STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-952
STATE OF LOUISIANA
VERSUS
DAVID F. PITTMAN
********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 07-CR-2461 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Billy Howard Ezell, Judges.
REVERSED. JUDGMENT OF ACQUITTAL ORDERED.
J. Phillip Haney District Attorney – 16th Judicial District Court 300 Iberia Street - Suite 200 New Iberia, LA 70560 Telephone: (337) 369-4420 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Angela B. Odinet Assistant District Attorney – 16th Judicial District Court 307 Church Street St. Martinville, LA 70582 Telephone: (337) 394-2220 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Harry Daniels, III Daniels & Washington 830 Main Street Baton Rouge,, LA 70802 Telephone: (225) 346-6280 COUNSEL FOR: Defendant/Appellant - David F. Pittman David F. Pittman Avoyelles Correctional Center 1630 Prison Road Cottonport, LA 71327 COUNSEL FOR: Defendant/Appellant - David F. Pittman THIBODEAUX, Chief Judge.
David F. Pittman was charged with possession of marijuana with
intent to distribute, a violation of La.R.S. 40:966. He entered a plea of not guilty.
After a jury trial, Pittman was found guilty as charged and was
sentenced to thirty years at hard labor. Then, Pittman was adjudicated a sixth
offender and sentenced to forty-five years at hard labor. Pittman’s Motion to
Reconsider Sentence was denied. Because we find the evidence insufficient for the
conviction, we reverse and order the entry of a judgment of acquittal.
I.
ISSUE
We shall consider whether the evidence adduced at trial was sufficient
to support the conviction of possession of marijuana with intent to distribute where
some persons at Defendant’s residence received a UPS package from Texas
containing marijuana, where during the search of the residence police found
marijuana hidden in the bedrooms of the residence, and where at all relevant times
Defendant was working offshore.1
II.
FACTS
Officer Kevin Judice received a call from a detective with the
Houston Police Department. The detective informed Officer Judice that a
narcotics dog alerted on a package being shipped by UPS to Jose Lopez at 1008
Peggy Street in New Iberia. Officer Judice decided to do a controlled delivery of
the package. When the package arrived in Louisiana, a narcotics dog examined the
package and alerted the officers that narcotics were inside the package.
1 Because we reverse Pittman’s conviction, we do not consider whether Pittman’s sentence was excessive. A controlled delivery of the package was made to 1008 Peggy Street
on August 23, 2007. A female answered the door of the residence. The female
told the agent that Lopez lived there but was not home at that time. She then took
possession of the package and went back inside.
A search warrant was executed at the home approximately thirty
minutes to an hour after the controlled delivery. Dianne Butler, Anastasia Fuselier,
and Travon Walker were inside the residence. Pittman was not present at the
residence at that time.
The UPS package delivered that day had not been opened. During the
search of the residence, police found marijuana in four sealed cans in a child’s
bedroom. Police also found a mesh bag that contained numerous plastic bags of
marijuana under a dresser in the master bedroom.
Crack cocaine and a firearm were found inside the vehicle driven by
Walker. Walker was charged with possession of crack cocaine with intent to
distribute and possession of a firearm while in possession of a controlled
dangerous substance. Walker admitted to possession of these items.
Officer Judice testified that he did not believe police attempted to
locate Jose Lopez, the person to whom the UPS package was addressed.
On September 8, 2007, an informant told police Pittman was at the
residence. Police entered the residence to arrest Pittman. During the arrest,
Officer Judice told his deputies to look around to make sure there was nothing in
plain view. At that point, according to Officer Judice, Pittman stated: “[y]’all
done [sic] got all the dope, there is no dope here.”
The State presented evidence that Pittman’s driver’s license listed his
address as 1008 Peggy Street. An act of cash sale indicated Pittman owned the
residence at issue. Pittman also paid the property taxes between September 19,
2006, and August 21, 2009.
2 Documentation admitted into evidence showed Pittman started work
at Dynamic Industries on August 14, 2007, and worked on August 17, and 20
through 24, 2007. Defense counsel introduced a “time ticket” from Dynamic
Industries showing Pittman’s work hours from August 22 through 24, 2007. The
parties then entered into the following stipulation regarding the time tickets:
“these are the tickets for work performed by Mr. Pitman on an offshore rig for
those three days.”
