NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-1256
STATE OF LOUISIANA
VERSUS
FREDDIE LYNN LASSIEN
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 534-11 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and J. David Painter, Judges.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.
Edward K. Bauman Louisiana Appellate Project P. O. Box 1641 Lake Charles, LA 70602 (337) 491-0570 COUNSEL FOR DEFENDANT-APPELLANT: Freddie Lynn Lassien John F. DeRosier, District Attorney Carla S. Sigler, Assistant District Attorney Karen C. McLellan, Assistant District Attorney 901 Lakeshore Drive, Suite 800 Lake Charles, LA 70601 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana PAINTER, Judge.
Defendant, Freddie Lynn Lassien, appeals his convictions on five counts of
distribution of cocaine and the corresponding thirty-year sentences imposed for
each count. For the following reasons, we affirm his convictions. However, we
find that the record does not support the imposition of the maximum sentences and
order that the sentences be vacated and the matter remanded to the trial court for
resentencing. Furthermore, the trial court is ordered to inform Defendant of the
provisions of La.Code Crim.P. art. 930.8 at resentencing.
FACTS AND PROCEDURAL HISTORY
Defendant was charged with five counts of distribution of cocaine, violations
of La.R.S. 40:967, after he allegedly sold drugs to a confidential informant, Eura
Jones, on five occasions. Defendant entered a plea of not guilty. Following a jury
trial, Defendant was found guilty on all five counts. Defendant was sentenced to
serve thirty years at hard labor on each count. The sentences were to run
concurrently. A motion to reconsider sentence was filed and was denied after a
hearing.
Defendant is now before this court asserting three assignments of error: (1)
there was insufficient evidence to support his convictions for distribution of
cocaine; (2) he was denied effective assistance of trial counsel; and (3) the trial
court erred in imposing constitutionally excessive sentences. After a thorough
review of the record, we find that the evidence is sufficient to support Defendant‘s
convictions, that his claims of ineffective assistance concerning the testimony of
the crime lab employees are without merit, and that his claim of ineffective
assistance of counsel in regard to the failure to subpoena an alibi witness must be
relegated to post-conviction relief. However, Defendant‘s sentences must be
vacated because the record does not support the imposition of the maximum sentences and because the trial court did not articulate why this Defendant was the
worst offender or that he committed the most egregious offenses. Accordingly, the
matter is remanded to the trial court for resentencing. Furthermore, the trial court
is directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8.
DISCUSSION
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. We find that there is one error patent in that
the record does not indicate that the trial court advised Defendant of the
prescriptive period for filing post-conviction relief as required by La.Code Crim.P.
art. 930.8. Since we are remanding the matter for resentencing due to lack of
support in the record for the imposition of maximum sentences, the trial is hereby
directed to inform the Defendant of the provisions of article 930.8 at resentencing.
Sufficiency of the Evidence
In his first assignment of error, Defendant contends that there was
insufficient evidence to support his convictions for distribution of cocaine.
In considering the sufficiency of the evidence on review, an appellate court must consider whether, viewing the evidence in a light most favorable to the State, any rational trier of fact could have found proof, beyond a reasonable doubt, of all essential elements of the crime charged. State v. Leger, 05-11 (La.7/10/06), 936 So.2d 108 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Determinations regarding the weight of evidence are questions of fact and rest solely with the trier of fact who may accept or reject, in whole or in part, the testimony of the witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27. It is not the role of the appellate court to assess credibility or to re-weigh evidence. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19.
In this light, one witness‘s testimony, if accepted by the trier of fact, is sufficient for a requisite factual conclusion absent internal contradiction or irreconcilable conflict with physical evidence. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66. Further, in resolving the question of whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of 2 misidentification in order to sustain its burden of proof beyond a reasonable doubt. State v. Bright, 98-398 (La.4/11/00), 776 So.2d 1134.
State v. Prudhomme, 12-347, pp. 2-3 (La.App. 3 Cir. 11/7/12), 101 So.3d 565, 567-
68.
Detective Melanie Hinton was assigned to the drug task force in September
2009. Detective Hinton testified that Jones, who was working off drug charges,
participated in controlled buys on September 15, 16, 17, 18, and 23 of 2009 in
Vinton.1 Detective Hinton testified that Jones and the vehicle that he drove were
searched prior to and after each transaction and that no contraband or currency was
found. Police met with Jones after each of the five transactions, and Jones turned
over powder cocaine.
