text:
    STATE of Louisiana v. Ivan GREEN.
    No. 2010-KA-0825.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Ivan Green, appeals his convictions and sentences for manslaughter and attempted manslaughter. After review of the record in light of the applicable law and arguments of the parties, we affirm.

Relevant Facts and Procedural History

On December 29, 2007, Clayton Johnson, Jr., was shot and killed in the 2900 block of Mansfield Street in the Algiers section of New Orleans. At the time of his death, Mr. Johnson was sitting with his sister and Green’s wife, Katrice Johnson Green, in her car. When the police arrived, Green admitted shooting Mr. Johnson and at his wife’s car, but insisted the shots were fired in self-defense. The only gun found at the scene belonged to Green.

On February 21, 2008, Green was charged by grand jury indictment with the second degree murder of his brother-in-law, Mr. Johnson, and the attempted second degree murder of Mrs. Green. He pleaded not guilty to both counts and, at the conclusion of his 5-day trial on January 24, 2009, was convicted by a twelve-person jury of the lesser charges of manslaughter and attempted manslaughter. Green was sentenced on November 6, 2009, to serve concurrent sentences of forty years at hard labor for manslaughter and fifteen years at hard labor for attempted manslaughter. He appeals both the convictions and sentences.

| ¡Assignment of Error 1

First, Green argues that the evidence is insufficient because the State failed to negate his claim beyond a reasonable doubt that the shootings were committed in self-defense.

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime were proved beyond a reasonable doubt. Manslaughter is defined in La.Rev.Stat. 14:31(1) as a homicide which would be first degree or second degree murder, but “is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” Provocation does not, however, reduce a homicide to manslaughter “if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.” La. Rev.Stat. 14:31(1).

A homicide is justifiable if “committed in self-defense by one who reasonably believes that he is in imminent danger of being killed or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(1). When a defendant claims self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Lynch, 436 So.2d 567 (La.1983).

The following evidence was adduced at trial.

Green admitted to the police that he shot Mr. Johnson and at his wife’s car and the only gun found at the scene belonged to him. The autopsy revealed Mr. Johnson’s blood alcohol level was .162 and that, at the time of his death, he had marijuana in his system.

IsFredriek Kron, an employee of Top Dollar Pawn Shop in Gretna, Louisiana, testified that on November 15, 2007, Green and his wife both pawned guns at his store and that on the day of the incident, December 29, 2007, Green redeemed his gun at approximately 3:20 p.m. Green did not appear to be intoxicated or upset when he redeemed the gun.

Detective Ryan Aucoin testified that he investigated the shooting that occurred in the 2900 block of Mansfield. He detailed the evidence that was gathered from the scene by crime lab personnel, including photographs of Mrs. Green’s car (found at the corner of Mansfield and Gen. Meyer Avenue) that sustained a bullet hole on the driver’s side rear door and window, with the bullet lodging in the driver’s seat.

Detective Mike McCleery testified that he was in charge of the murder investigation. In that capacity, he interviewed Green, Mrs. Green, Byron Allen, Raheim Allen, Orlando Hunt, and Gail Johnson, but not Mr. Johnson who died at the hospital before he had a chance to speak with him. Detective McCleery advised Green of his rights and Green indicated he understood his rights but waived them before giving a formal taped statement.

Green’s taped statement was played for the jury and a transcript is part of the record. In it, Green admitted that he shot the victim who he referred to as “Junior.” On the day of the incident, Green got off work, had a few beers, took a nap, and was in charge of his children while his wife was at work. Green drove them to his mother-in-law’s house on Mansfield, near the scene of the shooting. He conceded he did not have a good relationship with Mr. Johnson stemming from past altercations that including his brother-in-law’s burglary of Green’s mother’s house on Mansfield where Green’s sister lived. Nevertheless, Green and Mr. Johnson |4often talked and drank beer together, as they did on the day of the incident. After a few beers, Green left Mr. Johnson and headed towards his sister’s residence. Mrs. Green arrived in the area but left after Green assured her the children were with him. Green was annoyed because he had watched the children all day. Green parked in his sister’s driveway, but Mr. Johnson asked him to go to the store to buy more beer. Green agreed to do so, leaving his children with Mr. Johnson. Mrs. Green returned, however, and became angry when Green he told her the children were with her brother, Mr. Johnson. Because his car would not start, Green headed back down the street to his mother-in-law’s house. Mr. Johnson was walking in the street with Green’s children, further angering Mrs. Green, so Green walked over to get the children. As he neared them, Mr. Johnson joined in the argument Green was having with Mrs. Green, calling him names and warning him not to mess with his sister (Mrs. Green). Green and Mr. Johnson argued and Mrs. Green told Green that he was going to have to deal with her and her brother (Mr. Johnson). Green exchanged further words with Mr. Johnson and, walking back towards his car, Green warned Mr. Johnson not to follow him. Mr. Johnson kept coming toward him, however, as Mrs. Green drove slowly toward him. Warning Mr. Johnson not to come near him, Green went to his car and retrieved his gun from the trunk. Mr. Johnson kept walking toward Green, motioning like he had something under his shirt. Then, according to Green, Mr. Johnson rushed at Green and, in response, Green fired once at Mr. Johnson. At that point, Mrs. Green tried to back her car over Green and Green fired at her car.

Green claimed that Mr. Johnson had broken into Green’s mother’s house (where his sister lived) and that Mrs. Green was angry at him for refusing to drop the charges against Mr. Johnson. According to Green, Mr. Johnson had a February |ficourt date on the burglary charge and Mrs. Green had warned him not to go near Mr. Johnson because he had heard how Green had treated her while Mr. Johnson was in jail. Green claimed that Mrs. Green had twice pulled a gun on him, so they pawned their guns. A few weeks before the shooting, however, Green redeemed his gun after another altercation with Mrs. Green but soon pawned it again. Because Mrs. Green had threatened Green and encouraged others to threaten him as well, Green redeemed his gun on the afternoon of the shooting. Green insisted that Mrs. Green had a history of threatening, burning, and biting him and that he had twice reported her to the police. Because of the arguments, Green thought Mrs. Green had also redeemed her gun. In addition, a neighbor told Green that Mrs. Green had taken the keys out of his car while Green was inside his sister’s house.

Green also related a prior instance where Mr. Johnson had pulled a gun and threatened him at a family gathering. Green grabbed a sword to defend himself. Mr. Johnson grabbed a bunch of knives and forks, stabbed Green, and then bit Green. The incident ended when Mr. Johnson ran out of the house with the gun. Mr. Johnson’s (and Mrs. Green’s) family convinced Green not to call the police because Mr. Johnson was under the influence of drugs and, accordingly, Green did not report this incident to the police.