A lab report indicated the four metal cans found in a child’s room
contained a total of 4,642 grams of marijuana, the bags found in the master
bedroom contained 827 grams of marijuana, and the UPS package contained 2,208
grams of marijuana.
III.
STANDARD OF REVIEW
There is sufficient evidence for conviction if the appellate court
determines that “the evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of fact that all of the
elements of the crime had been proved beyond a reasonable doubt.” State v.
Hobley, 98-2460, p. 33 (La. 12/15/99), 752 So.2d 771, 790, cert. denied, 531 U.S.
839, 121 S.Ct. 102 (2000). “This standard, now legislatively embodied in LSA-
C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its
own appreciation of the evidence for that of the fact finder. The appellate court
does not assess the credibility of witnesses or reweigh evidence.” State v. Hollier,
09-1084, p. 3 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 470, writ denied, 10-1037 (La.
12/10/10), 51 So.3d 722 (quoting State v. Brown, 42,188, 42,189, 42,190, p. 10
(La.App. 2 Cir. 9/26/07), 966 So.2d 727, 741, writ denied, 07-2199 (La. 4/18/08),
978 So.2d 347) (citations omitted).
3 IV.
LAW AND DISCUSSION
“In order to convict a defendant for possession of a CDS with the
intent to distribute pursuant to LSA-R.S. 40:967(A), the state must prove beyond a
reasonable doubt that the defendant knowingly and intentionally possessed the
CDS and that he did so with the intent to distribute it.” Hollier, 37 So.3d at 470
(quoting Brown, 966 So.2d at 742).
Possession of narcotic drugs can be established by actual physical possession or by constructive possession. A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each case. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs.
State v. Major, p. 6, 03-3522 (La. 12/1/04), 888 So.2d 798, 802 (citations omitted).
(A) UPS Package
Pittman contends he did not come into contact with the marijuana
delivered by agents to his address; thus, the State did not prove he constructively
possessed the marijuana contained in the UPS package while in Iberia Parish. In
support of his argument, Pittman cites State v. Carter, 07-1237 (La.App. 3 Cir.
4/9/08), 981 So.2d 734, writ denied, 08-1083 (La. 1/9/09), 998 So.2d 712.
4 In Carter, the defendant and several others went to Texas. In Texas
City, the defendant purchased bales of marijuana. The defendant had Trevor
Marshall drive the car that contained the marijuana. Marshall was stopped by
police in Beaumont, Texas, and the marijuana was seized. Marshall, along with
police, transported the marijuana to Opelousas and Alexandria, Louisiana. While
driving from Opelousas to Alexandria, Marshall called Elbert Sherman and told
him he had marijuana. Sherman and Oliver Deal eventually transferred the
marijuana from Marshall’s vehicle to that belonging to Deal. Based on these facts,
the defendant was convicted of possession of marijuana in an amount greater than
sixty pounds but less than two thousand pounds.
Quoting United States v. Singh, 811 F.2d 758, 761 (2nd Cir.), cert.
denied, 483 U.S. 1021, 107 S.Ct. 3264 (1987), this court reasoned:
[United States v.] DeBerry [487 F.2d 448 (2d Cir.1973),] teaches that in a typical “controlled delivery” case, the validity of the seizure is determined as of the time the drugs are first seized, not as of the time they are retaken. Having taken proper dominion over the drugs and kept them under close surveillance, the government is deemed to be in constructive possession of them, even though, for purposes of identification, they are delivered to another. Other Circuits are in accord. See, e.g., United States v. Bulgier, 618 F.2d 472, 478 (7th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 51 (1980); United States v. Andrews, 618 F.2d 646, 654 (10th Cir.), cert denied, 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d 26 (1980); United States v. Ford, 525 F.2d 1308, 1312-13 (10th Cir.1975); United States v. Issod, [508 F.2d 990, 993 (7th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975) ]; see also United States v. Emery, 541 F.2d 887, 890 (1st Cir.1976). This means, says the Supreme Court, that “[n]o protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal.” Illinois v. Andreas, [463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983) ].
