State v. Smith

The bill of information jointly charged the defendant Smith and his wife, Audrey, with willful and unlawful possession and control of a narcotic drug (heroin). La. R.S. 40:962 (1951). After a motion for severance was sustained, the defendant husband was tried separately. Pursuant to a jury verdict of guilty, he was sentenced to ten years in the state penitentiary.

The skeleton facts show:

Smith’s wife, Audrey, was handed some heroin. She then joined Smith at a barroom. The couple left and entered their automobile. Police officers tailed their vehicle and, when they parked, arrested the couple for possession of heroin. After they were arrested, the wife threw down the heroin. They were charged jointly with its possession.

Smith, the defendant husband, was found guilty of possession and control of heroin. The evidence shows that only the wife had physical possession of the narcotics. Nevertheless, the husband may be adjudged guilty because of his “constructive” or “joint” possession of the drug.

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also,- a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.

See: State v. Williams, 250 La. 64, 193 So.2d 787 (1967); State v. Bellam, 225 La. 445, 73 So.2d 311 (1954); State v. Gray, 221 La. 868, 60 So.2d 466 (1952); Annotation, Narcotic—Possession—What Constitutes, 91 A.L.R.2d 810 (1963); 25 Am.Jur. 2d “Drugs, Narcotics, and Poisons”, Section 21.

Since guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug, State v. Kreller, 255 La. 982, 233 So.2d 906 (1970), the theory of the State’s charge against the defendant husband is that he knowingly permitted his wife to acquire and possess the heroin for their joint benefit and subject to his control as well as hers.

The defendant’s appeal is based upon seven perfected bills of exception. For convenience of discussion, we will discuss the four principal grounds of error raised by these bills, rather than each bill separately.

I. Evidence Illegally Seized

The first ground urged (Bill of Exception No. 1) is that the trial court erred in denying a motion to suppress certain evidence (heroin) as illegally seized. The defendant Smith was convicted of possession of such heroin.

The basis of the motion to suppress is the alleged lack of probable cause for the initial arrest or detention of Smith and his wife by the police officers, following which the incriminating heroin was seized. A police officer testified that the wife, Audrey, had thrown it down immediately after she and the defendant Smith were detained by the police officers.

The defendant relies upon the principle that, when a suspect “abandons” property consequent to an illegal arrest, the property thrown away is considered inadmissible as the fruit of an illegal action. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970). Thus, the heroin in question may be inadmissible if there was no probable cause for the preceding arrest. Davis, Federal Searches and Seizures, Section 1.-511 (1964).

We find no merit to the bill. From the facts and circumstances within the officers’ knowledge, they had probable cause to arrest at least the wife, Audrey.

Two police officers observed her obtaining several glassine envelopes, in front of premises under surveillance for narcotics transactions. A few minutes before the Audrey Smith incident, the officers had observed a transaction whereby cash was exchanged for glassine envelopes from these premises. Because heroin is commonly transported in glassine envelopes, the officers believed they were witnessing narcotics transactions.

Audrey was observed obtaining glassine envelopes from a man who had first entered the suspect premises and then emerged with them. She went into a bar, came out of it with her husband, and both drove away.

By radio contact, the observing officers alerted their teammates, who were in an unmarked police car. The latter followed the Smiths and arrested them as they parked near their home several blocks away.

The team of police officers had Mrs. Smith under almost continuous observation immediately before, during and after the reasonably-presumed narcotics transaction, and up until she was informed she was under arrest at the time the car she was in was parked. The arresting officers had probable cause to believe that at least Mrs. Smith had unlawfully obtained possession of narcotics. See La.C.Cr.P. Art. 213; State v. Johnson, 249 La. 950, 192 So.2d 135 (1966) (test of probable cause or reasonable belief).

Consequently, the arrest of Mrs. Audrey Smith was lawful. The trial court properly received in evidence the heroin she threw to the ground following it.

We must note, however, that, in determining the arresting officers had probable cause, we have considered evidence properly admitted at the trial for other purposes, in addition to the evidence at the hearing on the motion to suppress. We have done so under authority of State v. Andrus, 250 La. 765, 199 So.2d 867 (1967), in the absence of a showing of prejudice to the accused or of the prosecution’s ill-practice through its failing to produce such evidence for the hearing on the motion to suppress.

