Opinion
No. 54691.
December 2, 1974.
APPEAL FROM 11TH JUDICIAL DISTRICT COURT, PARISH OF SABINE, STATE OF LOUISIANA, HONORABLE JOHN S. PICKETT, JR., J.
Hodge O'Neal, III, Godfrey O'Neal, Many, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Thomas A. Self, Dist. Atty., for plaintiff-appellee.
Defendant, Wayne Black, was tried and convicted of possession of marijuana. He was sentenced to serve six months in the parish jail. On defendant's motion, the trial court granted an appeal to this Court. Defendant relies on nineteen bills of exceptions to obtain a reversal of his conviction and sentence.
We note, sua sponte, that the bill of information charged defendant under La.R.S. 40:971(B) (Supp. 1973), as amended, (Supp. 1974), which generally prohibits the manufacture and distribution of unlawful drugs, rather than La.R.S. 40:966(C) (Supp. 1973), as amended, (Supp. 1974), which prohibits, inter alia, possession of marijuana. This is of no moment, as the bill of information details the nature of the charge in its recital that defendant ". . . did knowingly have in his possession a controlled dangerous substance, to-wit: marijuana . . . ." Thus, the defendant was fully informed of the nature and cause of the accusation against him. La.Const. art. 1, § 10.
At the outset, it must be noted that this Court is without appellate jurisdiction over this case since the sentence actually imposed does not exceed six months. La. Const. art. 7, § 10(5). However, under our general supervisory jurisdiction, we will treat this matter as a timely application for writs. State v. Duplantis, 296 So.2d 818 (La. 1974).
BILL OF EXCEPTIONS NO. 1
This bill was reserved to the trial judge's denial of defendant's motion to suppress evidence consisting of a marijuana cigarette, an alligator clip, and three "roaches," or marijuana cigarette butts, seized from defendant's person after his arrest.
Defendant contends that the evidence was obtained in an unlawful search and seizure and, thus, should have been excluded since: (1) the arrest was without probable cause; and (2) even if the arrest were considered lawful, the search was not "incident" thereto. The state urges that the arrest was made with probable cause and that the search was incident to the lawful arrest.
The circumstances of the arrest and search are not in dispute. The uncontradicted testimony of Mr. Otha B. Gregory, the arresting officer, at the hearing on the motion to suppress reveals that at approximately 11:30 p.m. on the evening in question Gregory, the Village Marshall of Pleasant Hill, Louisiana and Deputy Sheriff of Sabine Parish, received a telephone call from one identifying himself as Steve Abercrombie. The caller alleged that Wayne Black, the defendant, had sold him a marijuana cigarette. Gregory went to Abercrombie's home to verify the call, and Abercrombie gave him the cigarette that he alleged to be the object of the sale. Though he had never made a drug arrest, Gregory had seen confiscated marijuana before, and the cigarette tendered by Abercrombie was similar in appearance to the contraband he had previously seen.
Gregory and Abercrombie then went to a local cafe where Abercrombie alleged that the sale had earlier taken place. As Abercrombie emerged with the defendant and approached Gregory, he turned to defendant and said: "Wayne, Mr. Gregory wants to know something about that cigarette that you sold me." The defendant replied: "I didn't sell you no damn cigarette." When Gregory asked defendant to get into his car to discuss the matter, defendant bolted and ran. Gregory testified that he knew the defendant, and the defendant knew him as the Village Marshall. Gregory asked him to stop, gave chase unsuccessfully, and shot a pistol in the air. The defendant circled the block and returned to the cafe from the opposite direction, whereupon he was arrested and handcuffed by Gregory. Gregory then brought defendant to the Pleasant Hill jail, located in the City Hall, and called for sheriff's deputies from Many to transfer the prisoner to the Sabine Parish jail. Defendant remained in the Pleasant Hill jail between twenty minutes and an hour before being transported to Many.
The search in question occurred before defendant was taken from his confinement at Pleasant Hill to a patrol car, preparatory to his transfer to the parish prison. The defendant had been wearing an Air Force field jacket, which he had removed. According to the testimony of Wayne Turner, one of the deputies called by Gregory, the defendant was about to put on the jacket when it was decided to search the jacket for weapons. The marijuana and alligator clip were discovered in one of the jacket pockets. The deputies had been informed of all the circumstances that had previously transpired at the time of the search.
We must first determine whether the police office had probable cause to arrest defendant. Article 213 of the Code of Criminal Procedure provides in pertinent part:
A peace officer may, without a warrant, arrest a person when:
. . . . . .
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer
. . . . . .
We have often held that probable cause for a warrantless arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonable, trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested had committed a crime. State v. Wood, 262 La. 259, 263 So.2d 28 (1972); State v. Dell, 258 La. 1024, 249 So.2d 118 (1971). Compliance with these standards must be determined by the trial court from the facts and circumstances of the case.