Sergeant Lawrence Gates testified that he was one of the first officers to arrive on the scene. He went to Mr. Johnson, who was unconscious and being held by his frantic mother, Green’s mother-in-law. She pointed to Green and told Sergeant Gates that Green shot her son. Green was standing nearby, holding onto a gun. Sergeant Gates drew his gun, pointed it at Green, and ordered him to drop the gun. Green did not comply immediately and Sergeant Gates repeated the order. | (¡Someone next to Green told him to drop the gun, hit his hand, and the gun fell to the ground. Sergeant Gates retrieved the gun, handcuffed Green, and put him in the back of his police car. EMS personnel were working on Mr. Johnson and Sergeant Gates saw no guns on Mr. Johnson or anyone else in the area. Sergeant Gates testified that Green admitted shooting Mr. Johnson, but insisted that he did not mean to kill him.

Sandra Allen lived two houses from where the shooting occurred. She testified that just before the shooting, she was standing at the door and saw Mrs. Green drive up to Green. The two of them talked, with Green holding onto the car. Suddenly, Mrs. Green stepped on the gas and Green fell to the ground. Mrs. Green drove away and Green got up and went across the street to his sister’s house. Ms. Allen watched as Mrs. Green drove back, searched her husband’s car, took his keys, and left. At that point, Ms. Allen went inside her house. She testified that by the time she made it to her den, she heard a shot. When she went back outside, she saw Mr. Johnson lying in the street and Green standing across the street with a gun in his hand. She called 911. Ms. Allen testified that she did not see Mrs. Green but the Green children were standing next to the street, so she brought them inside her house. She continued watching until the police arrived and did not see anyone approach Green or take anything from him.

On cross-examination, Ms. Allen elaborated on her testimony, stating that when Mrs. Green hit the gas, Green fell and flipped a few times on the ground. She explained that Green’s sister, Kimberly, and her husband, Orlando, were recent parents and lived across the street from her, while Mr. Johnson lived with his mother eight or nine houses down the block. She did not see Green arrive on the scene or Mrs. Green take keys out of the car parked in Green’s sister’s 17driveway. She heard only one shot and did not see anyone shoot at Mrs. Green’s car. Immediately after the shooting, Green stood on the sidewalk by his sister’s house and his children were sitting on the sidewalk across the street from where Green was standing. Mr. Johnson was lying in the street about two houses down.

Mrs. Green testified that on the morning of the shooting, she was at work at an assisted living facility in Algiers when Green pulled into the parking lot with their two young daughters in the back of the car. The girls were not properly dressed for the weather and Green had been drinking. Green told Mrs. Green he would be at her mother’s house when she got off work and then left. After work Mrs. Green went to her mother’s house and saw Mr. Johnson (her brother) and Green sitting in the front yard, drinking and joking. She drove the Green to a store and they argued about her ex-husband and his ex-wife. She then dropped Green off at his mother’s house, where his sister was living.

Mrs. Green then went home, took a shower, and changed clothes. Because Green still had not returned home with the children, she went back to her mother’s house. Green was gone, having left her daughters with her brother and his stepchildren. She left, but then decided to return and pick up her children. When Mrs. Green returned, her brother had taken her daughters to a store. She drove around looking for them and then returned to her mother’s house. Green was standing in the driveway of his sister’s house down the street and Mrs. Green drove there to argue with him about leaving their daughters with her brother. Green looked like he was going to come at her, so Mrs. Green started backing her car down the street to her mother’s house, rolled up the windows, and locked the doors. Green banged on the car and she left. As Mrs. Green was driving back towards her mother’s house, she saw Mr. Johnson walking down the street carrying Rone of her daughters and pushing the other in a stroller. She told Mr. Johnson to put the girls in her car or take them to their mother’s house because Green was acting strangely. At that moment, Green walked up, took their younger daughter out of Mr. Johnson’s arms and put her in his car. Mrs. Green drove slowly back to her mother’s house, talking with Mr. Johnson and heard Green, who was still near his car sitting in his sister’s driveway, state: “I’m gonna show you.” Mrs. Green looked in her rearview mirror and saw Green walking quickly toward them with a gun in his hand. She warned her brother that Green had a gun and Mr. Johnson turned around to face Green. Green walked up to Mr. Johnson and shot at him multiple times, hitting him with the third shot. Mrs. Green put her car in neutral, but Green began shooting at her, so she fled to her mother’s house. She told her mother, who had just arrived home, that Green shot her brother. Mrs. Green then ran back down the street, grabbed her girls, and took them to her uncle’s house. She called the police on the way to her uncle’s house and returned to the scene after the police left.

Mrs. Green insisted that her brother was walking with her and had his back to Green before Green came up and shot him. Although she saw Green go to his car just prior to the shooting, she did not see him go into the trunk to get the gun. She did not remember her brother carrying anything under his shirt and she did not see him with a weapon. She insisted that the only thing that Mr. Johnson said to Green was to ask him what was going on. She denied putting her car in reverse to hit Green.

Mrs. Green related that she and Green had been married for five years and had been together a few years before marriage. She described their relationship as abusive in that they fought and argued a lot, but admitted the fault was mutual. | nMrs. Green conceded that she had bitten Green once when he had her in a headlock and that she bought a gun not long after Green bought one. She also conceded that Green had called the police, accusing her of pulling a gun on him. She received a summons for this incident and, a few days later, they agreed to pawn their guns and did so at the store where they had purchased them. Mrs. Green did not redeem her gun and did not know that Green had redeemed his until she saw him shoot her brother and shoot at her.

Mrs. Green admitted that her brother had been in jail, accused of breaking into Green’s family home, having been so accused by Kimberly and Orlando Hunt, Green’s sister and brother-in-law. The charges had been dropped prior to Mr. Johnson’s death, however. While Mr. Johnson was incarcerated, Green would get drunk and threaten to kill him but he always apologized for these remarks when he was sober.

Mrs. Green recounted a prior incident involving a fight between Mr. Johnson and Green. They fought at her house and after Mr. Johnson went outside, Green grabbed a sword and chased him. She denied that her brother was armed at the time. She also described a prior incident during which she and Green were involved in a fight and Green grabbed a knife and tried to stab her in the forehead. In response, she threw a pot of hot beans at him. Green was arrested in connection with this incident. Mrs. Green denied ever hearing Mr. Johnson threaten Green.