II. Prejudicial Evidence Relating to Offenses of Third Persons

The Smiths were arrested as a result of two police officers observing Mrs. Smith acquire glassine envelopes containing heroin. The officers were hiding in a cemetery and watching a location across the street suspected of narcotics activity.

Some five-ten minutes before Mrs. Smith came on the scene, the officers observed Lloyd Kimbrough deliver some heroin (glassine envelopes) to James Sullivan and his female companion. Three bills were taken relative to the State’s use of this incident: Bill of Exception No. 2, to the district attorney describing the Kimbrough-Sullivan transaction as a preliminary to his proof; and Bills of Exception No. 3 and No. 4 to actual testimony of the Kimbrough-Sullivan transaction. The defendant made part of each bill the testimony objected to, the objection, the entire line of testimony relative to it, and the entire record.

The trial court held that the testimony was relevant to prove Lionel Smith’s intent and guilty knowledge. It relied on La.R.S. 15 :441: “Relevant evidence is that tending to show the commission of the offense and the intent * * *. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The ruling is correct. The defendant Smith is charged with constructive or joint possession of drugs actually in his wife’s physical custody. She had obtained them while out of his presence. Essential to proof of the case against him was evidence that he knew his wife had acquired the heroin and also that his wife had acquired such heroin for his use and control as well as hers. (The only defense made was through the wife’s testimony that she had acquired the drugs for her own use and had hidden the fact from her husband’s knowledge, since he, a former addict, wished her to break the addiction, too.)

The evidence of the Kimbrough-Sullivan transaction is relevant because of the husband’s incriminating (intendedly exculpatory) statement made at the time of his arrest: He told the officers that they had arrested him too soon and had no case, that he had paid Kimbrough $105.00 for drugs, but that Kimbrough had not given them to him yet. Tr. (Vol. 2) 87-88, 96, 106.

The defendant Smith is charged with constructive or joint possession of the drugs obtained by his wife from a man (Paul George) who came from an alleyway on Saratoga Street. The evidence that Kimbrough had delivered to Sullivan and his companion some drugs from the same alleyway some ten minutes earlier is relevant, in view of the defendant Smith’s admission he had paid Kimbrough money for drugs. It tends to show that Smith knew and participated in his wife’s obtaining possession and control of heroin from such alleyway.

III. Hearsay Evidence Improperly Admitted

In statements given to the arresting officers, Smith had implied that he had engaged in narcotics activities to assist Narcotics Officer Varnado. To dispel this notion, the prosecutor asked the arresting officer Taylor if he had conferred with Varnado (“Yes, sir, I did”), and, then, if as a result he (Taylor) had released the defendant.

Taylor answered, “No, sir, he hadn’t helped Varnado.” The defense objected to this testimony as hearsay, La.R.S. 15:463, and reserved a bill (No. 5).

This bill is without merit. The trial court immediately instructed the jury to disregard this gratuitous comment by the officer, not responsive to the question. Under the circumstances, no prejudicial error was sustained. State v. Arena, 254 La. 358, 223 So.2d 832 (1969).

Furthermore, immediately after this testimony, Officer Varnado was called to the stand and testified, without objection, that he had never requested Smith to purchase narcotics or to set up Kimbrough for arrest. We are unable to see how Officer Taylor’s comment that Smith had not helped Officer Varnado could be prejudicial, in view of the positive, unobjected-to, direct testimony from Varnado to the same effect.

IV. Defense Counsel’s Closing Arnument Improperly Curtailed

The final contention of error occurred in this setting:

The defendant’s wife, Audrey, testified that her husband had no knowledge of her acquiring the drugs in question, and that she had hidden from him that she was still addicted to the use of heroin. The prosecutor argued to the jury that, since the wife admitted she was shooting twelve papers of heroin a day into her veins, her husband should have known she was an addict.

In the defense’s closing argument, counsel attempted in rebuttal to argue that it is not obvious to another that a person is an addict until he has been using the drug for at least six months. The prosecutor objected that the defense counsel was testifying as an expert to matters outside the record.

