DRAKE, J.
The State charged the defendant, Justin Granger Smith, by bill of information with possession of methamphetamine, a violation of La. R.S. 40:967(C). Smith pled not guilty. Following a jury trial, a unanimous jury found Smith guilty as charged. The trial court sentenced Smith to five years imprisonment at hard labor. The State filed a habitual offender bill of information, alleging Smith was a fourth-felony habitual offender.
Christopher Comeaux, a narcotics detective with the St. Tammany Parish Sheriff's Office, received information from a source about Smith's involvement with possible illegal activity. On May 3, 2013, Det. Comeaux began surveillance in an unmarked police vehicle on a residence
During the surveillance, Joseph Rizzuto (unknown to the detectives) pulled into the driveway of the residence under surveillance in a red tow truck. Rizzuto went inside the residence and, a short time later. Smith and Rizzuto left the residence together in Rizzuto's vehicle. They drove past Det. Boynton and Det. Melendez's unit and stopped. Rizzuto and Smith exited their vehicle. Smith approached the driver's side of the unit to speak with Det. Boynton. Smith asked Det. Boynton what she was doing. To preserve her cover, Det. Boynton concocted a story about being there to look at the residence, which she thought was for sale. Smith and Rizzuto got in Rizzuto's vehicle and had just begun driving away when Det. Boynton contacted Det. Comeaux and told him that she smelled marijuana on Smith. Det. Comeaux told Det. Boynton to execute a stop of Rizzuto's vehicle. Det. Boynton drove her unit behind Rizzuto's vehicle, and activated the lights and sirens, but Rizzuto would not stop. Det. Comeaux then drove his unit in front of Rizzuto's vehicle to force Rizzuto to stop.
Just prior to the stop, Det. Comeaux saw Smith, who was on the passenger side, drinking out of a white Styrofoam cup in an erratic fashion. With the drink spilling from the cup onto Smith's face,
In his first assignment of error, Smith argues the trial court erred in partially denying his motion in limine. Specifically, Smith contends that the cup and coffee filter should not have been allowed into evidence because it was not more probable than not that all of this evidence was connected to this case.
Smith filed a pretrial motion in limine to exclude certain evidence at trial and any reference thereto, including the coffee filter. The trial court granted the motion in part, finding certain evidence inadmissible at trial. The trial court, however, denied the motion in part, finding that the coffee filter and testimony about the filter would be allowed at trial. In particular, the trial court noted, "[i]t's going to go to the jury and they will determine whatever weight they want to give and whatever explanations the detective can give and that's really part of the case."
Smith argues that the coffee filter should not have been allowed into evidence because Det. Comeaux did not indicate there was a coffee filter in the Styrofoam cup when he packaged the cup and filled out the information on the evidence label. Smith points out several other alleged "inadequacies" in the evidence. For example, Det. Comeaux seized the cup at 11 a.m.,
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. C.E. art. 901(A). With some exceptions, all relevant evidence is admissible at trial. La. C.E. art. 402. "Relevant evidence" is that which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Fruits and physical evidence of a crime as well as weapons used to commit a crime are relevant to show the commission of such crime and are therefore generally admissible at trial. State v. Foster, 263 La. 43, 267 So.2d 188 (La.1972) (per curiam) (decided under former version of the law). Relevant evidence may be excluded at trial if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
To be admitted at trial, demonstrative evidence must be identified. This identification can be visual, that is, by testimony at trial that the object exhibited is the one related to the case. Alternatively, the evidence can be identified by a chain of custody, that is, by establishing the custody of the object from the time it was seized until the time it was offered into evidence. In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected to the case. State v. Crochet, 96-1666 (La.App. 1 Cir. 5/9/97), 693 So.2d 1300, 1305, writ denied, 97-1547 (La. 11/21/97), 703 So.2d 1305. See State v. Sweeney, 443 So.2d 522, 528 (La.1983).
In the instant matter, the State laid the proper foundation before the trial court allowed State's Exhibit 1 (labeled as Exhibit N-1 by the crime lab), the white Styrofoam cup with the coffee filter, to be admitted into evidence.