Of course, in order for a controlled delivery to accomplish its intended purpose, there must be an
5 actual delivery to a defendant and sufficient exercise of dominion by him to demonstrate his participation in the unlawful importation of the narcotics in question.
Carter, 981 So.2d at 748.
This court found that once police seized the marijuana, police had
dominion and control over it. The defendant never had contact with Marshall or
the marijuana once the marijuana was transported to Louisiana; therefore, the
defendant never had dominion and control over the marijuana in Rapides Parish
and did not have possession of the marijuana in Rapides Parish. This court then
reversed the defendant’s conviction and sentence.
Here, Pittman was working on August 17, and 20 through 24, 2007.
Further, the State offered no evidence that he was in contact with anyone in the
residence after the package was delivered or in contact with the UPS package once
it was within the Louisiana border. The UPS package was seized by police in
Houston and forwarded to New Iberia. It was then delivered to Pittman’s
residence and subsequently seized by police. Based on this court’s ruling in
Carter, 981 So.2d 734, Pittman never actually or constructively possessed the
marijuana found in the UPS package.
(B) Drugs Found at the Residence
Pittman also contends the State did not prove he had possession of the
marijuana found in the bedrooms of his residence. He asserts there were no drugs
found in his possession, and the State presented no evidence that he exercised
dominion and control over any drugs.
In support of his argument, Pittman cites State v. Martin, 29,352
(La.App. 2 Cir. 5/13/97), 694 So.2d 1209. In Martin, a confidential informant
purchased two rocks of crack cocaine from 1121 Beverly Street in Bossier City
Louisiana. America Martin lived at that residence, and her boyfriend, Jonathan
6 Monroe, visited frequently. Two days after the purchase, police executed a search
warrant at the Beverly Street residence. When police arrived, approximately
fifteen people were at the residence. Police found drugs in several places at the
residence. Nevertheless, none of the drugs was found in plain view.
Police arrested Monroe at the scene. Martin was not at the residence
when the warrant was executed. She was arrested at the residence three days later.
Police found no drugs, drug paraphernalia, or buy money on her person or in her
residence at the time of her arrest.
On appeal, Martin asserted the evidence was insufficient to support
her conviction for possession of cocaine with intent to distribute. It its opinion, the
second circuit reversed her conviction, stating the following:
The only evidence presented at trial regarding America Martin established that she lived at 1121 Beverly. It is uncontroverted that Martin was not present the night of the search when fifteen other people were present at the residence. The record is devoid of any evidence tending to prove that the drugs were subject to Martin’s dominion and control, or that she had knowledge of their existence. When police arrested Martin several days after the raid they found no drugs, paraphernalia or evidence of recent drug use. Police failed to tie Martin to the drugs either temporally or spatially. Although Martin had complete access to the house, none of the drugs were [sic] found in plain view or in areas of the home under which she had complete control. There was no testimony that she knew anything about the drugs or had association with the drug culture. There was also no testimony that she was the person who sold drugs to the BCPD informant.
Id. at 1213-14.
In State v. Hodge, 00-515 (La.App. 4 Cir. 1/17/01), 781 So.2d 575,
writ denied, 01-432 (La. 1/25/02), 806 So.2d 666, the defendant was convicted of
attempted possession of marijuana after police executed a search warrant at her
residence and found a pound of marijuana in a clothes dryer in the backyard,
marijuana in the pockets of the jacket being worn by the defendant’s husband,
7 marijuana inside the pocket of a man’s jacket in a rear room of the building, and
marijuana in a carry bag owned by a white female who was on the premises.
In determining whether the defendant possessed the marijuana found
by police, the fourth circuit examined the following cases:
In State v. Martin, 98-1507 (La.App. 4 Cir. 4/5/00), [788] So.2d [1], 2000 WL 528072, the defendant was arrested after a police pursuit, during which he discarded two bags of cocaine. Later, police went to a residence, where the defendant’s wife answered the door. She gave consent to search the residence, and police found two bags of cocaine, currency, and drug paraphernalia there. There were men’s clothes in the residence, but no proof that the defendant resided there, such as mail addressed to him. For that reason, this court found the evidence insufficient to sustain the defendant-husband’s conviction for possession of the cocaine found in the residence. Implicit in the finding was that the evidence would have been sufficient to convict defendant for possession of that cocaine if there had been proof he resided there.