On cross-examination, Mrs. Green explained that she did not like to leave her children with Mr. Johnson for very long because he had problems staying focused. She stated that just prior to the shooting, Green took her daughter from Mr. Johnson and put her in his car and she did not remember her getting out of the car. She acknowledged that she took Green’s keys out of his car but insisted that |10he saw her do so. Mrs. Green maintained that she did not know why her husband shot her brother.

On redirect, Mrs. Green explained that she took Green’s keys out of his car to keep him from driving because he was angry and intoxicated. She insisted that her brother had nothing in his hand and was walking away from Green when Green shot him. On re-cross, she stated that she was talking with her brother through the passenger window when she saw Green approaching in the rearview mirror. She screamed to her brother that Green had a gun, her brother turned, and Green shot him.

Sandra Johnson Fiffee, the mother of Mr. Johnson and Mrs. Green, testified that her son was twenty-two years old when he was killed. On the afternoon of the shooting, Mrs. Fiffee returned home sometime between 3:00 and 3:30 p.m. Soon thereafter, Mrs. Green came to her house and asked her to call 911 because she had been arguing with Green. Mrs. Fiffee refused, thinking that Green and her daughter had just had another argument. She testified that she had seen them near Green’s car when she first got home • and they appeared to be upset. When her daughter asked her to call the police, Green turned and walked back down the street.

Shortly thereafter, Mrs. Fiffee heard what she thought were three firecrackers and Mrs. Green came to her house to report the shooting. Mrs. Fiffee called 911 as she ran down the street to the scene of the shooting and found her Mr. Johnson lying in the street. She saw green standing on the sidewalk, holding a gun. He pointed it at her but then held the gun down to his side. Mrs. Fiffee told | n Green that he should have shot her instead of her son and, at this point, Kimberly and Orlando Hunt attacked her, telling her that Mr. Johnson had robbed them and should not have been in the vicinity of their house. Raheim Allen, a neighbor, intervened.

On cross-examination, Mrs. Fiffee denied doing anything to provoke the Hunts’ attack on her. She also denied taking anything from Mr. Johnson as he was lying in the street. She stated that she did not see Mr. Johnson with a gun at that time. She admitted that Mr. Johnson used marijuana and drank, but she did not know if he had used them that day. She also testified that Mr. Johnson was a slow learner.

Byron Allen testified that he lived with his mother, Sandra, at the time of the shooting. He testified that, just prior to the shooting, he walked back from the store with Mr. Johnson and then went inside his mother’s house and did not come back outside until the police arrived after the shooting. He saw Mrs. Fiffee at the scene, but he did not see her trying to remove anything from Mr. Johnson. He saw Ms. Fiffee and others fighting on the scene.

Raheim Allen, Byron’s brother, testified that he saw Green arguing with Mrs. Green before the shooting and that he saw Mrs. Green back up and knock down Green. After this, Green walked back down the street and Raheim went inside his house. He walked back outside and Green and Mr. Johnson arguing. Green set his daughter down in the grass near the street and Raheim picked up both girls and went to the Hunts’ house. He knocked twice and Orlando came to the door. He looked behind him, saw Mr. Johnson lying in the street, and called to his mother to call 911. He was outside when Mrs. Fiffee arrived and he did not see her remove anything from Mr. Johnson. Mrs. Fiffee and the Hunts became engaged in |12a fight and he broke it up. On cross-examination, Raheim Allen conceded he did not see the shooting because his back was to the street.

In addition to these witnesses, the State presented the testimony of the firearms examiner, a 911 supervisor, and a crime lab technician who retrieved the gun used in the shooting.

Green’s sister, Kimberly Hunt, testified on his behalf. She acknowledged living in her mother’s house across the street from the Allens and down the street from Mr. Johnson and Mrs. Fiffee. On the day of the shooting, Green came to her house to see her new baby, told her he had been in an argument, and said he was going home. Green did not appear to be intoxicated or angry when he left. Raheim Allen knocked at her door with Green’s daughter in his arms. She took the girl inside and then went outside with her husband, Orlando. Green was standing next to the street and his mother-in-law was running down the street. Mrs. Fiffee picked up her son and took from him a black object that looked like a gun. She told Mrs. Fiffee to put the object back and Mrs. Fiffee got up and asked if she wanted to shoot somebody. Mrs. Fiffee came at her and swung at her. Orlando jumped between them and pushed Mrs. Fiffee. While they were waiting for the police to arrive, Mrs. Hunt saw Mr. Johnson reaching toward Green and heard him say he was sorry. Green was still holding the gun at his side, and after the police arrived, he gave it to his cousin, who dropped it.

On cross-examination, Mrs. Hunt conceded that she did not see the shooting. She was unsure if she told the police that she saw Mrs. Fiffee take something from Mr. Johnson prior to their arrival, but noted that the officers who investigated the shooting told her that they would contact her later to take her statement, but failed to do so.

| is0rlando Hunt testified that on the day of the shooting, his brother-in-law (Green) came to see their new baby and told him that he had been arguing up the street with his wife (Mrs. Green) and brother-in-law (Mr. Johnson). Mr. Hunt saw Mrs. Green remove the keys from Green’s car and leave. He denied that Green was intoxicated or angry; rather, according to Mr. Hunt, Green just wanted to go home, but could not do so. Green went outside to check on his car and a minute later, Raheim Allen knocked on Mr. Hunt’s door and said that Mr. Johnson had been shot. Mr. Hunt went outside with his wife and saw Mr. Johnson lying on the ground with Green standing nearby. Mrs. Fiffee ran down the street and, picking up Mr. Johnson, removed a black object in his possession. At that point, Mrs. Hunt told Mrs. Fiffee to put the object back and Mrs. Fiffee tried to attack her. Mr. Hunt jumped between the two women and pushed Mrs. Fiffee away. Although the investigating officer told Mr. Hunt he would return to take his statement, he never did so.

Green testified on his own behalf, admitting that he shot Mr. Johnson and at his wife’s car, but insisting that he did so in self-defense. Green related that on the day of the shooting, he was on the way to visit his sister (Mrs. Hunt) but when he passed the house of his mother-in-law (Mrs. Fiffee), he saw his brother-in-law (Mr. Johnson) standing outside. Green’s daughter went inside Mrs. Hunt’s house while Green went to speak with Mr. Johnson about the family conflicts. At the end of the conversation, Green and Mr. Johnson had resolved the family issues and Mr. Johnson left in a car while Green remained outside talking with the Allen brothers. When Mr. Johnson returned home, one of Green’s daughters asked to go to her grandmother’s house so he took the girls down to Mrs. Fiffee’s house and, while his daughters went inside, Green stayed outside with Mr. Johnson, talking and 114drinking beer. Mrs. Green drove up and asked Green what he was doing at her mother’s house. Green insisted that, although he had earlier driven to Mrs. Green’s place of employment, they had not spoken and Mrs. Green’s testimony concerning his visit was not true. Green conceded that conflicts existed between the families, but insisted that this animosity was no reason for him to fight with Mr. Johnson. Green tried to tell Mrs. Green that he and Mr. Johnson had resolved their differences, but Mrs. Green just walked off. Green agreed to go to the store to buy more beer for Mr. Johnson and drove Mr. Johnson and his daughters to the store and then back to Mrs. Fiffee’s house where he left Mr. Johnson and the children.