Detective Hinton testified that on September 15, 2009, Jones called someone
known as ―Old School‖ and set up a buy. Detective Hinton further testified that,
on that date, the seller drove a blue Jeep. On September 16, 17, and 18, 2009, the
seller drove a tan Chevrolet truck with Texas tags. Police ran the license plate
number and found that the vehicle was registered to Donald Anderson. Detective
Hinton testified that police did not attempt to locate Anderson. Detective Hinton
further testified that she did not observe the transactions that occurred on
September 15, 16, 17, and 18, 2009. Detective Hinton testified that on September
23, 2009, she observed Jones make contact with Defendant outside a tan truck.
The license plate on the truck matched that from the previous transactions.
However, Detective Hinton did not observe the transaction. Detective Hinton then
made an in-court identification of Defendant as the person she saw on that date.
1 Police attempted to videotape each transaction. However, there was nothing of evidentiary value on the video from September 15, 2009. Additionally, Defendant was not identified on any of the videos. 3 Detective Hinton testified that the phone number that Jones called to set up
all five buys was put through a law enforcement database and identified as a
number that had been used by Defendant. Detective Hinton subsequently
contacted Texas DPS because Jones said that the seller was from Texas. Detective
Hinton testified that Texas DPS emailed her a photographic lineup that she
presented to Jones who then identified Defendant as the seller.
Jones testified that he cooperated with the drug task force because he was
―working off‖ charges for possession of crack. Additionally, at the time of trial, he
had pending charges for doctor shopping and indecent behavior with juveniles.
Jones testified that he participated in controlled buys on September 15, 16,
17, 18, and 23, 2009, and purchased crack cocaine from ―Old School.‖ Jones then
made an in-court identification of the Defendant as that person. 2 Jones
subsequently testified that he purchased powder cocaine and that he called the
same phone number to set up each buy. Jones also testified that he and his vehicle
were searched prior to each buy and that he used money that had been photocopied
to make the purchases.
Jones testified that Defendant said that he was doing construction or housing
work and that Defendant drove a BMW, a blue Jeep Cherokee, and a champagne
colored truck. Jones additionally testified that Defendant came from Beaumont,
Texas.
Jones did not recall what time he called Defendant on September 15, 2009.
Jones then testified that he met with Defendant at ―1:00, 1:00 something, 1:30,
2 Jones testified that Defendant had gray braids in September 2009.
4 2:00 o‘clock. That‘s the only times really I met with him. I didn‘t meet with him
at 5:00 o‘clock or 6:00 o‘clock in the afternoon or nothing like that.‖3
Defendant‘s brother, Donald Lewis, testified that he resided in Houston,
Texas, but that he was incarcerated at the time of trial. Lewis testified that he had
been referred to as Donald Lassien and that had been arrested ―on that name‖ for
distribution of a controlled dangerous substance over twenty years ago. Lewis
testified that his children lived in Vinton, Louisiana, and that he might have visited
there in 2009.
Ernest Mitchell, also Defendant‘s brother, testified that Defendant was a
contractor who did roofing and construction work in Beaumont, Texas. Mitchell
also testified that Defendant drove a blue Ford truck, a Ford Explorer that belonged
to one of their brothers, and a black Dodge Charger or Challenger. Mitchell
further testified that Donald Anderson was his cousin and that Anderson owned a
beige Chevrolet truck and a Jeep.
Defendant contends that the only evidence to convict him was the self-
serving testimony of Jones. Defendant notes that none of the videos introduced at
trial showed a drug transaction between himself and Jones. Defendant further
notes that, in fact, he could not be seen in any of the videos. He asserts that a
blurry image of a balding man with braids can be seen in the video from September
17, 2009, but that no one identified that man. Defendant points out that Jones
testified that Defendant had gray braids from the front of his head to the back.
Defendant argues that Jones‘s identification could have been tainted by the
photographic lineup that was not admitted into evidence.
3 Detective Hinton testified that Jones called Defendant to set up the first buy at 4:09 p.m. No time was notated for the second and third buys. However, the recording for the second buy started at 5:15 p.m. Additionally, the audio for the fourth buy was turned on at 1:38 p.m., and the recording for the fifth buy was turned on at 2:04 p.m.
5 Defendant asserts that Jones did not remember who introduced him to
Defendant, how much buy money he was given, the amount of cocaine he
purchased, or whether the cocaine was crack or powder. Defendant further asserts
that Jones testified that Defendant drove a BMW, but no such vehicle was seen on
any of the videos introduced into evidence. Defendant next argues that although
Detective Hinton testified that Jones and his vehicle were searched before each
buy, this was not enough to prove that Jones did not have cocaine on his person or
in his vehicle.