In State v. Maresco, 495 So.2d 311 (La.App. 4th Cir.1986), writ denied, 500 So.2d 419 (La.1987), police served a search warrant on an apartment where Lori Wermuth and her fiancé, Gary Weaver, resided. Wermuth was at work when the warrant was served, but Weaver and Steven Maresco were in the apartment. Police found seven pounds of marijuana packaged in large and small plastic bags in the kitchen and on the dining room table, and a vinyl bag inside of a closed trunk in the bedroom containing over six thousand Valium pills. A scale was also recovered, along with mail addressed to Wermuth. In affirming Wermuth’s conviction for possession with intent to distribute marijuana, this Court found that even though Wermuth was not home when the warrant was executed, the marijuana was seized in her apartment, and it was a reasonable conclusion that she exercised sufficient control over the marijuana. This Court also affirmed Wermuth’s conviction for attempted possession of the Valium pills, finding they had been in her constructive possession because they were found in her bedroom.
In State v. Hookfin, 601 So.2d 320 (La.App. 4th Cir.1991), [writ granted, cause remanded, 596 So.2d 536 (La.1992) to consider facial validity of La.R.S. 14:130.1,] this court found that the mere fact that the
8 defendant resided at the location where drugs were found did not in and of itself establish constructive possession. However, the fact of residence, coupled with an undercover police officers’ testimony that the defendant flushed cocaine down the toilet immediately before other officers arrived, was sufficient to establish that the defendant had dominion and control over other cocaine found in the kitchen of the residence. See also State v. Collins, 584 So.2d 356 (La.App. 4th Cir.1991) (being a resident of premises where drugs are found is not in and of itself sufficient to prove constructive possession).
In State v. Allen, 96-0138 (La.App. 4 Cir. 12/27/96), 686 So.2d 1017, police observed three brothers, Kenner, Ennis and Roosevelt Allen, at one time or another, all engage in apparent street drug sales. On one occasion Kenner reached into the trunk of a vehicle, later determined to belong to him, and retrieved small objects, which he then handed to Roosevelt. After the brothers were arrested, a search of the vehicle revealed heroin, cocaine, marijuana and syringes. Roosevelt and Ennis were tried and found guilty of possession of the cocaine found in Kenner’s vehicle. On appeal, this court held that the evidence was sufficient to establish that Roosevelt and Ennis were “runners” for their brother, Kenner, and both had dominion and control--constructive possession--over the cocaine found in Kenner’s vehicle.
In State v. Booth, 98-2065 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, a confidential informant purchased drugs from a female in the doorway of an apartment. A drug-detecting canine subsequently found twenty-seven foil packages of heroin inside of a wall-mounted heater in the apartment. Five additional foil packages of heroin, along with a syringe, were also found in a large felt hat on top of a curio cabinet. Both the heater and curio cabinet were located in the living room, where the defendant, a male, was seated when police entered. The defendant lived in the apartment, and the female was his fiancée. He claimed he did not know anything about the drugs, and said his fiancée did not live there, but was staying there only that one particular night. However, a letter was found in the apartment addressed to both. This court found the evidence sufficient to establish the defendant’s dominion and control over the heroin found in the apartment.
Hodge, 781 So.2d at 581-82.
9 The fourth circuit then found the evidence was insufficient to sustain
the defendant’s conviction for possession of marijuana found in the pockets of her
husband’s jacket, the jacket in the living area, or that found in the white female’s
bag. The court went on to find the defendant had to have known her husband was
selling marijuana from the residence. The court then stated the following:
However, it would be too speculative for any rational trier of fact to conclude that she knew of, or had dominion and control over, the marijuana inside of the unplugged dryer located in the cluttered backyard. The one-pound of marijuana found in the dryer was in a large bag, apparently in bulk form. There was no indication it had been packaged for retail sale in plastic bags such as those found in the kitchen. If the marijuana had been packaged, it might suggest that it had been brought inside of the building at some point, and would perhaps indicate that Mrs. Hodge would have known about it. As it is, if Roger Hodge was selling the marijuana, he could have recently brought this bag of marijuana onto the property and deposited it in the dryer, planning to package it later, all unbeknownst to Mrs. Hodge. This is all speculation. However, so is the conclusion that Allison Hodge had knowledge of and exercised dominion and control over the marijuana. “[T] he [sic] jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.”
