Earl Spencer and James Johnson were separately indicted by the grand jury
ASSIGNMENT OF ERROR NO. 1
(Spencer and Johnson)
Defendants contend the trial judge erred in denying their joint motion to suppress physical evidence on the ground that the evidence was obtained as a result of an unconstitutional search and seizure.
We have reviewed the record and find that the trial judge accurately set forth in his per curiam comments the facts as they relate to the search and seizure. Accordingly, we adopt the following statement of facts as our own:
It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable under the fourth amendment, subject only to a few specifically established and well delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 93, 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Gordon, 332 So.2d 262 (La. 1976). One of these exceptions to the warrant requirement is the so-called "automobile exception." This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Gordon, supra; State v. Tant, 287 So.2d 458 (La.1974); State v. McQueen, 278 So.2d 114 (La.1973).
In the instant case the officers clearly had probable cause to believe that the two trucks contained contraband which they were entitled to seize. The officers had received information from a reliable informant, who had previously furnished information leading to arrests, that certain individuals, three of whom were named, planned to bring into the United States by boat a large quantity of marijuana through the Port Fourchon area in the near future and thereafter to load the shipment into large trucks for transportation. The informant also related that the vessel YUCATAN would be used in the operation. This information triggered a three-to-four week investigation and surveillance. Specifically, officers observed one of the named suspects travel to New Orleans to secure two large trucks and later visit the YUCATAN a week or two before the incident at issue while it was docked at Port Fourchon. Additionally, the YUCATAN was observed shortly thereafter about fifty miles offshore from Port Fourchon in the Gulf of Mexico traveling in a southerly direction. On the afternoon of May 25, 1978, officers further observed the two trucks being brought into the area and towards evening they also noted an unusual amount of activity around the Lion's Den, owned by Jack Nichols, the person named by the informant as the leader of the smuggling operation. Finally, in the early morning hours of May 26, 1978, Officers Ward and Theriot, who were secreted in the immediate vicinity of the dock area, observed bales similar in size and configuration to bales of marijuana being unloaded from the YUCATAN and placed onto the two trucks previously identified. At this point, the informant's tip, concededly inadequate by itself to establish probable cause, was sufficiently corroborated to provide the officers' probable cause to search the trucks. Also, exigent circumstances existed at this point in time since it was clear that the departure of the trucks was imminent. Loading of the trucks had been completed and their engines were running. Hence, the officers acted properly in searching and seizing the contraband contained in the two trucks. Accordingly, the trial judge did not err in denying defendants' motion to suppress the evidence.
Assignment of Error No. 1 is without merit.
ASSIGNMENTS OF ERROR NOS. 5 AND 6
Defendant Johnson contends the trial judge erred in refusing to give to the jury two of his requested special charges.
The trial judge denied this requested special charge, stating that it was adequately covered by his general charge (Assignment of Error No. 5). Johnson also requested the trial judge to instruct the jury as follows:
The trial judge also denied this requested special charge on the basis that it was adequately covered by his general charge (Assignment of Error No. 6).
In the instant case, a review of the record clearly reveals that the requested special charges submitted by Johnson were substantially included in the trial judge's general charge. Accordingly, the trial judge did not err in denying the requested special charges.
Assignments of Error Nos. 5 and 6 are without merit.
ASSIGNMENT OF ERROR NO. 3
Defendant Johnson contends that the trial judge erred in denying his motion for a severance of his trial from that of his codefendants. He argues that the trial judge improperly ordered a consolidation of his indictment with other indictments without his consent.
The record reflects that some thirteen persons were charged in separate indictments in connection with the seizure of marijuana at Port Fourchon. Prior to trial, a joint motion to consolidate was filed by attorney Larry P. Boudreaux on behalf of all defendants, including defendant Johnson. The motion stated that the proposed consolidation was "for the purpose of all proceedings, including Motion to Reduce
At a hearing on the motion to sever, Mr. Boudreaux, as well as attorney C. J. Cheramie, testified. Their testimony established that they were retained prior to trial to represent all thirteen defendants for the purpose of applying for bail reduction and other preliminary matters. Mr. Boudreaux was retained as "trial attorney or lead counsel." The attorneys discussed with all defendants the possibility of consolidation, feeling that such would be the most expeditious way to proceed. Defendants were all apprised of the implications of consolidation, including the possibility that they would be tried together. The attorneys testified that, while defendants consented to the consolidation with the understanding of a possible joint trial, they were also informed of possible later developments resulting in separate trials.
Thus, under article 706, the effect of the consolidation is to place all subsequent proceedings under the procedure to be followed where the prosecution is under a single joint charge. State v. Darby, 310 So.2d 547 (La.1975). Accordingly, La.Code Crim.P. art. 704 dictates the appropriate procedure to be followed here. That article provides:
Thus, a defendant filing a motion for a severance must demonstrate that justice requires a severance of his charge from that of his codefendant. State v. Darby, supra.