Green knew Mrs. Green was going to return and, he admitted, drove to the pawn shop to redeem his gun. Green insisted that he was sober at the time and loaded the gun’s clip before he left the pawn shop. Green began to have car problems on the way back and, accordingly, parked his car in Mrs. Hunt’s driveway. He intended to ask Mr. Hunt to give him a ride to an auto parts store, but Mr. Hunt’s car was not working, so he decided to try to fix the car himself. When Mrs. Green pulled up asking where their daughters were, Green told her they were with Mr. Johnson. Green was leaning on Mrs. Green’s car as they talked so that when Mrs. Green pulled off, Green was dragged and then fell. Green got up and went inside Mrs. Hunt’s house. Green insisted that he did not know that Mrs. Green came back and took the keys from his car until Mr. Hunt told him.

Green went outside and saw Mrs. Green driving down the street toward Mrs. Fif-fee’s house so he flagged her down and told her to return his keys. Mrs. Green told him to come and get the keys. Accordingly, Green walked down the street to get the keys from Mrs. Green but, instead, she got into her car. Green asked her |1fifor his keys and she rolled up the window. They argued and Mrs. Green drove off. Green walked back toward Mrs. Hunt’s house and saw Mr. Johnson walking down the street, carrying a child. Mrs. Green returned, drove up to Mr. Johnson, and told Mr. Johnson not to let Green take her daughters. Mr. Johnson approached Green and accused him of messing with Mrs. Green. They argued, Green began walking back to Mrs. Hunt’s house, and Mr. Johnson followed him. Because Mrs. Hunt had just had a baby, Green walked to his car in her driveway rather than going into her house. Mrs. Green returned in her car, called Mr. Johnson over, and drove off after speaking with him. Mr. Johnson put down the child he was carrying, took off his jacket, and walked aggressively toward Green. Green turned to walk back toward his car and someone called his name. Green looked up and saw Mr. Johnson, who told him that he was going to kill him. Green told Mr. Johnson not to follow him, but Mr. Johnson repeated his threat to kill him. Mr. Johnson, wearing an oversized shirt, put his hand under his shirt as if he were armed and repeated his threat. Green began to run and Mr. Johnson taunted him that he would catch him. Green stopped at his car and opened the trunk. He warned Mr. Johnson to stay away from him, but Mr. Johnson kept coming at him. Green grabbed the gun and shot Mr. Johnson one time. Green insisted that he did not intend to kill Mr. Johnson. Mr. Johnson fell and then told Green he was sorry. Green also shot at Mrs. Green’s car.

Green related that Mr. Johnson often carried a gun and had pointed one at Green and Mrs. Green at Christmas in 2005 and, again, in July 2006. With respect to the 2006 incident, Green testified that they were at Mrs. Fiffee’s house and Mr. Johnson got mad at the family and drew a gun. The other family members ran inside and Mr. Johnson pointed the gun at him and fired, but the gun jammed. The |, fipolice were not called in connection with the incident. As for the 2005 incident, Green testified that Mr. Johnson was at Mrs. Fiffee’s house and became angry over the loss of some money. Mr. Johnson armed himself, grabbed his stepdaughter who he thought may have taken his money, and pointed the gun at her. Green stopped Mr. Johnson from going through the girl’s pockets and Mr. Johnson fled from the house, throwing Mrs. Green to the ground in the process. Green grabbed a sword and went after Mr. Johnson. When Green caught up with Mr. Johnson, he admitted that he had “done it again” and then ran off.

According to Green, Mr. Johnson had a drug problem, frequently using marijuana and Ecstasy and stealing Mrs. Fiffee’s pain medication. Green also claimed that Mr. Johnson had mental problems and that he once took Mr. Johnson to Meadow-crest Hospital for treatment to keep him from going to jail. Because of these prior incidents, on the day of the shooting Green believed that Mr. Johnson was going to kill him. Green reiterated that he did not intend to kill Mr. Johnson but that he was unpredictable, nice one minute and violent the next. According to Green, Mrs. Green’s family attempted to get him to drop the charges against Mr. Johnson in connection with the burglary of Mrs. Hunt’s home but he refused to do so because he thought Mr. Johnson would just do it again. Green conceded he did not know whether Mr. Johnson had a gun when he advanced towards Green, but insisted that Mr. Johnson put his hand under his shirt in a threatening manner. After Green shot Mr. Johnson, Mrs. Green backed her car directly at Green so he fired at her car. Mrs. Green ducked down as if looking for something and Green told her to leave.

117On cross-examination, Green reiterated that Mr. Johnson had one hand under his shirt and was pointing his other at Green as he walked towards him. Although he bought Mr. Johnson two beers that day, Green insisted that this quantity was not enough to set Mr. Johnson off and maintained that Mr. Johnson first approached him that day to talk about the problems between the two families. Green corroborated Mrs. Green’s testimony that they pawned their guns after Green called the police when Mrs. Green pulled a gun on him. Green explained that he decided to redeem his gun on the day of the shooting because Mrs. Green had threatened him again. Green admitted that he was a little mad when he found out that Mrs. Green had taken his keys, but insisted that pulled his gun only because Mr. Johnson kept coming toward him and that he shot at Mrs. Green’s car because Mrs. Green was trying to back into him and grazed his leg. Green admitted telling the police that Mr. Hunt was outside at the time of the shooting, although Mr. Hunt denied being outside at that time. On redirect, Green admitted that he did not know for sure if Mr. Johnson had a gun and that he did not know if anyone removed Mr. Johnson’s gun from the scene. Green stated that he was on his own family’s property when he shot Mr. Johnson.