The State argues that one witness‘s positive identification may sustain a
conviction. In support of this argument, the State cites State v. Henry, 95-428
(La.App. 3 Cir. 10/4/95), 663 So.2d 309, writ denied, 96-681 (La. 5/16/97), 693
So.2d 793, and State v. Gobert, 09-607 (La.App. 3 Cir. 12/9/09), 24 So.3d 1013,
writ denied, 09-2830 (La. 6/18/10), 38 So.3d 321.
The State points out that the phone number that Jones used to set up the buys
had been used by Defendant; Jones picked out Defendant in a photo lineup and
positively identified him in court; Detective Hinton identified Defendant from the
fifth buy and positively identified Defendant in court; Jones testified that the seller
worked in construction in Beaumont, Texas; Mitchell testified that Defendant
worked in construction in Beaumont, Texas; and Defendant‘s cousin drove a truck
similar to that used by the seller.
From a photographic lineup and in court, Jones positively identified
Defendant as the person from whom he purchased cocaine on September 15, 16,
17, 18, and 23, 2009. Additionally, Detective Hinton identified Defendant as being
with Jones on September 23, 2009, and identified Defendant in court. The jury
heard the testimony of both Detective Hinton and Jones that Jones‘s vehicle was
searched for money and contraband before and after each purchase and that Jones 6 turned over cocaine after each buy. The jury‘s credibility determinations made in
regard to these witnesses were questions of fact and, accordingly, rested solely
with the trier of fact. Having reviewed the direct and circumstantial evidence in
the record, we find that the jury‘s determination is supported under the Jackson
standard. Accordingly, Defendant‘s convictions are affirmed.
Ineffective Assistance of Counsel Claim
In his second assignment of error, Defendant contends that he was denied
effective assistance of trial counsel.
The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id. If this court considers a claim of ineffective counsel on appeal, Defendant must satisfy a two-part test. He must first show that counsel‘s performance was deficient and next, that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Teno, 12-357, p. 10 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1075.
Defendant asserts that neither Ida Benoit (a forensic analyst at the Southwest
Louisiana Crime Lab) nor Margaret Steel (also a forensic analyst at the Southwest
Louisiana Crime Lab) had the work experience or practical application required to
be accepted as experts. Defendant further asserts that defense counsel never
requested a Daubert4 hearing concerning the methodology and testing performed
by the Southwest Crime Lab. Defendant asserts that, without such a hearing,
defense counsel could not attack whether the techniques used by the crime lab
lacked proper foundation and reliability. Defendant argues that defense counsel
failed to object to prejudicial evidence, specifically the admission of drug test
4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), 7 results and the qualifications of those conducting the tests. He asserts that he was
prejudiced by defense counsel‘s failure to act.
Benoit and Steele testified regarding lab testing of the cocaine that Jones
purchased. ―Louisiana law provides that, subject to the restrictions contained in
La.R.S. 15:501, certificates of analysis issued by any criminalistics laboratory in
the state ‗shall be received in evidence as prima facie proof of the facts shown
thereon . . . .‘ La.R.S. 15:500.‖ State v. Simmons, 11-1280, pp. 2-3 (La. 1/20/12),
78 So.3d 743, 744. The State filed a notice of intent to use the lab reports filed into
evidence. Defendant failed to demand that the person making the examination or
analysis testify by filing written demand and serving it upon the district attorney.
Thus, the lab reports at issue were prima facie proof of the facts set forth therein.
La.R.S. 15:501(B). Accordingly, Defendant has not proven that he was prejudiced
by defense counsel‘s failure to object to the qualification of Benoit and Steel as
experts.
Defendant also asserts that defense counsel improperly failed to request a
Daubert hearing. In State v. Celestine, 11-1403, p. 5 (La.App. 3 Cir. 5/30/12), 91
So.3d 573, 577, this court set forth the following:
Defendant notes the only evidence linking him to the rape of D.C. was DNA evidence, and trial counsel failed to object to the validity of the test methodology under a Daubert analysis regarding the testing done by Acadiana Crime Lab or Orchid Cellmark. Defendant asserts there can be no explanation why trial counsel failed to request a Daubert hearing.
Defendant does not declare any error in the methodology used by Acadiana Crime Lab and/or Orchid Cellmark. General statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel. State v. Camp, 46,052 (La.App. 2 Cir. 3/16/11), 59 So.3d 548, writ denied, 11-954 (La.12/16/11), 76 So.3d 1199. Thus, this claim of ineffective assistance of is without merit.
8 Defendant in the case at bar does not declare any error in the methodology
used by the Southwest Louisiana Crime Lab. As noted in Celestine, conclusory
allegations will not suffice to prove a claim of ineffective assistance of counsel;
thus, this claim of ineffective assistance of counsel is without merit.
