STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 17-922
STATE OF LOUISIANA
VERSUS
JERMAINE CHRISTOPHER OBRIEN
A/K/A JERMAINE CHRISTOPHER O'BRIEN
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 16139-16 HONORABLE SHARON D. WILSON, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
AFFIRMED; REMANDED WITH INSTRUCTIONS. Annette Fuller Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Jermaine Christopher Obrien a/k/a Jermaine Christopher O’Brien
John Foster DeRosier, District Attorney Elizabeth Brooks Hollins, Brett Gaspard, and Jason Trevor Brown, Assistant District Attorneys 14th Judicial District Court Post Office Box 3206 Lake Charles, Louisiana 70602 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.
Defendant, Jermaine Christopher Obrien a/k/a Jermaine Christopher O’Brien,
was convicted of possession of a weapon by a convicted felon; attempted illegal
use of a weapon in the presence of drugs; possession of a Schedule II controlled
dangerous substance (cocaine) with intent to distribute; and possession of a
Schedule II controlled dangerous substance (cocaine). He was adjudicated a fourth
felony habitual offender and was ultimately sentenced under the habitual offender
statute to serve forty years at hard labor for possession of a weapon by a convicted
felon; twenty years at hard labor for attempted possession of a firearm in the
presence of drugs; twenty years at hard labor for possession with the intent to
distribute cocaine, and twenty years at hard labor for possession of cocaine, with
each sentence was to run concurrently to the others.1 For the following reasons, we
affirm Defendant’s convictions and sentences. We find a single error patent and
remand that issue to the trial court for remediation.
FACTS AND PROCEDURAL HISTORY:
On June 14, 2016, at approximately 9:30 a.m., the Calcasieu Parish 911
Center received an emergency call from the resident of 412 N. Simmons Street
indicating “he’s a walking with that pistol and . . . he’s scaring them girls, he got
two girls over there . . . he’s making them do what he want ‘em [sic] to do.” When
questioned further about the man’s name, the caller said, “Jermaine! He live [sic]
across the street. That O’Brient [sic] little boy.” The caller further stated, “He’s
walking out there just holding his pistol . . . and scaring them two girls, they [sic]
backing up from him.” When asked to describe what ‘Jermaine’ was wearing, the
1 Pursuant to La.R.S. 15:529.1(G), “[a]ny sentence imposed under the provisions of this Section [(Sentences for second and subsequent offenses)] shall be at hard labor without benefit of probation or suspension of sentence.” caller stated “[he] ain’t [sic] got nothing but a pair of pants on, no shirt.” She
insisted she needed the narcotics squad because “that’s [(drugs)] all that’s over
there.” Corporal Benjamin Randolph and Corporal Bendy Falcon responded to the
call at 409 North Simmons Street, the home of Jermaine O’Brien’s parents.
When they arrived, a truck was in the driveway with several occupants.
Upon questioning, the occupants directed the officers to the back of the house.
The occupants drove away shortly thereafter. When the responding officers
rounded the corner to the back of the house, Corporal Randolph saw Defendant
Jermaine O’Brien counting a stack of money. He was sitting with his back against
a shed that was connected to the main house by a porch. Next to him, “within
arm’s reach,” was a HiPoint .40 caliber handgun. Defendant did not see Corporal
Randolph at first.
When he noticed Corporal Randolph, Defendant stood up. Because the
handgun was within arm’s reach of Defendant, Corporal Randolph drew his gun.
Officer Falcon, who was also on scene, then told Defendant to get on the ground.
Defendant did not comply. Instead, he gathered the money, stood up, and started
walking toward the back door. When he reached the back door, Defendant began
pacing back and forth. Finally, he dropped the money and knelt on the ground.
Corporal Randolph secured the gun and gave it to Officer Falcon to clear.
When clearing the gun, a bullet was found in the chamber and several bullets were
found in the magazine, which had been loaded into the handgun.
Corporal Randolph, who was familiar with Defendant from previous
narcotics arrests and knew he was a convicted felon, placed Defendant under arrest
for unlawful possession of the gun by a convicted felon. During a search of
Defendant’s person, five rocks of crack cocaine were found in Defendant’s pockets.
2 While handcuffed and after the crack cocaine was found, Defendant ran into the
main residence and a taser was used to stop him when he began reaching toward
the right leg of his pants. The officers then placed Defendant in the police vehicle.
While walking to the police car, Defendant admitted to Corporal Randolph that “all
of that’s mine except for the gun.” He explained: “Somebody from the driveway
put the gun there.” Because the shed had not yet been searched, Corporal
Randolph interpreted this statement to mean only the crack cocaine found in
Defendant’s pockets belonged to Defendant.
At some point during the arrest, a female, later identified as Defendant’s
girlfriend, walked out of the shed with four small children. When asked,
Defendant’s mother told the officers that Defendant did not live in their home but
sometimes spent time in the shed. Suspicions aroused, the officers asked for and
received written permission from Defendant’s mother to search the shed.