The defense recalled Mrs. Fiffee, who admitted that she took Mr. Johnson to see a psychiatrist many times. Mrs. Fiffee testified Mr. Johnson was diagnosed as paranoid and was prescribed Seroquel, but that he did not always take his prescribed medication. She admitted that Mr. Johnson had been hospitalized for mental problems at three different hospitals and had visited the psychiatrist within the three week period preceding his death. Mrs. Fiffee knew that Mr. Johnson used marijuana and hung around with people who took Ecstasy, so she figured he took that as well. In addition, Mr. Johnson took some of her Oxycontin. Mrs. Fiffee 11Rdenied any knowledge of the 2005 Christmas episode but testified that the 2006 incident, wherein Mr. Johnson threatened to beat Mrs. Fiffee’s ex-husband, resulted in one of Mr. Johnson’ hospitalizations. Mrs. Fiffee admitted that Green’s sister, Mrs. Hunt, dated Mr. Johnson while they were in high school.

On cross-examination, Mrs. Fiffee testified that the 2006 incident occurred when her ex-husband beat up Mr. Johnson and, in retaliation, Mr. Johnson pulled a gun on him. The police were called and, although they did not arrest Mr. Johnson (who had gotten rid of his gun before they arrived), they told her Mr. Johnson needed help. Accordingly, Mrs. Fiffee obtained commitment papers from the coroner’s office and the police took Mr. Johnson to the hospital. Mrs. Fiffee insisted that Mr. Johnson threw away his gun after the 2006 incident. Mrs. Fiffee conceded, however, that she committed Mr. Johnson after that incident because her ex-husband would not let Mr. Johnson return to the house unless he got some help.

On rebuttal, the State recalled Detective Aucoin, who testified that Green did not say anything about being injured. He also testified that Mr. Hunt did not mention that Mrs. Hunt was attacked by Mrs. Fif-fee. Detective Aucoin stated that no other crimes were reported in connection with the shooting. He admitted that he did not examine Green and was not present when any other officer asked Green whether he was injured.

The State also recalled Detective McCleery who testified that he spoke with Mr. and Mrs. Hunt a few weeks after the murder and neither mentioned that Mrs. Hunt had been attacked. Moreover, Detective McCleery did not receive any information about anything being removed from Mr. Johnson’s body. He denied telling either Mr. or Mrs. Hunt that he would return to take them statement, noting that they both told him that they were inside at the time of the shooting and did not 113see it. Detective McCleery testified that he took taped statements from the Green and Mrs. Green because Green was under arrest for the shooting and Mrs. Green was an eyewitness but he did not take taped statements from Mr. and Mrs. Hunt because they told him they did not see the shooting.

Viewing this evidence in the light most favorable to the prosecution, we find there is sufficient evidence to support Green’s convictions. The only evidence related to Mr. Johnson’s purported threatening behavior is Green’s testimony. Mrs. Green contradicted Green’s claims that Mr. Johnson’s actions were threatening or that Mr. Johnson had threatened Green with a gun in a prior incident. Mrs. Green testified that Mr. Johnson only asked Green “what was going on” and that she and Mr. Johnson returning to Mrs. Fiffee’s house when Mrs. Green looked in the rear-view mirror and saw Green approaching them with a gun. Mrs. Green testified that Mr. Johnson turned at her warning and Green shot him. Similarly, with regard to shooting at Mrs. Green’s car, the only testimony supporting Green’s claim of self-defense is that of Green. Raheim Allen testified that it appeared to him that Mrs. Green backed up her car into Green and knocked him down, but according to Mr. Allen, this occurred earlier in the afternoon and did not immediately precede the shooting. Moreover, Mr. Allen did not see the shooting and Mrs. Green denied that she tried to back into Green.

Thus, the jury apparently believed Mrs. Green’s testimony over that of Green. It is axiomatic that a fact finder’s credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence. See, e.g., State v. Johnson, 2009-0259 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, writ denied, 2009-2263 (La.4/16/10), 31 So.3d 1054. In this case, the jury’s finding is not contrary to the evidence and this assignment of error is without merit.

12nAssignment of Error 2

By his second assignment of error, Green contends that the trial court erred by imposing sentence without allowing him an opportunity to present any mitigating evidence or make any formal argument.

A reading of the transcript of the initial sentencing hearing held on September 11, 2010, hearing indicates that defense counsel was given the opportunity to present any evidence in mitigation. At that hearing, after Mrs. Fiffee testified, Green testified in his own behalf. Green reiterated his trial testimony as to the shooting and as to Mr. Johnson’s mental condition and propensity toward violence. The court cut off further testimony that merely mirrored what the defense presented at trial. Further, the court observed that Green’s testimony at the hearing showed Green had no remorse for the shootings. Defense counsel moved to recuse the court and the court denied the motion. Counsel then moved for time to take a writ and the court reset sentencing. Counsel did not file a writ on the recusal issue.

Contrary to Green’s assertion, the transcript of the November 9, 2008, sentencing shows that defense counsel was afforded an opportunity at that hearing to present any evidence or argument but he indicated he had nothing else to say. At the beginning of the hearing, defense counsel noted that at the previous sentencing hearing, the court heard testimony from Mrs. Fif-fee and from Green. Defense counsel noted that he then moved to recuse the court, and the court denied the motion. Defense counsel then stated: “So, we’re here. I have nothing further to say.” The court then summarized the contents of the pre-sentence investigation report and the trial testimony. The court set forth the sentencing range for each conviction, and at that point, defense counsel objected, indicating he wanted to | Mmake a statement. The court refused to allow defense counsel to interrupt and continued its extensive reasons for the sentence it then imposed. Defense counsel objected, noting that he was not “finished” with the sentencing hearing. The court responded by asking if counsel had prepared a motion for appeal. Counsel stated that he did not intend to file one until he had a sentencing hearing and a chance to argue on his client’s behalf. The court took a brief recess.

When court reconvened, defense counsel asserted that he had the right to argue to the court as to the appropriate sentences to be imposed. The court rejected this argument, noting that prior to summarizing the presentence report, he asked either side if it had anything else to present, and defense counsel stated that he did not have anything to submit. The court asked if counsel had any argument at that point as to a motion to reconsider sentence, and counsel declined to do so, asserting that he had been denied the right to argue. Defense counsel then accused the court of misstating the facts of the case and attempted to reiterate Green’s testimony. Defense counsel apparently became quite agitated, as the court asked him to quit yelling and pointing his finger. Defense counsel continued his summary of Green’s version of events and raised again a pretrial ruling concerning evidence of Mr. Johnson’s mental condition. The court finally advised counsel to make any further arguments in this vein on appeal and counsel stated: “I did not expect to get a fair hearing from this court.” The court declined to hear any further argument from defense counsel, indicating that it had heard enough of counsel’s insults.