The defendant contends that the information acted upon by Gregory was not reasonable and trustworthy because it was obtained from Abercrombie, whom Gregory knew to be inclined to wield a knife in frequent barroom altercations. However, Gregory is emphatic in his testimony at the hearing on the motion to suppress that, based upon his observation of Abercrombie over the years, the informant's proclivity towards violence in no way affected his truthfulness. As Gregory remarked in his testimony:
I got all the confidence in the world in Steve Abercrombie telling me the truth about this or anything — he might be a drinker and he might cut people, but as far as truthfulness I would almost guarantee it, and that is observation over the years.
Further, Abercrombie's allegation of defendant's unlawful activity was corroborated by his production of a cigarette appearing to Gregory to be marijuana, by defendant's presence at a cafe that Abercrombie alleged to be the place of sale, by Gregory's observation of defendant's "thick-tongued" speech and abnormal appearance upon emerging from the cafe, and by defendant's evasiveness and flight upon being asked questions about the marijuana. Thus, the facts and circumstances as they appeared to Gregory corroborated the information he had received from Abercrombie, authenticating its reliability. Therefore, we conclude that, since the events that preceded defendant's arrest justified a reasonable belief that defendant had committed the alleged offense, the officer had probable cause to arrest defendant without a warrant.
The question remains, however, whether the search made of defendant after his arrest, in which the marijuana was discovered and seized, was lawful. It is well settled that a search of the accused person and the area within his immediate control incident to a lawful arrest is a traditional exception to the warrant requirement of the fourth amendment. The rationale for this rule has long been to protect the arresting officers from hidden weapons and to prevent potential escape attempts, as well as to avoid the possible destruction of evidence by the arrestee.
Recently, the United States Supreme Court has announced that the mere fact of a custodial arrest of a suspect based upon probable cause provides a constitutional basis for a full search of an arrestee's person. United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L.Ed.2d 456 (1973).
It should be noted that these cases involved warrantless searches and seizures of heroin ( Robinson) and marijuana (Gustafson) from the arrestees' persons after lawful arrests for traffic violations based upon probable cause.
In United States v. Robinson, the Court stated:
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment. 414 U.S. at 235,94 S.Ct. at 477.
Under the authority of the above cited cases, the search made of defendant's field jacket was lawful. Obviously, the search of an arrestee's person incident to a lawful arrest included the search of defendant's field jacket for weapons that might be used to imperil the lives of the police officers transporting defendant to the parish prison as well as to attempt to escape. As stated in Robinson, it is the fact of the lawful arrest that established the authority to search. Thus, in the case of a lawful custodial arrest, as here, a full search of the defendant is not only an exception to the warrant requirement of the fourth amendment, but is also a "reasonable" search under that amendment. Thus, the trial court correctly denied the motion to suppress, and the bill is without merit.
BILL OF EXCEPTIONS NO. 2
This bill was reserved to the trial court's denial of defendant's motion to quash the bill of information. Defendant contends that the petit jury venire was improperly drawn, selected or constituted by systemically excluding women from service. Specifically, defendant attacks article 402 of the Code of Criminal Procedure as violating the equal protection and due process clauses of the United States Constitution by providing that women will not be selected for jury service unless they file a written declaration of their desire to serve. As will be seen below, defendant is without standing to challenge article 402 because he is not entitled to a jury trial for this misdemeanor charge of possession. Thus, the issue is not before us. Nevertheless, even if defendant were entitled to a jury trial, we have rejected this challenge before and would do so again. E. g., State v. Jack, 285 So.2d 204 (La. 1973). Thus, this bill is without merit.
BILL OF EXCEPTIONS NO. 3
The next specified error is the action of the trial court in holding the case over until after lunch on the assigned trial date. This was done at the state's request in order to allow travelling witnesses time to arrive. Defendant contends that this deprived him of his right to a speedy trial. This argument is specious on its face, and defendant offers no legal precedent to justify a ruling that a brief delay of several hours deprives a defendant of his right to a speedy trial. Therefore, this bill is without substance.
BILL OF EXCEPTIONS NOS. 4 AND 5
These bills arose in the following context. Defendant was charged by separate bills of information with possession and distribution of marijuana on February 17, 1973. With the consent of defense counsel, the two cases were consolidated for trial on the trial date set for the misdemeanor charge of possession. Since the trial date was ordinarily reserved for misdemeanors, which are tried by the judge alone, there was no jury present. Immediately after the first witness was sworn, defendant moved for a mistrial of both charges on the ground that the state was putting on witnesses in a jury case before the jury was selected. The court granted a mistrial only as it related to the felony charge of distribution since this charge was necessarily punishable at hard labor, requiring a jury trial under the Louisiana Constitution. La.Const. art. 7, § 41. However, he denied defendant's motion for a mistrial insofar as the misdemeanor charge of possession was concerned. Thereafter, he severed the charges and ordered defendant to trial on the misdemeanor charge of possession. It was to this latter action that Bills Nos. 4 and 5 were reserved.