In another assertion of ineffective assistance of counsel, Defendant alleges
that defense counsel also failed to subpoena his employer, Rickey Earnest, who
would have testified that Defendant did not get off work until between 5:00 and
6:00 p.m. on the dates of the buys at issue. Defendant asserts that Earnest‘s wife
was subpoenaed because she was the custodian of records for Earnest‘s business.
Defendant contends that the correct procedure would have been to subpoena the
witnesses pursuant to La.Code Crim.P. art. 741, which provides the method for
obtaining witnesses from outside the state. Defendant asserts that Earnest‘s
testimony was crucial and that the failure to exercise due diligence by issuing a
subpoena for Earnest‘s presence prejudiced him because Earnest would have
provided him with an alibi.
On the last day of trial, defense counsel informed the trial court that she
intended to call Earnest to testify; however, Earnest had called and was stuck in
traffic. Defense counsel stated that Earnest would arrive in three to four minutes.
The trial court gave defense counsel seven minutes to call the next witness. When
the witness was not present, defense counsel proceeded with closing arguments.
Defense counsel filed a motion for new trial alleging that Earnest would
have provided an alibi for Defendant because Defendant was working at the time
of the offenses. An affidavit executed by Earnest was submitted in support of that
motion. The trial court accepted the affidavit as a proffer and denied the motion
for new trial.
9 Because a review of this allegation of ineffective assistance of counsel
would require the introduction of evidence in addition to that provided by the
appellate record, Defendant‘s ineffective assistance of counsel argument regarding
defense counsel‘s failure to subpoena Earnest is more properly reviewed via
application for post-conviction relief.
Excessive Sentence Claim
In his third assignment of error, Defendant contends that the trial court erred
in imposing constitutionally excessive sentences.
In State v. Tall, 12-280, pp. 7-8 (La.App. 3 Cir. 10/24/12), 100 So.3d 388,
394-95, this court stated that:
Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, ―it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.‖ Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge ―remains in the best position to assess the aggravating and mitigating circumstances presented by each case.‖
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). ―[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.‖ State v. Smith, 433 So.2d 688, 698 (La.1983). ―[M]aximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender .‖ State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). ―The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.‖ La.Code Crim.P. art. 881.4(D). 10 Defendant was convicted of five counts of distribution of cocaine, which are
punishable by imprisonment at hard labor for two to thirty years, with the first two
years to be served without benefit of probation, parole, or suspension of sentence.
La.R.S. 40:967(B)(4)(b). Defendant was sentenced to serve thirty years on each
count, to run concurrently.
At the sentencing hearing, the trial court stated that:
Well, you know, you up the ante when you decide to go to trial, not that it‘s not your right to do so, but I‘m sure there was some opportunities prior to trial to work some kind of a deal with the DA, and for whatever reason, Mr. Lassin [sic] chose to take the chances with a jury and -- and he failed. So I‘m going to sentence him to 30 years on each count to run concurrent.
At the hearing on the motion to reconsider sentence, the trial court denied the
motion, stating that:
His opportunity to get a better sentence or a better deal was before trial, not after a conviction on five counts of distribution. That‘s the way it works. Now, I don‘t know what kind of offer was made, but I can tell you and tell him and tell everyone else that, you know, when you roll the dice and go to trial that you up the ante all the way, and that‘s what we did in this case. The jury had their say.
So, you know, the sentences are concurrent. They could have been consecutive, and that‘s the break that he was given.
Defendant contends that, prior to imposing the maximum sentence on each
count, the trial court merely noted that he could have entered into a plea agreement
instead of proceeding to trial and that no mitigating or aggravating circumstances
were considered by the trial court. Defendant further contends that this matter
should be remanded to the trial court for resentencing and compliance with the
guidelines of La.Code Crim.P. art. 894.1.
In his motion to reconsider sentence, Defendant failed to allege that the trial
court did not comply with La.Code Crim.P. art. 894.1. Thus, the question of
whether the trial court properly complied with La.Code Crim.P. art. 894.1 is not 11 properly before this court for review. La.Code Crim.P. art. 881.1; State v. King,
10-1215, pp. 3-4 (La.App. 3 Cir. 4/6/11), 61 So.3d 810, 812.
There was no presentence investigation report prepared in the case at bar.
Additionally, the trial court failed to articulate why Defendant was the worst
offender or committed the most egregious offenses. Furthermore, the record does
not support imposition of maximum sentences. Based on the cases cited herein
and the lack of reasons for sentencing, Defendant‘s sentences must be vacated and
the matter remanded to the trial court for resentencing.
DECREE
Defendant‘s convictions are affirmed. However, his sentences are vacated,
and the matter is hereby remanded to the trial court for resentencing. The trial
court is also directed to inform Defendant of the provisions of article 930.8.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.