State ex rel. G.E.

94 So. 3d 863, 2011 La.App. 4 Cir. 1558, 2012 WL 1744176, 2012 La. App. LEXIS 674
CourtLouisiana Court of Appeal
DecidedMay 16, 2012
DocketNo. 2011-CA-1558
StatusPublished
Cited by6 cases

This text of 94 So. 3d 863 (State ex rel. G.E.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. G.E., 94 So. 3d 863, 2011 La.App. 4 Cir. 1558, 2012 WL 1744176, 2012 La. App. LEXIS 674 (La. Ct. App. 2012).

Opinion

MADELEINE M. LANDRIEU, Judge.

_JjOn September 1,- 2011, the trial court heard a motion to quash based on double jeopardy filed by the juvenile, G.E. The trial court denied the motion. Following trial on the merits on the same day, the juvenile was adjudicated delinquent on all four counts charged in the petition. The juvenile filed the instant appeal from the trial court’s denial of the motion to quash and from his adjudication of delinquency.

PROCEDURAL HISTORY

The juvenile was charged, by petition filed on June 1, 2011, with one count of distribution of marijuana, in violation of La. R.S. 40:966(A)(1); one count of distribution of cocaine, in violation of La. R.S. 40:967(A); one count of possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A)(2); and one count of possession with intent to distribute cocaine, in violation of La. R.S. 40:967(B)(4)(b). On August 31, 2011, the juvenile filed a motion to quash alleging that charging him with both distribution and possession with intent to distribute marijuana and cocaine constitutes double jeopardy. This motion was heard and denied on September 1, 2011. The court then proceeded to trial on the | ¿merits and adjudicated the juvenile delinquent on all counts. Thereafter, the juvenile timely filed the instant appeal.

STATEMENT OF FACTS

On May 20, 2011, Detective Derrick Burke, New Orleans Police Department (“NOPD”) Major Case Narcotics Unit, was conducting a “bust/buy” operation and made himself available to street-level drug dealers to purchase narcotics. The NOPD photocopied currency to keep track of the serial numbers and provided the currency to Det. Burke to facilitate a purchase during the operation. Det. Burke made contact with Daryl Martin1 and told Mr. Martin that he wanted to buy two “dimes,” or ten-dollar portions of crack cocaine. Mr. Martin got in Det. Burke’s vehicle and directed him to an abandoned residence at 4401 Thalia Street in New Orleans. From the vehicle, Det. Burke observed numerous males in the residence. . Mr. Martin entered the residence and then returned to the vehicle. Det. Burke gave Mr. Martin two of the photocopied bills, one twenty dollar bill and one ten dollar bill, and Mr. Martin gave Det. Burke two pieces of crack cocaine and a small bag of marijuana.2 Det. Burke drove away and Mr. Martin reentered the residence. Det. Burke alerted the “takedown” team who arrived on the scene approximately three minutes later.

The “takedown” team consisted of Detectives Chris Durning, Joseph Lainez and Andrew Roccafort. Det. Durning testified that as he entered the residence, he saw two individuals at a window and saw a bag thrown out of this window. Det. Durning collected the bag which contained thirteen individually packaged bags of marijuana. Det. Durning also testified that money was [866]*866retrieved from various ¡..¡occupants in the residence, including the juvenile G.E. He had all individuals sign receipts for the money collected from them.

Det. Lainez testified as to the state of the residence and that it appeared to have been abandoned for quite some time. There was no electricity or functioning bathroom in the residence. He testified that he recovered a piece of plastic, which contained twelve individually wrapped pieces of crack cocaine, from a hole in the floorboard in the residence. Det. Lainez further testified that he observed the juvenile in close proximity to the location from which he recovered the crack cocaine.

Det. Roccafort testified that upon entering the residence, he observed four individuals and one table — which had a milk crate, a five-gallon bucket, a box of sandwich bags, and a razor blade resting on it. He testified that during a search of the individuals, he recovered the money given to Mr. Martin by Det. Burke. He recovered the ten dollar bill from the juvenile and the twenty dollar bill from another individual.

ASSIGNMENTS OF ERROR

The juvenile asserts two assignments of error.

1. That the trial court erred in denying his motion to quash based on double jeopardy.
2. That the evidence presented at trial was insufficient to adjudicate the juvenile delinquent on the charges.

DISCUSSION

In the instant case, the juvenile is charged with both distribution and possession with intent to distribute marijuana and cocaine. The juvenile asserts that distribution and possession with intent to distribute are essentially subsections |4of the same crime. Therefore, he alleges that charging him with both crimes constitutes double jeopardy. He further asserts that the state failed to prove that he was a principal to the charges pursuant to La. R.S. 14:24.

DOUBLE JEOPARDY

Under La.C.Cr.P. Art. 596,

Double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

A defendant has a right not to be twice placed in jeopardy for the same offense. U.S. Const. Amend.. V; La. Const. Art. I, Sec. 15. In order to determine whether or not a double jeopardy violation has occurred, Louisiana courts recognize both the “same elements” test, Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1982), and the “same evidence” test, State v. Baptiste, 99-0288, p. 2 (La.App. 4 Cir. 3/29/00), 759 So.2d 173, 175.

(3) The Blockburger test requires a comparison of the elements of the statutes under which a defendant is charged. In Blockburger, the Supreme Court stated that “[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) See, Gavieres v. United States, 220 U.S. [867]*867338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911). The Blockburger court held that two statutes could be violated by one act. The juvenile’s argument that distribution and possession with [fiintent to distribute contain the same elements and therefore constitute double jeopardy is without merit. In the instant case, the charges of distribution and possession with intent to distribute stem from different acts or transactions. The charges of distribution of cocaine and marijuana stem from the sale by Mr. Martin to Det. Burke. The charges of possession with intent to distribute cocaine and marijuana stem from the recovery of narcotics in the abandoned residence.

In Baptiste, this Court held that charging a defendant with both possession of a narcotic and distribution of that same narcotic does not constitute double jeopardy where the defendant commits two separate and distinct acts. Id. at 175. In

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Bluebook (online)
94 So. 3d 863, 2011 La.App. 4 Cir. 1558, 2012 WL 1744176, 2012 La. App. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ge-lactapp-2012.