Defendant contends that, in consolidating the two charges for trial, the state consented to a jury trial for the misdemeanor charge as well. Thus, it is urged that the trial court erred in not granting a mistrial on both charges. We do not agree. It can hardly be said that by consolidating the two charges for trial without a jury on a misdemeanor trial day, the state consented to try both cases before a jury. Thus, the bill lacks merit.
BILL OF EXCEPTIONS NO. 6
Defendant next contends that the trial court erred in allowing testimony of the alleged distribution of marijuana by defendant at his trial for possession. It is urged that this was highly prejudicial.
The sale constituted an event coterminous with defendant's possession and thus is admissible as res gestae. La.R.S. 15:448 (1950); State v. Richard, 245 La. 465, 158 So.2d 828 (1963). Moreover, even assuming that the testimony relating to the sale was inadmissible, there is no showing of prejudice. The trial judge had previously heard testimony of the sale at the hearing on the motion to suppress. Thus, he already had full knowledge of the alleged transaction. This bill is without merit.
BILL OF EXCEPTIONS NO. 7
Over defendant's objection, Officer Gregory was permitted to testify that he received a telephone call from Steve Abercrombie and that the call concerned the defendant. Defendant reserved this bill on the ground that Gregory's testimony identifying defendant as the subject of the conversation constituted inadmissible hearsay. We disagree. While an arresting officer may not testify about the circumstances or reliability of information that he received, he may testify that he made the arrest as a result of information received about the defendant. State v. Vassel, 285 So.2d 221 (La. 1973). The trial judge's ruling so limited Gregory's testimony and was legally correct. Thus, the bill is without merit.
BILL OF EXCEPTIONS NO. 8
This bill was reserved to the trial court's admitting the marijuana and alligator clip into evidence. Defendant contends that the chain of custody was not properly established. While the custody of the evidence perhaps left something to be desired, we are satisfied that a sufficient chain of custody was established to permit introduction of these exhibits. The law does not require that the evidence as to custody eliminate all possibility that the objects have been altered. To be admissible, it suffices if the objects introduced are shown to be reasonably connected with the defendant or the crime and have some relevancy that the trial judge considers sufficient to warrant their introduction into evidence. State v. Gladden, 260 La. 735, 257 So.2d 388 (1972), appeal dismissed, 410 U.S. 920, 93 S.Ct. 1377, 35 L.Ed.2d 581, (1973); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972). The trial judge's determination that the evidence was admissible was correct. Therefore, this bill is without merit.
BILL OF EXCEPTIONS NOS. 9 THROUGH 19
These remaining bills of exceptions were reserved to the trial court's repeated refusal to permit the defendant to present the testimony of four witnesses concerning Abercrombie's reputation for violence. Defendant alleges that his motive for fleeing the scene of his eventual arrest upon his initial encounter with Gregory was his fear of Abercrombie rather than his guilt and that the trial court's refusal to permit testimony to establish that his fear was genuine deprived him of his right to a fair trial.
The defendant was allowed, however, in his testimony to explain his reasons for running from the cafe. Further, defendant explained his peaceful submission to arrest on his return to the cafe as evidence of his innocence. The trial judge excluded the testimony of other witnesses on the ground that such testimony would only be speculative regarding defendant's state of mind and the circumstances of the alleged incident.
We find no error in the trial judge's rulings. The defendant was given a fair opportunity to explain the motive for his behavior. Exclusion of further speculative evidence on the issue was proper. Thus, the bill is without merit.
Since, as previously noted, we do not have appellate jurisdiction in this matter, we ex proprio motu dismiss this appeal and, for the reasons assigned, deny relator's application for writs.
BARHAM, J., concurs with reasons.
TATE, J., concurs and assigns reasons.
DIXON, J., dissents with reasons.
CALOGERO, J., dissents for the reasons assigned by DIXON, J.
While I am unable to subscribe to much of the language contained in the majority opinion, I concur in the affirmance of this defendant's conviction and sentence.