Upon entering the single room shed, the officers saw a table, chairs, a
television, and several items of men’s clothing. The officers testified that, based
on their experience in other narcotics cases, they found pink packages that looked
like packages of synthetic marijuana on the table. A digital scale and smaller clear
plastic bags also containing what resembled synthetic marijuana were also found.
Corporal Randolph testified that the small clear baggies resembled the packaging
used for resale of narcotics. A metal cylindrical container containing a substance
the officers believed was powder cocaine was found on the floor underneath the
table. A measuring cup and fork with white powder residue on them, and a
microwave plate covered in white powder were also found. Corporal Randolph
testified that he had come across these types of items in previous narcotics arrests
3 when someone was making crack cocaine from powder cocaine. By this time, the
narcotics team had arrived and assisted in the search of the shed.
As the officers continued their search, testimony at trial established that the
officers found cigarillo cigar boxes, a cup containing marijuana, a second cup
containing a bag of what officers believed to be powder cocaine, a teddy bear, and
a backpack. The teddy bear had a hole in its back and inside the hole was a clear
plastic bag of what was believed to be powder cocaine, another bag containing
assorted pills, and a small quantity of white powder also believed to be powder
cocaine. The backpack contained several pink packages of presumed synthetic
marijuana, clear zip-lock bags, jeweler bags, 2 a grocery bag containing seven
unopened packages of synthetic marijuana, and U.S. currency in varying
denominations. The officers discovered an Airsoft BB gun, loose ammunition, and
a 9mm round. A box of ammunition was located outside.
One of the trained canines used by the officers alerted to the odor of
narcotics coming from a silver Buick at the residence. The officers obtained a
search warrant for the car. Although owned by Defendant’s dad, officers were told
that Defendant was the primary driver. In the car, the officers found a rock of
crack cocaine on the floorboard, a cigarillo wrapper matching the boxes found in
the shed, and a jewelry bag containing synthetic marijuana.
The officers did not search Defendant’s parents’ home or their persons.
Defendant did not enter the shed or handle the gun in the officers’ presence that
morning.
2 According to the narcotics experts, jeweler or jewelry bags are small clear bags typically used by dealers in the sale of small quantities of drugs.
4 The total amount of money discovered in the search (including the money
Defendant was holding when officers arrived) was three thousand, five hundred
and forty-six dollars ($3,546.00). The money was in mixed denominations, which
is indicative of drug sales according to Detective Nunez and Corporal Randolph.
Ultimately, drug test results were introduced into evidence and confirmed that over
32 grams of powder cocaine, six rocks of crack cocaine, and 103.1 grams of
synthetic marijuana were discovered and confiscated.
At trial, Corporals Randolph and Falcon, Detective Jeremy Nunez with the
Calcasieu Parish Sheriff’s Office combined anti-drug team, Gabrielle Basone, a
forensic chemist, Lieutenant Craig Desormeaux with the Lake Charles Police
Department communications office, and Robert Broussard, an information
technician for the Calcasieu Parish 911 Center testified. The recording of the 911
call was played for the jury.3 The caller lived across the street from Mr. and Mrs.
O’Brien and stated on the 911 recording that Jermaine, who “live [sic] across the
street, that O’Brient [sic] little boy” was walking around in nothing but a pair of
pants with a pistol, scaring two girls. She further insisted there were drugs “all
over there”, so the narcotics team needed to investigate.
Detective Nunez described some of the contraband confiscated as “small foil
zip packs” containing several grams of drugs, which are then subdivided into
grams, placed in smaller baggies, and resold. The pink bags, called “bubble gum,”
are usually fourteen-gram bags. They are then put into even smaller bags, called
jewelry or jeweler bags, for sale to individual users. Detective Nunez explained
that digital scales are used by drug dealers to divide drugs into smaller quantities
3 The 911 call was played in two increments. The first half was recorded by the Calcasieu Parish 911 Center and the call was then transferred to the Lake Charles Police Department. The jury heard that “he” was carrying a pistol in his pants and scaring others.
5 for resale. He also testified that when searching a suspected drug dealer’s space, it
is normal to find multiple kinds of drugs stashed in various places.
To determine whether an individual is a user or a distributor, narcotics
detectives look at the totality of the situation and consider things like the quantity
of drugs found, whether resale items (like a scale and small baggies) or individual
use paraphernalia (like a pipe) is present, the type of drugs found, and the amount
of cash on hand.
Detective Nunez explained to the jury the difference between users, mid-
level dealers, high-level dealers, and cartels. He defined cartels as people dealing
more than one kilogram of drugs in any given transaction, and they are usually
located out of state. High-level dealers were characterized as people who deal
between 28 grams and one kilogram. Typically, they are outsourcing from out of
state for purchase. Mid-level dealers were defined as having 3.5 grams to half an
ounce, which they “break [] down, manufacture cocaine or break it down into
powder cocaine, [and] they’ll cut the powder cocaine to stretch it.” Dealers
typically have more than one type of drug on hand as opposed to users, who
generally only possess one type. A user is someone who buys one or two rocks or
up to a gram of drugs in any given day.