Accordingly, a reading of the transcripts indicates that defense counsel was afforded the opportunity to present evidence and make argument prior to the court’s imposition of sentence and, indeed, that he called Green to the stand at the |22first hearing. Defense counsel explicitly indicated to the court at the second hearing that he had nothing else to say. After counsel objected that he was not afforded a chance to argue as to the length of the sentences, the court gave him the opportunity to argue as to a motion to reconsider sentence, but counsel refused to do so. Thus, at the first hearing, defense counsel was presented with and took the opportunity to present mitigating evidence. After the court imposed sentence at the second hearing, he was presented with the opportunity to make any argument for reconsideration of sentence. He chose not to do so. Therefore, counsel was not denied the opportunity to be heard, either before or after sentence was imposed, and this assignment of error has no merit.

Assignment of Error 3

By this assignment of error, Green contends that the trial court erred by instructing the jury that it could return a less than unanimous verdict to convict. If the court so charged the jury, this claim was not preserved for appeal as the transcript of the last day of trial indicates that there were no objections to the court’s instructions to the jury. See La.Code Crim. Proc. art. 801 (“A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error.”). In addition, the record is silent as to whether the jury’s verdict was not unanimous; neither the trial transcript nor the minute entry of that day of trial indicates the number of jurors who voted to convict the appellant. Moreover, even if the issue had been preserved, it has no merit. Pursuant to La.Code Crim. Proc. art. 782, a non-unanimous jury of ten to two is allowed in non-capital felony cases. See State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738 (finding this issue has no merit).

| ??,Pro Se Assignment of Error

By his sole pro se assignment of error, Green contends that his due process and equal protection rights have been violated by assertions made in the State’s brief. Specifically, Green notes that the State erroneously asserts that Green shot at Mr. Johnson multiple times, while Green’s testimony and that of others show that Green shot only once at Mr. Johnson. Green also points to the State’s assertion that Green had several beers prior to the shootings, while Green’s testimony shows that Green drank only one beer before the shooting.

With respect to the number of beers Green consumed prior to the shooting, in his statement given to the police on the evening of the shooting Green admitted that he had a few beers when he got off of work that morning; both Green and Mrs. Green testified that he was drinking with Mr. Johnson when Mrs. Green arrived at Mrs. Fiffee’s house that afternoon; and Green admitted that he went to the store to get more beer for Mr. Johnson. Thus, the State’s mention of several beers is its interpretation of the evidence introduced at trial.

Moreover, Green fails to show how these purported inaccuracies deprived him of his due process and equal protection rights. There is no indication, nor does Green allege, that the State presented either of these “false” statements to the jury; Green argues only about their inclusion in the State’s brief before this court, and the State’s allegation of the number of beers Green consumed or the number of times Green shot at Mr. Johnson and Mrs. Green is merely its interpretation of the evidence adduced at trial. This court has the benefit of the trial transcript and Green’s statement that was presented to the jury and upon which the jury based its verdicts and, accordingly, the State’s second-hand interpretation of the evidence |?4has no bearing on this court’s determination of the merits of the appeal. This assignment of error is without merit.

Error Patent Review

Finally, a review for errors patent reveals no error.

Conclusion

Green’s convictions and sentences are affirmed.

AFFIRMED.

      . Ms. Fiffee's name was spelled several different ways in the various transcripts in this record, but she spelled her last name Fiffee during a sentencing hearing.

      . At this point, the jury viewed Johnson’s medical records, including records from the Louisiana Department of Human Services and Ochsner/Meadowcrest, as well as Physician Emergency Certificates.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shane SANDER.
    No. 2010-KA-1640.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.
    Rehearing Denied July 22, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

_JjThe defendant-appellant seeks to have his guilty plea vacated on the grounds that the trial court’s judgment denying his motion to suppress the physical evidence was in error and must be reversed. For the reasons discussed below, we affirm the judgment of the trial court.

PROCEDURAL HISTORY OF CASE

On October 14, 2009, the State filed a bill of information charging the defendant with one count of possession of cocaine, a violation of La. R.S. 40:967. Because of problems serving the defendant, his arraignment did not occur until May 14, 2010, at which time he entered a not guilty plea. The court conducted the motion to suppress the evidence and preliminary hearing on July 27, 2010. After hearing testimony and argument, the court found probable cause to sustain the charge and denied the motion to suppress. The defendant objected and gave his notice of intent to seek writs. His writ application to this Court was denied in an unpublished writ disposition. State v. Sander, 2010-1211 (La.App. 4 Cir. 9/16/10).

|2Four days later, on September 20, 2010, the defendant entered a plea of guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thus reserving his right to seek appellate review of the trial court’s ruling on his motion to suppress. The court accepted the plea under La.C.Cr.P. art. 893 and deferred the imposition of sentence. The court placed the defendant on two years active probation and ordered him to pay $500.00 to the Judicial Expense Fund and $190.50 in court costs. The defendant filed a motion for appeal which the court granted. This appeal follows.

STATEMENT OF THE FACTS

Because the defendant entered a plea of guilty, no trial was held. The facts of the offense can be ascertained from the pretrial motion hearing transcript which is contained in the record. Because the circumstances surrounding the seizure of the evidence are pertinent to the assignment of error raised by the defendant, the evidence pertaining to the motion to suppress is included in this summary of the facts.

The sole witness at the motion hearing was Officer Ananin Mitchell, assigned to the Fifth District since December 2008, and a New Orleans police officer since August 2008. Officer Mitchell testified that on the date he arrested the defendant, he and his partner were on patrol in the area of St. Claude Avenue and Port Street in a marked police vehicle. The area was described by Officer Mitchell as “a known location for heavy drug trafficking, drug activity, and prostitution.” As the officers’ vehicle approached the intersection of St. Claude and Port, they saw a young black male on a bicycle approach an older white male, later identified as the defendant, who was in front of a store. Officer Mitchell stated that the two men “briefly made a hand gesture toward each other, as in a Rdrug transaction.” When the defendant and the young man with the bicycle saw the approaching marked police car, “they kind of went upon their ways in a brisk action.” Officer Mitchell described the hand gesture between the men as “a quick hand-to hand transaction like they were transferring something.” Based on the observations and knowledge of the area, Officer Mitchell and his partner decided to conduct “a suspicious persons check” of the two men.

The defendant and the other man were stopped and detained. Officer Mitchell frisked the men with negative results. Also, the officers ran the names of the suspects through the NCIC motions system, which again yielded negative results. At the time of the stop, the defendant placed an open pouch of Bugler tobacco on the hood of the police vehicle. At the conclusion of the warrant checks of the men, in preparation for allowing them to leave, Officer Mitchell picked up the Bugler package to return it to the defendant. As he did so, a white piece of paper dropped out of the package. On direct examination, Officer Mitchell testified that he “picked up the white piece of paper, because it was folded, to see [if] anything was inside of it. Upon handing it back to the defendant, I noticed it had two rock-like substances on the inside of it.” Based upon this observation, Officer Mitchell placed the defendant under arrest for possession of cocaine.