Det. Comeaux testified at trial that Deputy Graham contacted him after she got the cup to analyze. She informed the detective that a coffee filter was in the cup; since the detective had not included a description of the coffee filter on the evidence label, the deputy asked him if he wanted her to also analyze the filter. The detective informed her that he wanted her to analyze both the cup and the filter. Det. Comeaux explained at trial that he did not see the coffee filter in the cup when he packaged it at the scene. According to the detective, when he removed the cup from the truck, the cup was about one-quarter full of red liquid. The detective observed green gleanings around the inside of the cup that appeared to be marijuana. Since liquids are not sent to the crime lab for testing, Det. Comeaux obtained a brown bag from his unit, placed it on top of the cup, and filtered the red liquid through the cup onto the ground; his intent was to remove the liquid, but keep the marijuana gleanings inside the cup. When the red drink finished draining, Det. Comeaux took the brown bag off the top of the cup and, without looking into the cup, placed the cup into an evidence bag and sealed it. The detective further explained at trial that it did not surprise him that the filter had methamphetamine on it since coffee filters are used in the production of methamphetamine. Det. Comeaux made clear that there was no chance that he, himself, had accidentally or mistakenly placed the coffee filter in the cup.
The trial court was persuaded as to the relevance of the coffee filter both by Det. Comeaux's testimony that the coffee filter was seized along with the cup at the crime scene, and that the coffee filter contained methamphetamine, the basis of the instant charge. As to any evidentiary "inadequacies" regarding the time the evidence was seized or the length of time it took the evidence to reach the crime lab, all of this information was placed before the jury to weigh the evidence. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Spradley, 97-2801 (La.App. 1 Cir. 11/6/98), 722 So.2d 63, 69, writ denied, 99-0125 (La. 6/25/99), 745 So.2d 625. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter for determination by the jury. State v. Patton, 2010-1841 (La.App. 1 Cir. 6/10/11), 68 So.3d 1209, 1222.
The coffee filter was clearly relevant as an item that proved Smith's possession of methamphetamine. The reddish color of the coffee filter, as pointed out by Deputy Graham in both her trial testimony and crime lab report, indicates the filter was inside the cup that contained red drink at the time it was seized. As such, it was clearly more probable than not connected to the case. The trial court, therefore, correctly allowed the coffee filter exhibit to be introduced into evidence and shown to the jury. See Crochet, 693 So.2d at 1305.
Based on the foregoing, the trial court did not err in its partial denial of the defendant's motion in limine. This assignment of error is without merit.
In his second assignment of error, Smith argues that his sentence was excessive. Specifically, Smith contends that, while his twenty-year sentence is the statutory minimum for a fourth-felony habitual offender, a downward departure from this sentence is appropriate because a twenty-year sentence is equivalent to a life sentence in this case.
The defendant in the instant matter was adjudicated a fourth-felony habitual offender. Pursuant to La. R.S. 15:529.1(A)(4)(a), the trial court imposed the minimum sentence of twenty years.
In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences under the Habitual Offender Law.
A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676.
During deliberations, the jury asked to see the cup and coffee filter. Smith contends that, given the conduct of the jury, it is apparent he was convicted of possession of methamphetamine residue found in the cup. (Defendant's brief at p. 7). Smith was not sentenced to twenty years for possession of methamphetamine. Rather, under the Habitual Offender Law, Smith, a recidivist with multiple felony convictions, is being punished for the instant crime in light of his continuing disregard for the laws of our state. See Johnson, 709 So.2d at 676-77.
There is nothing particularly unusual about Smith's circumstances that would justify a downward departure from the twenty-year sentence imposed under La. R.S. 15:529.1. We note as well there is nothing in the record that shows Smith's sentence was a product of vindictiveness by the State or the trial court. Smith has not proven by clear and convincing evidence that he is exceptional such that a twenty-year sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. The sentence is not unconstitutionally excessive. Accordingly, the trial court did not err in denying the motion to reconsider sentence. This assignment of error is without merit.
The trial court sentenced Smith, as a habitual offender, to twenty years imprisonment at hard labor without benefit of parole or suspension of sentence. The minute entry in the appellate record also indicates Smith's twenty-year sentence is "to be served without benefit of parole or suspension of sentence." Smith's sentencing exposure for the underlying crime of possession of methamphetamine was imprisonment, with or without hard labor, for not more than five years. See La. R.S. 40:967(C)(2). The sentence contains no parole restriction. Accordingly, Smith's enhanced sentence as a habitual offender should have been without probation or suspension of sentence, but should not have contained a parole restriction. See La. R.S. 15:529.1(A)(4)(a) and 15:529.1(G); see also State v. Bruins, 407 So.2d 685, 687 (La.1981). Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, La. C.Cr.P. art. 920(2) authorizes consideration of such an error on appeal. Further, La. C.Cr.P. art. 882(A) authorizes correction by the appellate court.