In addition to considering how many different drugs are present and how
much of each drug is found, investigators also consider the type(s) of paraphernalia
found at the scene. Detective Nunez explained that a user will generally have
personal-use paraphernalia like crack pipes and snorting straws, while a dealer will
have packaging and weighing materials. Dealers also may have false containers
6 like the teddy bear, or cooking materials like the microwave, measuring cup, and
fork.4
The officers did not find any individual-use devices on Defendant, in the
shed, or in the car. Detective Nunez told the jury that he believed Defendant was a
dealer who was manufacturing crack cocaine in the shed. The digital scale, the
amount of powder cocaine, the measuring cup, the microwave with its cocaine
covered plate, the lack of personal use paraphernalia, the crack rocks in his pocket,
the gun, and the cash all formed the basis for his conclusion.
The defense did not call any witnesses. Defendant’s counsel introduced
certified copies of minutes from 1993 convictions of Defendant’s parents for
distribution of cocaine. The defense pointed out to the jury that the home, shed,
and vehicle belonged to Defendant’s parents. He further pointed out that neither of
Defendant’s parents nor their residence had been searched by investigating officers.
Finally, the parties stipulated to the introduction of certified copies of
fingerprints and the minutes of January 24, 2013 convictions of distribution of a
Schedule II controlled dangerous substance and possession of a Schedule II
controlled dangerous substance (both cocaine), and that Defendant was the same
person as the individual convicted on January 24, 2013.
The jury convicted Defendant of: 1) possession of a weapon by a convicted
felon, 2) attempted illegal use of a weapon in the presence of drugs, 3) possession
of a Schedule II Controlled Dangerous Substance with an intent to distribute, and 4)
possession of a Schedule II Controlled Dangerous Substance.
4 Detective Nunez testified that powder cocaine can be cooked to make crack cocaine, which is then broken into pieces for re-sale.
7 The trial court imposed sentences on each charge on March 3, 2017. The
State then filed a habitual offender bill as provided by La.R.S. 15:529.1, which was
heard on August 10, 2017. At the habitual offender hearing, the trial court found
Defendant to be a fourth felony habitual offender. It also found deviation from the
mandatory life sentence was appropriate. At the time Defendant was billed as a
fourth felony habitual offender, La.R.S. 15:529.1(A)(4)(c) mandated a life
sentence without benefit of parole, probation, or suspension of sentence “[i]f the
fourth felony and the two prior felonies are felonies defined as . . . a violation of
the Uniform Controlled Dangerous Substances Law punishable by imprisonment
for ten years or more.”
In 2017, the Louisiana legislature revised the habitual offender sentencing
structures and removed the life sentence requirement for fourth felony offenders
with underlying drug convictions. The amendment became effective on November
1, 2017. Even though not yet in effect, the trial court sentenced Defendant in
accordance with the November 1, 2017 sentencing guidelines. The trial court
found the legislative re-structuring was “a legislative declaration that the [life]
sentence would be excessive for someone with . . . [only] drug-related priors.” The
trial court explained that “there is a legitimate goal in society to punish someone
who is a chronic drug offender” but further explained that “a punishment should be
commensurate with someone’s culpability and fare [sic] under the circumstances.”
The trial court stated, “this Court is required under [its] oath to deviate from the
mandatory sentence.”
The trial court vacated its March 3, 2017 sentences and re-sentenced
Defendant to forty years at hard labor for possession of a weapon by a convicted
felon; twenty years at hard labor for attempted possession of a firearm in the
8 presence of drugs; twenty years at hard labor for possession with the intent to
distribute cocaine; and twenty years at hard labor for possession of cocaine.5 The
court ordered each sentence to run concurrently with each other and that Defendant
be given credit for any time served since June 14, 2016, for these offenses. The
court recommended Defendant participate in any treatment or life skills programs
available during his incarceration.
ASSIGNMENTS OF ERROR:
1. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Jermaine O’Brien was in actual or constructive possession of a firearm on or about June 14, 2016.
2. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that on or about June 14, 2016, Jermaine O’Brien attempted to use, possess, or have under his immediate control a firearm, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance.
3. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Jermaine O’Brien was in actual or constructive possession of cocaine with the intent to distribute the cocaine, on or about June 14, 2016.
4. Multiple punishment for both possession of cocaine with the intent to distribute and possession of cocaine arising from the same act or transaction is a violation of the Double Jeopardy Clause.
5. Counsel rendered ineffective assistance which prejudiced Appellant by permitting the introduction of inadmissible hearsay and evidence in violation of Appellant’s right of confrontation, and in failing to object to the State’s improper closing and rebuttal arguments.
5 During sentencing, the trial court did not expressly specify whether Defendant’s sentence was to be served with or without benefits. However, the trial court did state “[h]e” stands convicted of the offenses charged and he stands proven a multiple offender. Louisiana Revised Statutes 15:529.1(G) expressly provides: “[a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.” Thus, Defendant’s sentence is to be served without benefits.
