to be methamphetamine for which a proper clain of custody was not established.

In his brief, defendant argues that Annette Waner, who purchased three grams of methamphetamine from the defendant on the evening of September 28, 1975, should not have been allowed to give hearsay testimony concerning alleged telephone conversations with the defendant under the res gestae exception to the hearsay ban, because the conversations occurred several hours prior to the transfer of the methamphetamine, and did not form, in connection with the crime, a single continuous transaction.

Ms. Waner, testifying in behalf of the State, explained that she had three telephone conversations with the accused during the afternoon of September 28, 1975. The first of these conversations occurred at approximately 12:30 p.m. Ms. Waner called the defendant and asked if he could supply her with three grams of methamphetamine. Wientjes asked Ms. Waner to call back later. She did, and was informed that he could deliver the drugs as requested as a price of twenty-five dollars per gram. Later that afternoon, after the undercover agents arrived at the theater to make the purchase from Ms. Waner, she again called the defendant, informing him that her 'connection' had arrived, that she had the money, and asking him to deliver the drugs.

At no time during the course of Ms. Waner's testimony did the defendant object to its admission on the basis of its hearsay character.

According to Louisiana Code of Criminal Procedure Article 841 '(a)n irregularity or error cannot be availed...

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19 cases
  • State v. Sonnier
    • United States
    • Louisiana Supreme Court
    • June 25, 1979
    ...to the jury regarding principals was neither briefed nor argued before this Court and, therefore, is considered abandoned. State v. Wientjes, 341 So.2d 390 (La.1976); State v. Phillips, 337 So.2d 1157 (La.1976); State v. Matthews, 292 So.2d 226 (La.1974). We have also carefully considered d......
  • State v. Lindsey
    • United States
    • Louisiana Supreme Court
    • September 8, 1981
    ...briefed nor argued are generally considered abandoned. State v. Sonnier, 379 So.2d 1336, on original hearing (La.1979); State v. Wientjes, 341 So.2d 390 (La.1976). However, in cases where the death penalty is imposed this Court reviews assignments of error not briefed as a matter of policy.......
  • State v. Passman
    • United States
    • Louisiana Supreme Court
    • April 11, 1977
    ... ...         In this appeal, defendant Glenn Apssman relies on twenty-nine of thirty-one assigned errors. Assignments numbers one and four, having been neither brief nor argued, are regarded as abandoned. State v. Wientjes, 341 So.2d 390, 391 (La.1976) ... ASSIGNMENT OF ERROR NO. 2 ...         During voir dire examination defense counsel asked prosepective juror Walter Foulks whether he would be able to consider defendant's guilt or innocence, without being influenced by whether the defendant took the ... ...
  • State v. Mullen
    • United States
    • Court of Appeal of Louisiana — District of US
    • December 21, 2018
    ...the right to confront witnesses against him. See State v. Trahan, 332 So.2d 218, 219-20 (La. 1976) ; see also State v. Wientjes, 341 So.2d 390, 393-94 (La. 1976). Here, however, the records were not certified by the custodian hospital. That lack of certification is not fatal to their ultima......
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