In additional direct testimony Officer Mitchell stated that, when the defendant and the younger man saw the police car, the defendant tried to walk inside the store on the corner. At the same time, the young male, who had gotten off his bicycle, “attempted to walk away from the individual [the defendant].” At |4the time of this incident, the defendant was carrying a clear plastic bag containing food in one of his hands.

During cross-examination, Officer Mitchell stated that he and his partner were on routine proactive patrol on the morning of the defendant’s arrest; they were not responding to a particular complaint. Officer Mitchell was driving the police car. At the time he saw the suspicious hand gesture between the defendant and the second man, Officer Mitchell estimated that he was between five and twelve feet from the two men. He stated further that both men were cooperative during the stop and frisk. They placed their hands on the police vehicle pursuant to a directive from Officer Mitchell; the defendant placed the “Bugler” pouch on the vehicle for the same reason. Because the men had no outstanding warrants and the frisks were negative, the officers were preparing to allow the men to leave when the white paper fell out of the “Bugler” pouch.

During redirect examination, the prosecutor asked Officer Mitchell if, when the white paper fell out of the pouch, he suspected that it contained contraband. Officer Mitchell replied that he did not suspect it was contraband, but that he thought “it was kind of odd to have a white piece of folded paper inside of a “Bugler” pack with nothing but tobacco inside of it.” Officer Mitchell did not explain how he knew that the only thing in the pouch was the paper and tobacco.

Following the redirect examination of Officer Mitchell, the court questioned him at some length regarding the incident. The court first asked if the officer had observed the defendant leave the corner store. Officer Mitchell said that he had not; instead the defendant had stated that he had come from the store, and he had a bag of hot food in his hand. The court then asked Officer Mitchell to show the action which appeared to be a “quick hand-to-hand transferring something.” |fiOfficer Mitchell testified that the male on the bicycle rode up; the defendant approached him; and then the cyclist appeared to use his right hand to give something to the defendant. The defendant “in a real quick motion” placed his hand in his right pocket. Officer Mitchell admitted that he could not see what was in their hands, and when he patted down the defendant, he found nothing in his pocket. At that point, Officer Mitchell explained that the defendant was taking the “Bugler” pouch out of his right pocket. The pouch was open.

At the very conclusion of the court’s questioning of the witness, the court asked Officer Mitchell whether, as he picked up the folded piece of paper which he described as printing paper, if he could “feel that there was something in it?” Officer Mitchell responded that he could feel something. When the court asked him what he felt, Officer Mitchell replied: “It felt rocky-like[,] and I opened it up to see what was inside of it[,] and that’s when I observed the two, rock-like substances on the inside of it.”

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In his sole assignment of error, the appellant argues that Officer Mitchell exceeded the scope of an investigatory stop when he opened the folded-up piece of paper to see what was inside. Thus, he contends, the evidence should have been suppressed by the trial court as there was no other basis to seize the evidence without a warrant. In particular, he argues that the “plain feel” exception to the warrant requirement does not apply in this case.

At the conclusion of Officer Mitchell’s testimony at the motion hearing, the defense counsel argued first that the initial stop of the defendant was not based on | nsufficient facts. Counsel then argued that the search of the folded-up piece of paper exceeded the scope of a frisk for weapons and that Officer Mitchell’s testimony failed to establish a justification for a frisk for weapons. In response, the State argued that the stop was justified given the nature of the area and the observations made by Officer Mitchell. The State further argued that Officer Mitchell was acting properly when he picked up the piece of paper to give it back to the defendant, and as he was doing this, he felt the rock-like substance. The State argued that the earlier observations of the defendant’s activity coupled with the rock-like feeling of the substance in the paper “renewed his earlier suspicion that there was a drug transaction that occurred.” Thus, according to the State, Officer Mitchell did not act improperly when he unfolded the paper to confirm his suspicion that crack cocaine was concealed inside.

After hearing these arguments, the trial court rejected the defense counsel’s contentions and explicitly accepted the State’s argument.

The threshold question to be decided is whether Officer Mitchell and his partner had reasonable suspicion to justify an investigatory stop of the defendant. The standard to determine whether a sufficient basis for a legal stop existed was set out in State v. Fearheiley, 08-0307, pp. 1-2 (La.4/18/08), 979 So.2d 487, 488:

While the police may not detain individuals on the basis of an “ ‘inchoate and unparticularized suspicion or “hunch,” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)), in determining whether reasonable suspicion exists to conduct an investigatory stop, ie., whether the police possessed the requisite “minimal level of objective justification,” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984), courts must take into account the totality of the circumstances in a process that allows the police “ ‘to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ ” State v. Johnson, 01-2081, p. 3, 815 So.2d 7809, 811 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)) (internal quotation marks and citations omitted).

An experienced police officer’s observation of hand movements consistent with a drug transaction, even if he cannot observe what was exchanged, may provide “the requisite minimal objective basis for an investigatory stop.” State v. Pratt, 08-1819, p. 2 (La.9/4/09), 16 So.3d 1163, 1165. Also, the reputation of an area is an articu-lable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion. State v. Temple, 02-1895, p. 5 (La.9/9/03), 854 So.2d 856, 860. Additionally, as stated in State v. Seltzer, 08-34, p. 8 (La.App. 5 Cir. 5/27/08), 986 So.2d 762, 767:

While an individual’s mere presence in a high-crime area alone is insufficient to justify an investigatory stop, his presence in a high-crime area coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop. [Citation omitted.]

See also State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49 and State v. Fortier, 99-0244 (La.App. 4 Cir. 1/26/00), 756 So.2d 455, in which officers on patrol saw the defendant straddling a bicycle, showing something in his hand to another man. When the officers approached, the other man quickly walked away, while the defendant reached down to his sock and then began to ride away. The officers stopped the defendant, frisked him, and found marijuana in his sock. This Court upheld the seizure of evidence.

Here, Officer Mitchell articulated sufficient facts which support his decision to conduct an investigatory stop of the defendant and the man who appeared to hand him drugs. The area was known for drug trafficking. Both the defendant and the cyclist, upon noticing the police car, immediately moved apart and appeared to attempt to avoid any contact with the approaching officers. The fact that the Isdefendant tried to enter a store from which he had recently come, and that the other man was prepared to abandon the bicycle he had been riding, certainly appeared suspicious. Finally, the defendant’s gesture toward his pocket immediately after contact with the other man’s hand was consistent with an attempt to conceal something.