9 ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, after reviewing the record, we
find one error patent.6
The record before this court 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. Thus, the trial court is directed to inform Defendant of
the provisions of Article 930.8 by sending appropriate written notice to Defendant
by certified mail, return receipt requested, within ten days of the rendition of the
opinion and to file written proof in the record that Defendant received the notice.
See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-
1762 (La. 2/10/06), 924 So.2d 163; State v. Fontenot, 616 So.2d 1352 (La.App. 3
Cir.), writ denied, 623 So.2d 1334 (La.1993).
ASSIGNMENTS OF ERROR ONE AND TWO:
Standard of Review:
We review sufficiency of evidence claims to determine whether, after
reviewing the entire record and “viewing the evidence in the light most favorable
to the State, any rational fact-finder could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Lapoint, 16-187, p. 2 (La.App. 3 Cir.
9/28/16), 202 So.3d 593, 596, writ denied, 16-2087 (La. 9/22/17), 227 So.3d 824.
Our role is to ensure sufficient evidence for the conviction exists in the record.
Unless we find the evidence in the record does not support the conviction, we can
6 Defendant’s charge in count three was possession with the intent to distribute cocaine. Attempted possession with intent to distribute cocaine was provided as a responsive verdict on the verdict sheet given to the jury. The written jury verdict for count three simply states, “guilty of CDS II, cocaine with intent to distribute” making it unclear as to whether the jury convicted Defendant of possession or attempted possession. However, the verdict was clarified when the minute clerk read the verdict as “guilty of possession of CDS II, cocaine, with intent to distribute” and the foreman indicated this was their verdict. Therefore, we do not consider this an error patent.
10 only impinge on the jury’s discretion “to the extent necessary to guarantee the
fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305,
1310 (La.1988). We are not called to weigh the evidence and ask if we believe the
evidence established guilt beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979). We are constrained from second guessing
credibility and evidentiary determinations of the jury. See Lapoint, 202 So.3d 593.
Absent internal contradiction or irreconcilable conflict with the physical evidence,
a witness’s testimony alone—when believed by the fact-finder— can sufficiently
support a guilty verdict. Id.
In the first two assignments of error, Defendant challenges the sufficiency of
the evidence supporting his convictions for possession of a firearm by a convicted
felon and attempted possession of a firearm while in possession of a Schedule II
controlled dangerous substance. Defendant contends he never directly or
constructively possessed the firearm and asks that we overturn those convictions.
Possession of a Firearm by a Convicted Felon (La.R.S. 14:95.1 violation):
The offense of possession of a firearm by a convicted felon is defined in
La.R.S. 14:95.1, which provides in pertinent part:
A. It is unlawful for any person who has been convicted of . . . any violation of the Uniform Controlled Dangerous Substances Law which is a felony . . . to possess a firearm or carry a concealed weapon.
....
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.
Recently, this court acknowledged the proof necessary to support a
conviction for possession of a firearm by a convicted felon:
11 The State must prove beyond a reasonable doubt that 1) the defendant possessed a firearm; 2) the defendant has a previous conviction for one of the enumerated felonies; 3) the ten-year cleansing period for the prior conviction had not elapsed at the time of possession; and 4) the defendant had the general intent to commit the crime.
State v. Sinegal, 17-527, 2017 WL 6350261, at *10 (La.App. 3 Cir. 12/13/17)
(citations omitted). Defendant only appeals the finding of possession of a firearm,
so we will not address factors 2-4.
This court has determined that actual possession of a firearm is not
necessary to satisfy the possession element; constructive possession is sufficient.
See State v. Edwards, 12-891, (La.App. 3 Cir. 2/6/13), 107 So.3d 883.
Constructive possession occurs when “a thing [is] subject to [the defendant’s]
dominion and control.” Id. at 888 (quoting State v. Lee, 02–704, p. 5 (La.App. 5
Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03–535 (La.10/17/03), 855 So.2d
755 (footnotes omitted)). Even when dominion over a weapon is temporary or
control is shared, constructive possession of the weapon can still be found if
evidence supports “the offender was aware that a firearm was in his presence, and
that he had the general criminal intent to possess the weapon.” Id.
“Guilty knowledge is an essential element in proving constructive
possession [of a firearm] and may be inferred from the circumstances.” State v.
Fobb, 11-1434, p. 12 (La.App. 3 Cir. 6/6/12), 91 So.3d 1235, 1244 (quoting State
v. Brooks, 99–478, pp. 4–6 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ
denied, 00–1492 (La.5/25/01), 792 So.2d 750). ‘“Constructive possession entails
an element of awareness or knowledge that the firearm is there and the general
intent to possess it.”’ Fobb, 91 So.3d at 1244 (quoting State v. McKinney, 44,269,
p. 7 (La.App. 2 Cir. 5/13/09), 12 So.3d 422, 426). ‘“[M]ere presence of a
defendant in the area of the contraband or other evidence seized alone does not
12 prove that he exercised dominion and control over the evidence and therefore had
it in his constructive possession.’” State v. Johnson, 03-1228, p. 6 (La. 4/14/04),
870 So.2d 995, 998-1000 (quoting State v. Walker, 369 So.2d 1345, 1346
(La.1979)).