Id. at 582 (quoting State v. Tong, 609 So.2d 822, 825 (La.1992)).
Here, Pittman was not at the residence when police entered the
residence with a search warrant and found marijuana. Thus, he was not in actual
possession of the marijuana found in the bedrooms by police. Factors to be
considered in determining whether Pittman exercised dominion and control
sufficient to constitute constructive possession of the marijuana include his
knowledge that drugs were in the area, his relationship with the person found to be
in actual possession, his access to the area where the drugs were found, evidence of
recent drug use, and his physical proximity to the drugs.
10 Knowledge
In its closing argument, the State maintained the marijuana found in
Pittman’s house was there before the UPS package was delivered to his house.
Yet, the State presented no evidence regarding when the marijuana found in the
bedrooms of the residence was placed there.
The only evidence the State offered to prove Pittman knew the
marijuana was in the bedrooms was Officer Judice’s testimony regarding Pittman’s
statement during his arrest that there were no drugs at the residence. Pittman’s
statement can be interpreted in several ways, including, but not limited to: (1) the
marijuana was located in the bedrooms of the residence prior to Pittman’s
reporting to work offshore, and he was aware of its presence; (2) he knew someone
was delivering or bringing marijuana to his residence either at his direction or that
of someone else’s, and it was brought to the residence and placed in the bedrooms
while he was working offshore; or, (3) he had no knowledge the marijuana was in
the bedrooms of his residence until after it had been seized by police, and the
occupants of the residence were arrested. Thus, the State’s proof of this factor is
unconvincing.
Relationship with Person in Possession
No one at the residence, when the search warrant was executed, was
in actual possession of the marijuana. Additionally, the State did not put on
testimony or evidence proving Pittman had a relationship with Fuselier, Butler, or
Walker, whether or not these individuals lived at the residence, and if they did not,
how long they had been at the residence on August 23, 2007.2
2 In its closing argument, the State asserted Fuselier was Pittman’s girlfriend, but there was no testimony presented to support this claim.
11 Access to Area & Proximity
Pittman had access to the area where drugs were found when he was
at the residence. Nevertheless, it was stipulated that Pittman was working offshore
August 22 through 24, 2007, and there was no evidence presented regarding when
the marijuana was placed in the bedrooms of the residence or by whom.
Recent Use
There was no testimony regarding Pittman’s recent drug use.
Based on these considerations, the State failed to prove beyond a
reasonable doubt that Pittman had constructive possession of the marijuana found
in the bedrooms of his residence. This conclusion is supported by the rulings
expressed in Martin, 694 So.2d 1209 and in Hodge, 781 So.2d 575, discussed
above.
RESPONSIVE VERDICTS
“[W]hen a court finds that the evidence was not sufficient to support a verdict for the crime charged, the discharge of the defendant is neither necessary nor proper when the evidence supports a conviction of a lesser and included offense which is a legislatively authorized responsive verdict.” State v. Wright, 36,635, p. 12 (La.App. 2 Cir. 3/7/03), 840 So.2d 1271, 1279.
State v. Hunter, 09-1487, p. 25 (La.App. 3 Cir. 6/2/10), 41 So.3d 546, 562.
The responsive verdicts for possession of marijuana with intent to
distribute are attempted possession of marijuana with intent to distribute,
possession of marijuana, attempted possession of marijuana, and not guilty.
La.Code Crim.P. art. 814(49).
Because the State cannot prove Pittman constructively possessed the
marijuana found in the UPS package and in the bedrooms of his residence, the
12 State cannot prove Pittman committed any of the responsive verdicts. Therefore,
Pittman’s conviction and sentence are reversed.
V.
CONCLUSION
For the reasons expressed above, David F. Pittman’s conviction and
sentence are reversed, and the entry of a judgment of acquittal is ordered.
REVERSED. JUDGMENT OF ACQUIT TAL ORDERED.