Bills of Exceptions Nos. 9 through 19 present palpable error. The defendant has attempted to rebut the presumption of guilty knowledge which arises when one flees from the scene of arrest. He stated that he fled not because he feared arrest for criminal activity but rather because he feared that he would be physically harmed by the informant. He alleged that this fear was based upon his knowledge that the informant had cut the throats of several people on prior occasions. The defendant had the right to support his defense and establish the state of mind that caused him to flee. The witnesses he produced would have testified, had they been permitted, that the informant had cut at least two people, and such evidence would have been admissible. However, a reading of the record can support a finding that the trial judge knew and believe that the informant, Abercrombie, was a dangerous man and that it therefore was unnecessary in a trial before the judge alone to present other evidence on the issue. I was at first inclined to dissent because, although this is a judge trial, another indictment which arises out of the same offense and which requires a trial by jury is pending against this defendant. I would certainly require reversal if this error occurred before a jury. However, for the reasons hereinafter assigned, I am now convinced that the defendant cannot be brought to trial on the second indictment. Consequently, we need not reach a contrary result since this is the only conviction of the defendant which could be valid as to this criminal behavior.
I note that under Bill of Exceptions No. 6 the majority approves the introduction of evidence of the defendant's distribution of marijuana as res gestae in this possession prosecution. The majority has stated: "The sale constituted an event coterminous with defendant's possession and thus is admissible as res gestae."
Therefore, since the distribution as to which evidence was received is the subject of a bill of information which the State may plan to use in further prosecution of this defendant, I feel compelled to state that I would view further prosecution of this defendant under the bill charging distribution as violative of the prohibition against double jeopardy contained in the Louisiana and United States Constitutions. The State presented evidence that the defendant in this case possessed marijuana which was distributed to their informant and that he also possessed some marijuana in the jacket he wore at the time of arrest immediately after the alleged act of distribution. We must consider that the possession of the marijuana which was distributed formed the basis upon which this conviction for possession rests.
La.C.Cr.P. art. 596 provides that double jeopardy exists:
"* * * in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial."
The majority of this Court has determined that possession of a controlled dangerous substance is a lesser and included grade of the crime of distribution. See State v. Stewart, 292 So.2d 677 (La. 1974). In the case of this defendant, the charge upon which a second trial would be based, that is, the charge of distribution, is a different grade of the same offense for which he was in jeopardy in the first trial for possession. This is so even though there was evidence of an independent possession, apart from that which was the subject of the distribution, because this Court cannot inquire into or discern the evidentiary basis for the trial court's judgment of conviction of this defendant.
I respectfully concur.
TATE, Justice (concurring).
I concur, but with great reservation as to the correctness of our ruling as to Bills 9-19.
I concur only because, in this trial before a judge alone, the trial judge's ruling might possibly be construed as being as to the effect that, even accepting as proven the proffered evidence as to Abercrombie's violent character, the trial judge (on the basis of the facts already in evidence) had concluded that such cumulative testimony as to bad character did not materially add to the reason for the defendant's flight from the arresting officer, under the evidence which seemed to prove the cause of the flight to be otherwise (as construed by the trial judge).
Nevertheless, if this had been a trial before a jury, the ruling would have been clearly erroneous.
If construed as does this concurring opinion, the trial court ruling in effect merely limited the introduction of cumulative testimony on an issue primarily to be determined.
I respectfully dissent from treatment of Bills of Exceptions Nos. 9-19 by the majority. These exceptions were reserved when the defense counsel attempted to introduce evidence to support defendant's explanation of why he fled the scene at the time of his arrest. The prosecutor was arguing that the evidence of flight was proof of the guilty knowledge of the defendant. In Louisiana a presumption of guilty knowledge arises upon proof of flight. State v. Nash, 169 La. 947, 126 So. 434 (1930). See: McCormack on Evidence, 2d ed., § 271 (1972).
There is no question that the defendant did in fact flee when he was about to be arrested. Defendant explained this fact by testifying that he was afraid of Steve Abercrombie (the informant) who accompanied Officer Gregory at the time of the arrest. The defense sought to support this story by showing that Steve Abercrombie was a violent man, having cut the throat of several people, and that the defendant was aware of this fact. The trial judge refused to admit this evidence stating that it was an attempt to prove the state of mind of the defendant. This ruling was incorrect. State v. Nash, supra; State v. Noble, 155 La. 843, 99 So. 619 (1924). Evidence of flight, when used to show guilty knowledge on the part of the defendant, is also evidence tending to prove the state of mind of the defendant. The State cannot create a rebuttable presumption and then deny the defendant the chance to rebut it. The trial judge allowed the introduction of the State's evidence to show the state of mind of the defendant and then denied the defendant the opportunity to introduce contrary evidence on his state of mind. The defendant cannot be denied the right to put on an affirmative defense. There is no contention that the presumption of guilty knowledge which arises from proof of flight is an irrebuttable presumption nor could it be so considered. R.S. 15:432 specifically allows the introduction of evidence to rebut a presumption. Since this was an important element of the case, the conviction and sentence should be set aside.