The supreme court has broadly interpreted constructive possession. In
Johnson, a handgun was found on the floorboard of a vehicle where Johnson’s feet
had been before he was removed from the car. Testimony revealed that no one
saw Johnson with the gun and the vehicle did not belong to Johnson. Additionally,
another occupant of the vehicle claimed ownership of the gun and testified that she
attempted to hide the gun before exiting the vehicle. The supreme court reversed
the appellate court’s decision to overturn Johnson’s conviction for possession of a
firearm by a convicted felon, stating:
The evidence presented by the State was sufficient to prove that the defendant was in fact in possession of the weapon and that this possession was enough to sustain a conviction on the charge of a felon in possession of a firearm, La. R.S. 14:95.1. . . . In this matter, the jury made a credibility determination and found [two witnesses’] accounts unconvincing. Consequently, it was inappropriate for the court of appeal to impinge on the fact finder’s discretion to rely instead on the testimony of [a third witness] absent a showing that the defendant was not granted the fundamental due process of law.
Johnson, 870 So.2d at 998-1000 (citations omitted) (emphasis in original).
General intent “is a fact question which ‘may be inferred from the circumstances of
a transaction.’” Edwards, 91 So.3d 1234 (quoting State v. Johnson, 09–862,
(La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267).
In the present case, Defendant challenges the State’s proof that he possessed
the firearm in question. Defendant argues that no one testified to seeing him in
actual possession of the weapon recovered by Corporal Randolph. Defendant
asserts “there was no evidence to support the validity of the [911] call” to which
13 the officers responded. Defendant also asserts the officers arrived on the scene six
minutes after the 911 call, at which time he was not walking around with a pistol.
Without elaboration, Defendant asserts that the weapon described in the 911 call
was different than the one seized and the 911 caller’s comments that “Jermaine”
was in actual possession of a weapon could not be used as substantive evidence to
establish possession of the weapon at issue.
Defendant further argues that his mere presence near the weapon was
insufficient to prove that he exercised dominion and control over the weapon,
specifically noting that he did not advance toward the weapon. Although
Defendant acknowledged there was a weapon when he told police officers
everything was his but the gun, Defendant minimizes his acknowledgment by
noting that the statement was made after the officers had seized and cleared the
weapon in Defendant’s presence. Finally, Defendant notes that several other
people were in the vicinity of the gun.
In its brief, the State asserts that Defendant demonstrated guilty knowledge
of the firearm when he disobeyed Corporal Falcon’s command to get on the ground
and instead picked up his money, walked to the back door of the residence, and
began pacing back and forth. The State asserts Defendant exercised dominion and
control over the firearm because it was loaded and less than a foot away from him.
Considering the facts presented in this case and the jurisprudence, the
evidence was sufficient to prove Defendant constructively possessed the firearm at
issue herein. A 911 caller had reported seeing Defendant with a gun several
minutes before Corporal Randolph saw Defendant with a gun within a foot of his
person. Corporal Randolph believed Defendant had access to the gun and testified
that it was within arm’s reach. The gun was also uncovered, which indicates
14 Defendant was aware of the gun’s presence. Defendant’s statement that the gun
was not his also evidenced his knowledge of the gun’s presence. The jury heard
testimony that other people were near the gun and heard Corporal Randolph say
Defendant denied ownership of the gun. Obviously, the jury rejected these
hypotheses of innocence. Considering Defendant’s reluctance to submit to
Corporal Randolph’s commands, the 911 caller’s statement that Defendant was in
possession of a pistol minutes before Corporal Randolph saw Defendant within
arm’s reach of a gun, and the unobstructed view of the gun, we find the evidence
was sufficient for the jury to find Defendant constructively possessed the firearm.
Attempted illegal use of a weapon in the presence of drugs (La.R.S. 14:95(E) violation):
Defendant was charged with illegal use of a weapon in the presence of drugs
in violation of La.R.S. 14:95(E). However, the jury returned the responsive verdict
of attempted illegal use of a weapon in the presence of drugs.
When a jury returns a responsive verdict, sufficiency of the evidence claims
are reviewed for evidence supporting the essential elements of the greater offense,
“whether or not the evidence supports the conviction of the responsive verdict
returned by the trier of fact.” State v. Jeter, 09-1004, pp. 2-3 (La.App. 3 Cir.
4/7/10), 33 So.3d 1041, 1043 (quoting State v. Savoy, 08–716 (La.App. 3 Cir.