Hence, there was sufficient basis for an investigatory stop.

If an officer stops a person pursuant to La.C.Cr.P. art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La. C.Cr.P. art. 215.1(B). In State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039, the court noted that a police officer’s authority to frisk a person stopped pursuant to La. C.Cr.P. art. 215.1(A) is subject to an objective standard on review:

An officer’s right to conduct a protective frisk is codified in La.Code Crim. Proc. art. 215.1(B), which provides that “[w]hen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” While it is true that an officer is never justified in conducting a pat-down for weapons unless the original investigatory stop itself was justified, a lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Hunter, 375 So.2d 99, 101 (La.1979). Even after a lawful investigatory stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger. La.Code Crim. Proc. art. 215.1(B); Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the reasonableness of a frisk is governed by an objective standard. State v. Dumas, 00-0862, pp. 2-3 (La.5/04/01), 786 So.2d 80, 81.
The officer’s suspicion that he is in danger is not reasonable unless the officer can point to particular facts which led him to believe that the individual was armed and dangerous. Hunter, 375 So.2d at 101. The officer need not establish that it was more probable than not that the detained individual was armed and dangerous. Rather, it is sufficient that the officer establish a “substantial possibility” of danger. Id. at 102. In determining the lawfulness of an officer’s frisk of a suspect, courts must give due weight, not to an officer’s “inchoate ^and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 892 U.S. at 21, 88 S.Ct. at 1880.

Sims, 02-2208, p. 6, 851 So.2d at 1043-44.

Here, Officer Mitchell did not testify to any particular facts which entered into his decision to conduct a frisk for weapons. This omission in part is understandable as no contraband or evidence was found during the frisk, and thus the State at the hearing did not question the officer about his reasons for conducting a frisk. In any event, whether or not Officer Mitchell frisked the defendant, he could legitimately ask the defendant to place the tobacco pouch on the police car during the pendency of the investigatory stop. By removing the pouch from the defendant’s physical possession, Officer Mitchell could be more confident that, if a weapon such as a razor blade was concealed inside, the defendant would not have access to it during the interview process. Also, directing the defendant to place the pouch on the police car placed no restriction effect on the defendant’s freedom to be left alone beyond that involved in the investigatory stop itself.

Relevant to this appeal is whether Officer Mitchell lawfully opened the folded-up paper that fell out of the tobacco pouch. The appellant argues that the officer’s testimony failed to demonstrate that the war-rantless search and seizure fell within the “plain feel” exception to the warrant requirement. Further, he contends that it was only due to Officer Mitchell’s handling of the tobacco pouch that the paper fell out of it. However, as discussed above, it was reasonable of the officer to have the defendant place the pouch on the vehicle during the pendency of the investigatory stop. According to his testimony, Officer Mitchell was in the process of returning the pouch to the defendant when the paper fell out; there was 110nothing in the testimony to indicate that the officer manipulated the pouch or intentionally caused its contents to fall out.

The “plain feel” exception to the warrant requirement was addressed by the Louisiana Supreme Court in State v. Boyer, 07-0476, p. 22 (La.10/16/07), 967 So.2d 458, 472:

In Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S.Ct. 2130, 2134, 124 L.Ed.2d 334 (1993), the Supreme Court addressed whether nonthreatening contraband detected through the sense of touch during a Terry patdown may be admitted into evidence. Analogizing to the “plain view” doctrine, which provides that if police are lawfully in a position to view an object and its incriminating character is immediately apparent they may seize it without a warrant, see, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990), the Dickerson Court held if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; its warrant-less seizure is justified by the same practical considerations that inhere in the plain-view context. Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2136-37.

As discussed above, Officer Mitchell was acting properly at the time he picked up the paper to hand it to the defendant at the conclusion of the investigatory stop. Officer Mitchell testified clearly during the court’s questioning that he could feel that there was something inside the paper which “felt rocky-like.” However, Officer Mitchell never testified specifically that it was immediately apparent to him that the contents were pieces of crack cocaine. Similarly, the jurisprudence relied upon by the appellant involved situations where the police officers could not articulate that the containers found in the defendants’ possession (film canisters, matchboxes, and cigarette packs) had contraband inside without opening the containers for further inspection. Nevertheless, in this case, Officer Mitchell stated that there was a “rocky-like” feel to the object or objects Ininside the small folded piece of paper; this is consistent with and suggests that the items were immediately apparent as pieces of crack cocaine, which are described as “rocks.”

The trial court clearly concluded that the officer did have probable cause to search the paper. Probable cause means “a fair probability that contraband ... will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Whether probable cause exists must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Fisher, 97-1133, p. 8 (La.9/9/98), 720 So.2d 1179, 1184, citing State v. Raheem, 464 So.2d 293, 296 (La.1985).

In this case, Officer Mitchell had reasonable suspicion to believe that the defendant had engaged in a drug transaction, considering the totality of the circumstances. The officer also observed the defendant immediately reach into his right pocket after the brief interaction with the man on the bicycle. The defendant pulled the “Bugler” pouch out of that pocket and had it in his hand when he was stopped. The pouch was open, and the piece of paper subsequently fell out of it. The contents of the piece of paper, which Officer Mitchell testified was an odd thing to have in a tobacco pouch, had a rocky feel. Taking all these facts together, Officer Mitchell had probable cause to believe that the defendant had just purchased crack cocaine wrapped in a bit of folded-up paper and had placed it in the tobacco pouch. After the paper accidentally fell out of the pouch and he felt the rock-like contents, Officer Mitchell had probable cause to open it.

It is well-settled that an appellate court should review a trial court ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 12(La.12/1/09), 25 So.3d 746, 751; State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262 (La.7/6/10), 45 So.3d 577.

A review of the entire hearing transcript supports the trial court’s conclusion that Officer Mitchell had not violated any constitutional restrictions against unreasonable searches and seizures. Thus, the evidence was lawfully seized and was not subject to suppression. The court’s ruling was not manifestly erroneous and will not be disturbed on appeal.

Because the trial court’s ruling on the motion to suppress was not erroneous, the defendant’s guilty plea is affirmed.

AFFIRMED

      . The Court found that the district court’s ruling was not an abuse of discretion;, nevertheless, the Court stated that, if the defendant were convicted, he could re-raise the issue on appeal.

      . Officer Mitchell slated that "Bugler” tobacco is placed "inside of reefer paper to smoke cigarettes.” "Bugler” is the particular brand name of the tobacco.