The trial courr sustained the objection to this line of argument “as being outside the scope of the evidence and solely the opinion of counsel himself.” The defendant perfected Bill of Exception No. 8 to this ruling of the trial court.

The defendant points out that considerable latitude is to be allowed counsel in arguments before the jury, and that it is error to abridge the defendant’s right to be heard on all the facts and circumstances which are in evidence. 5 Wharton’s Criminal Law and Procedure, Section 2081 (1957). Further, if the defendant’s rebuttal argument was not founded in the evidence, neither, allegedly, was there any evidence to justify the prosecution’s argument, and thus justified was the retaliatory reply. State v. Borde, 209 La. 965, 25 So. 2d 736 (1946); Wharton, Section 2083.

Nevertheless, the trial court ruling is technically correct: There is no factual basis in the evidence for the defense counsel’s argument that signs of addiction do not become observable for six months (but there is at least some factual basis, based on presumed general knowledge, for the prosecutor’s argument that a husband should know of his wife’s addiction if she uses twelve “fixes” a day).

Broadly speaking, counsel must confine themselves in argument to the facts introduced in evidence, to matters of general or common knowledge, and to the fair and reasonable conclusions to be drawn therefrom. La.Code Crim.P. Art. 774; State v. Henry, 196 La. 217, 198 So. 910 (1940); State v. Seminary, 165 La. 67, 115 So. 370 (1928); Wharton, Section 2082; 6 Wigmore on Evidence, Section 1806 (3d ed., 1940); 23A C.J.S. Criminal Law § 1094; 53 Am.Jur. “Trial”, Section 480.

(9] We are unable to say that the trial court erred in curtailing defendant’s closing argument. There was no factual basis in the record for the assertions by counsel, which are not matters of common knowledge.

Decree

Accordingly, we affirm the conviction and sentence appealed from.

Affirmed.

BARHAM, J., dissents and will assign written reasons.

DjiXON, J., takes no part.

. The wife, Audrey, pleaded guilty prior to the defendant's trial and was sentenced to six years in the penitentiary. At the defendant’s trial she testified that she had possessed the heroin without her companion husband knowing it.

. Bills 6 and 7 of the original nine were abandoned.

. Bill 9, taken as to the District Court’s denial of a new trial, simply re-urges grounds raised by the other bills which are either rejected by us or else (Bill 6) formally abandoned by the defendant. The non-abandoned grounds of this bill will be disposed of by our discussion of the grounds raised by the other bills.

. The only bill perfected is as to the denial of the defendant’s original motion to suppress, after hearing on August 28, 1968. A supplemental motion to suppress was also filed January 28, 1969, alleging the same ground and further alleging that the defendants had not had a prior opportunity to present full evidence as to the illegal arrest. However, counsel submitted this February 10, 1969 on the face of the papers (apparently, the evidence introduced at the prior hearing), Tr. (Vol. 1) 95. The court overruled this motion to suppress, too, but no bill was perfected as to its denial. Although at oral argument counsel argued that his clients’ presentation of evidence at the hearing (August 28, 1968) on the original motion to suppress had been curtailed, the actual testimony at the hearing (Tr. Vol. 1, 96-110) shows this complaint to be ill-founded. Bill of Exception No. 1 itself recites that the “hearing was held and evidence taken”, without any contention that the defendant had been deprived of an opportunity to present full evidence.

. No restrictions were placed upon the defendants’ production of testimony at the hearing on the original motion to suppress. However, the prosecution failed to produce the probable-cause evidence, in deference to a mistaken ruling made by the trial court sua sponte. Upon hearing Mrs. Audrey Smith testify that no heroin had been found on or seized from her person, the court noted that there could be no “search” or “seizure” since the heroin taken by the officers was found abandoned on the ground. See State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). The court overlooked that property thrown to the ground may nevertheless be inadmissible as coerced by illegal police action. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970). The defendant made the entire record a part of each of his bills of exception, including the present (One).

. The argument objected to had commenced : “Gentlemen, after a period of time it takes usually about six months for a narcotics addict to hot hit euphoria as well it, or high — ”. The prosecutor’s objection to this line of argument was then sustained.