12/10/08), 999 So.2d 285). Because the jury returned a responsive verdict of
attempted illegal use of a weapon in the presence of drugs, which is a lesser
offense than illegal use of a weapon in the presence of drugs, we look to the
essential elements of the latter to determine whether sufficient evidence for
conviction of the former exists in the record.
15 At the time the offense was committed (June 14, 2016), La.R.S. 14:95(E)
(emphasis added) provided in pertinent part:
E. If the offender uses, possesses, or has under his immediate control any firearm . . . while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.
The trial court included the La.R.S. 14:95(E) definition in its instructions to
the jury.
To convict a defendant of violating La.R.S. 14:95(E), “the State [is] required
to prove beyond a reasonable doubt that Defendant: ‘(1) knowingly or intentionally
possessed any firearm or other instrumentality customarily used o[r] intended for
probable use as a dangerous weapon, while at the same time (2) knowingly or
intentionally possessing a controlled dangerous substance.’” State v. Thompson,
06-474, p. 2 (La.App. 3 Cir. 11/8/06), 943 So.2d 621, 623, writ denied, 06-2959
(La. 9/14/07), 963 So.2d 993 (quoting State v. Blanchard, 99-3439, (La. 1/18/01),
776 So.2d 1165).
The supreme court has determined that when use or actual possession cannot
be established (for instance, when the defendant is in constructive possession of the
firearm), “the state must prove more tha[n] mere possession of the firearm. It must
prove some connection between the firearm possession and the drug offense” to
meet its burden of proving a defendant violated La.R.S. 14:95.1. Blanchard, 776
So.2d 1173.
When both the drugs and the gun were in the defendant’s immediate control
before being questioned by an officer, the State was not required to prove a nexus
16 between possession of a gun and possession of drugs even though the defendant
was not in actual possession of the gun at the time of questioning. See Thompson,
943 So.2d 621. The State was, however, “required to prove [the defendant]
knowingly possessed the gun and the drugs.” Thompson, 943 So.2d at 627. In
Thompson, this court found that “the evidence prove[d the d]efendant had
knowledge that the gun was in his vehicle, as he informed police of its location.
Additionally, the evidence prove[d the defendant] had guilty knowledge of the
drugs.” Id. At 627. The Thompson court concluded that “the evidence, when
viewed in the light most favorable to the prosecution, proves beyond a reasonable
doubt that [the d]efendant knowingly or intentionally possessed a gun while
knowingly or intentionally possessing cocaine.”
Similarly, Defendant had constructive possession of the gun and actual
possession of drugs immediately before his arrest. Thus, the State did not need to
prove a nexus between the two. They only had to prove Defendant had knowledge
of the drugs and the gun. The evidence is clear that Defendant knew he was in
possession of drugs at the time of the offense because five rocks of crack cocaine
were found in his pocket. The evidence also indicates Defendant was well aware
of the gun because he told officers it wasn’t his when walking to the police car.
For the reasons discussed in conjunction with Defendant’s constructive possession
of the firearm, the evidence was sufficient to prove the firearm was in Defendant’s
immediate control and that he was in constructive possession of the gun while he
was in actual possession of the drugs. We affirm Defendant’s conviction and
sentence for attempted possession of a firearm while in the presence of a controlled
dangerous substance.
17 ASSIGNMENT OF ERROR NO. 3:
Defendant asserts the evidence was insufficient to prove he was in actual or
constructive possession of cocaine with the intent to distribute. To determine
whether a defendant possessed an illegal drug with intent to distribute, courts are to
consider:
whether: (1) [the defendant] ever distributed or attempted to distribute the substance; (2) the substance was in a form typically associated with possession for distribution; (3) the amount created a presumption of the intent to distribute; (4) expert or other testimony showed the amount was inconsistent with personal use; and (5) any paraphernalia associated with the intent to distribute was present.
State v. James, 16-522, pp. 5-6 (La.App. 3 Cir. 4/5/17), 216 So.3d 117, 123.
“Evidence of prior acts of distribution [are] admissible on the question of specific
intent.” State v. Hill, 11-2585, p. 1 (La. 3/9/12), 82 So.3d 267, 267. “[E]vidence
of other drug sales is of great probative value in establishing intent to distribute
when it is an essential element of the crime charged.” Hill, 82 So.3d at 267-68
(quoting State v. Grey, 408 So.2d 1239, 1242 (La1982)).
Five rocks of crack cocaine were found in Defendant’s pocket. At the time
he was approached by officers, Defendant was counting money and was in
constructive possession of a loaded gun. Individual use paraphernalia was not
found at the scene, but paraphernalia used for packaging and re-sale was found in
the shed near the location at which Defendant was first observed, and in the car
that Defendant used as the primary driver. The person seen walking out of the
shed was Defendant’s girlfriend. Defendant’s mother stated that Defendant hung
out in the shed every once in a while, and adult male clothing was found in the
shed. A search of Defendant’s parents’ car yielded crack cocaine under the
driver’s seat, a baggie containing suspected synthetic cannabinoids like the baggies
18 found in the shed, and a cigarillo wrapper that was the same brand as the cigarillo
cigar boxes found in the shed.