In the instant case, the record clearly supports the trial court's finding that attorney Larry P. Boudreaux was authorized to file the motion to consolidate on behalf of the thirteen defendants involved in this matter, including defendant Johnson, and that he did so with Johnson's consent. Johnson presented no evidence to establish that justice required a severance of his trial from that of his codefendants. Hence, the trial judge did not err in denying his motion for a severance. In any event, the record reveals that Johnson, along with codefendant Joseph Fitch, were eventually tried separately from the other eleven defendants involved in this matter.
Assignment of Error No. 2 is without merit.
ASSIGNMENT OF ERROR NO. 2
Defendant Spencer contends the trial judge erred in imposing an excessive sentence.
The record reflects that Spencer was sentenced to serve ten years at hard labor and to pay a fine of fifteen thousand dollars, the maximum penalty for the crime charged. At the sentencing hearing, the following evidence of mitigating factors was presented and considered by the trial judge. Spencer, at the time of sentencing, was a forty-year-old diesel mechanic and a
La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge's reasons in imposing sentence, as required by La. Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvado, supra.
In the instant case, we have carefully reviewed the trial judge's reasons for sentencing, and conclude that he did not abuse his wide discretion in imposing the maximum penalty for the offense charged, particularly in view of the extremely large amount of contraband involved.
Assignment of Error No. 2 is without merit.
ASSIGNMENTS OF ERROR NOS. 3 AND 4
Defendant Spencer contends that the evidence presented by the state was insufficient to establish his guilt beyond a reasonable doubt. It is well settled that in a jury trial the proper procedural vehicle for preserving this issue for appellate review is a motion for a new trial. This was a jury trial. Spencer filed no motion for a new trial. Hence, this issue was not properly preserved for our review. State v. Sandifer, 359 So.2d 990 (La.1978); State v. Proctor, 354 So.2d 488 (La.1977); State v. Williams, 354 So.2d 152 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977).
In any event, this contention is without substance because the record reflects ample evidence to prove that Spencer was guilty of the crime charged. State witness Jerry Trent, one of the participants in the crime charged, identified Spencer as the driver of the larger truck involved in the smuggling scheme and further stated that Spencer had helped to load that truck with the bales of marijuana obtained from the vessel YUCATAN. Moreover, a customs officer and a state trooper testified that on the night of May 26, 1978 (date of incident), they stopped and detained three persons running away from the YUCATAN. Both officers identified Spencer as one of these three persons. Furthermore, the state trooper testified that at that time Spencer appeared to have been engaged in manual labor since he was in a "sweaty," "dishevelled," and "dirty" condition, "like he had been working."
ASSIGNMENTS OF ERROR NOS. 5 AND 6
Defendant Spencer contends the trial judge erred in refusing to permit him to cross-examine a state witness concerning the arrests and dismissals of charges against other persons allegedly involved in this matter and in refusing to allow him to comment on said dismissals during closing argument. He argues that evidence of these dismissals was relevant to his defense.
During cross-examination of Customs Patrol Officer Buddy Jack Harrison, defendant attempted to question the witness as to two other persons arrested along with Spencer. Defendant asked the witness whether he was aware that charges against Marandon Rousse had been dropped. The witness responded in the negative. He then asked the witness if he knew that Rousse had been arrested with Spencer. The state objected to any questioning concerning "what happened to the charges against other people" as being "inadmissible and irrelevant." The objection was overruled as coming too late. Defendant then asked the witness whether he knew if any charges had been brought against a Mr. Smith who had also been arrested. The witness again responded in the negative. The state objected on the same ground as previously. This time, the objection was sustained by the trial judge (Assignment of Error No. 5). During closing argument, defendant attempted to return to the subject of dismissals of charges against others, stating that "[a]pproximately fourteen or fifteen people were arrested at [the] scene. Several of those people, at least three, had no involvement whatsoever in the operation." State objected. Trial judge sustained the objection, stating that "there is no evidence in this record as to what has happened to any other people who were arrested and/or charged and nolle prossed. Further, I am not even sure that would be relevant to these proceedings anyway. We are here to try Mr. Spencer. We are not here to try other persons who may or may not have been convicted or charged" (Assignment of Error No. 6).
La.R.S. 15:435 requires that "[t]he evidence must be relevant to the material issue." La.R.S. 15:441 further provides that "[r]elevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent." We have held that the trial judge is vested with a wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978).
Finally, La.Code Crim.P. art. 774 provides in pertinent part that "[t]he argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case."
In the instant case, we conclude that the trial judge did not err in sustaining the state's objection to defense questioning designed to elicit evidence of the dismissal of charges against other persons. Evidence of the state's failure to prosecute other persons arrested along with Spencer, for whatever reason, has no bearing on whether or not defendant is guilty or innocent of the crime charged. Neither did the trial judge err in refusing to allow defense counsel to comment during his closing argument on said dismissals, since evidence of them was properly excluded during trial. See State v. Vaughn, 44 La.Ann. 814, 11 So. 40 (1892). Assignments of Error Nos. 5 and 6 are without merit.
For the reasons assigned, defendants' convictions and sentences are affirmed.