According to expert testimony, the narcotics, paraphernalia, and money
found in the shed were consistent with packaging for resale, not personal use.
Based on what was found in the shed, Detective Nunez opined that Defendant was
manufacturing crack cocaine to sell and was selling powder cocaine. Finally,
Defendant’s prior convictions for distribution of cocaine and possession of cocaine
were introduced into evidence to prove he was a convicted felon for purposes of
proving intent to sell and possession of a firearm by a convicted felon.
The evidence was sufficient to find Defendant possessed the five rocks of
cocaine on his person with the intent to distribute. For the foregoing reasons, this
assignment lacks merit.
ASSIGNMENT OF ERROR NO. 4:
Defendant asserts his convictions for possession of cocaine with the intent to
distribute (count three) and possession of cocaine (count four) arose from the same
act or transaction and violated his protection against double jeopardy. “‘It is
unconstitutional to place a person twice in jeopardy of life or limb for the same
offense.’” State v. Hampton, 17-383, p. 12 (La.App. 3 Cir. 11/15/17) (unpublished
opinion) (quoting State v. Steele, 387 So.2d 1175 (La.1980)). 7 “‘The guarantee
against double jeopardy provides three central constitutional protections’ one
of which is ‘protection against multiple punishments for the same offense.’” Id.
(quoting State v. Brown, 42,188, 42,189, 42,190, p. 38 (La.App. 2 Cir. 9/26/07),
966 So.2d 727, 755).
7 State v. Hampton is cited at 2017 WL 5477610.
19 In reviewing double jeopardy claims, Louisiana courts are to apply the
standard established by the Supreme Court in Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, (1932). See State v. Frank, 16-1160 (La. 10/18/17), –––
So.3d ––––, 2017 WL 4681941. “Under the Blockburger test, there is no double
jeopardy . . . where each provision requires proof of an additional distinct element
that the other does not.” State v. Cooley, 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87
So.3d 285, 295. ‘“[A] defendant can be convicted of two offenses arising out of
the same criminal incident if each crime contains an element not found in the
other.”’ Hampton, p. 12.
Louisiana’s system of general verdicts allows jurors to “take alternate routes
to the same end according to individual juror’s perceptions of what the state did or
did not prove at trial.” State v. Pegues, 10-1626, p. 8 (La. 2/18/11), 56 So.3d 223,
228. Because it provides that discretion to the jury and jurors are unable to explain
their underlying thought processes in reaching their verdicts, “the double jeopardy
analysis in cases such as the present one necessarily proceeds on the same purely
objective level that a due process inquiry into the sufficiency of the evidence
supporting the verdicts also takes place.” Id.
A double jeopardy inquiry is to proceed on a purely objective level. Pegues,
56 So.3d 223. In the instant case, the jury was presented with evidence of multiple
sources of cocaine from which it could have convicted Defendant of possession of
cocaine and possession with the intent to distribute cocaine. See State v. Cosey,
11-774 (La.App. 3 Cir. 2/1/12) (unpublished opinion).8 For the foregoing reasons,
this assignment lacks merit.
8 This case is cited at 2012 WL 280632.
20 ASSIGNMENT OF ERROR NO. 5:
Defendant asserts his counsel was ineffective for failing to object to the
admission of the 911 tape and for failing to object to the State’s improper closing
argument. Effective assistance of counsel is guaranteed to criminal Defendants by
the U.S. Constitution. See State v. Bright, 98-398 (La. 4/11/00), 776 So.2d 1134,
reversed on other grounds, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37.
To establish a claim of ineffective assistance, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel's professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. This does not mean “errorless counsel [or] counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.”
Bright, 776 So.2d at 1157 (citations omitted).
On appeal, Defendant asserts that his trial counsel should have objected to
the 911 tapes because he was denied the right to confront the caller, the recording
was inadmissible hearsay, and the recording contained inadmissible bad acts. A
trial court’s ruling on the admissibility of evidence will not be disturbed on appeal
absent a clear abuse of the trial court’s discretion. State v. Bell, 05–0808, p. 12
(La.App. 4 Cir. 12/6/06), 947 So.2d 774, 781.
Confrontation of caller:
The Confrontation Clause of the Constitution gives defendants the right to
confront anyone testifying against them. However, not all statements are
testimonial in nature and if nontestimonial, the statements can be admissible even
if the person who made the statement is not available to testify at trial. The United
States Supreme Court has found that in certain circumstances, recordings of 911
calls can be nontestimonial and therefore admissible. See Davis v. Washington,
21 547 U.S. 813, 126 S.Ct. 2266, (2006). In Davis, 547 U.S. at 822, 126 S.Ct. at 2276
the Supreme Court explained that “[a] 911 call, . . . at least the initial interrogation
conducted in connection with a 911 call, is ordinarily not designed primarily to
‘establis[h] or prov[e]’ some past fact, but to describe current circumstances
requiring police assistance.” It explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
Id. at 822, 2273-74.
The 911 call in the present case was made to report a crime and assist police
in responding to an ongoing emergency (Defendant’s alleged acts of scaring girls
with a gun). Thus the 911 call in the present case was nontestimonial in nature and
did not violate Defendant’s confrontation rights.
Inadmissible hearsay:
Defendant also alleges the recorded 911 call was inadmissible hearsay.
Hearsay is “a statement, other than one made by the declarant while testifying at
the present trial or hearing, offered in evidence to prove the truth of the matter
asserted.” La.Code Evid. art. 801(C). Hearsay statements are inadmissible
“except as otherwise provided by the Code of Evidence or other legislation.” La.
Code Evid. art. 802. One of the hearsay exceptions is the “excited utterance”
exception. An “excited utterance” is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.” La.Code Evid. art. 803(2).
Recordings of 911 calls in which the caller was experiencing or witnessing
the event first-hand (as opposed to relaying information provided by another
22 person) have been considered “excited utterances” and hearsay exceptions. See
Falkins, 146 So.3d at 849-51. Similarly, the 911 call in the present case could be
considered an excited utterance and an exception to the hearsay rule. The caller
related events as she saw them happening or shortly thereafter. The caller was
clearly still under the stress of seeing Defendant walking around with a pistol and
scaring others. Thus, the 911 call in the present case was admissible under the
“excited utterance” exception to the hearsay rule, and Defendant fails to prove his
trial counsel erred in failing to object to its admissibility.
Other crimes evidence:
Finally, Defendant asserts the 911 call should have been objected to by trial
counsel because it contained inadmissible other crimes evidence—namely
statements that females were threatened while Defendant was carrying a weapon.
Evidence of other crimes, wrongs, or acts of a defendant are generally
inadmissible. La.Code Evid. art. 404(B)(1). However, the State can introduce
other-crimes evidence when the conduct “constitutes an integral part of the act or
transaction that is the subject of the present proceeding[,]” which is the res gestae
exception.
The Louisiana Supreme Court has interpreted the res gestae exception broadly, concluding that the exception includes “not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances.” State v. Colomb, 98–2813, pp. 3–4 (La.10/1/99), 747 So.2d 1074, 1075–1076 (quoting State v. Molinario, 383 So.2d 345, 350 (La.1980)).
Falkins, 146 So.3d at 851-52.
The caller’s reference to this incident was part of the integral act of the event
she was reporting to police and indicated the urgency of her request for police
23 presence. We find no abuse of discretion by the trial court in admitting the
recordings of the 911 call into evidence.
Improper closing argument:
Finally, Defendant asserts that his trial counsel was ineffective for failing to
object to improper closing argument by the State in which it described Defendant’s
father as being ill and bedridden. The specific statement made was:
The defense is actually pushing his own parents, blaming them, without even calling them to the witness stand. Extraordinary. Never seen that before. When you have somebody never even given an opportunity to defend themselves. You wouldn’t even get to hear that his father is ill and was bedridden. You wouldn’t get to hear that his mother - - that they were born in 1958, that they’re almost 60 years old. You wouldn’t get to hear anything about that.
However, the proper remedy for improper argument would have been to
request a mistrial under La.Code Crim.P. art. 771. Addressing a similar ineffective
assistance of counsel claim for failing to object to an improper argument or ask for
a mistrial, a panel of this court stated the following:
Had defense counsel objected to each of the statements above, the only remedy available to defense counsel would have been to ask for an admonition or mistrial under La.Code Crim.P. art. 771.
Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor's comments lies in the sound discretion of the trial judge. State v. Leonard, 2005–1382 p. 11 (La.6/16/06), 932 So.2d 660, 667. Moreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). Although prosecutors are allowed wide latitude in choosing closing argument tactics, they should not misstate the evidence. However, even if the prosecutor exceeds the bounds of closing argument, this court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict. State v. Martin, 1993–285 p.
24 18 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).
State v. Hypolite, 13-1365, pp. 27-29 (La.App. 3 Cir. 5/14/14), 139 So.3d
687, 705, writ denied, 14-1242 (La. 1/23/15), 159 So.3d 1056.
Defendant has failed to show that the comment about Defendant’s father
warranted a mistrial. Moreover, considering the vast amount of evidence adduced
at trial, including the evidence of Defendant’s constructive possession of the gun,
possession of crack cocaine, and possession with intent to distribute the narcotics
found on the premises, the State’s comment was not sufficiently prejudicial to
convince this court that the statement influenced the jury and contributed to the
jury’s verdict. We find no merit in Defendant’s ineffective assistance of counsel
argument.
CONCLUSION:
The convictions and sentences of Defendant, Jermaine Christopher Obrien
are affirmed. The trial court is directed to inform Defendant of the provisions of
La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant
within ten days of the rendition of this opinion and is further directed to file written
proof of Defendant’s receipt of the notice into the record.
AFFIRMED; REMANDED WITH INSTRUCTIONS.