STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 04-742
STATE OF LOUISIANA
VERSUS
JOHN M. BENEDICT
**********
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 2003 HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir, Judges.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
Karen G. Arena Louisiana Appellate Project 110 Veterans Blvd., #222 M etairie, LA 70005 (504) 828-6870 Counsel for: Defendant/Appellant John M . Benedict
James D. W hite Jr. Assistant District Attorney P. O. Box 1652 M onroe, LA 71210 Counsel for: Plaintiff/Appellee State of Louisiana Honorable James Patrick Lemoine Assistant District Attorney, 35th Judicial Dist. P. O. Box 309 Colfax, LA 71417 (318) 627-2971 Counsel for: Plaintiff/Appellee State of Louisiana
John M . Benedict Rapides Detention Ctr. F-Dorm 7400 Academy Drive Alexandria, LA 71303-3728 SAUNDERS, J.
On March 26, 2003, the Grant Parish District Attorney’s Office filed a bill of
information charging Defendant John Benedict with four separate charges related to
the manufacture and distribution of methamphetamine, a violation of La.R.S. 40:967
and 40:964 (Schedule II). There was also a fifth charge related to the possession of
hydrocodone, a violation of La.R.S. 40:968 and 40:964 (Schedule III). However, on
August 25, 2003, the State filed an amended bill containing a total of four charges:
1. Manufacture of Methamphetamine, a violation of La.R.S. 40:967(A)(1) and 40:964 (Schedule II);
2. Conspiracy to Manufacture Methamphetamine, a violation of La. R.S. 14:26, 40:967, and 40:964 (Schedule II);
3. Possession with Intent to Distribute Methamphetamine, a violation of La.R.S. 40:967(A)(1) and 40:964 (Schedule II);
4. Possession of Dihydrocodeinone (Hydrocodone), a violation of La.R.S. 40:968(C) and 40:964 (Schedule III).
Subsequently, Defendant rejected a plea offer and jury selection began on
August 26, 2003. On August 28, the jury found Defendant guilty of all charges.
Thereafter, on September 18, 2003, the State filed a “Habitual Offender Bill of
Information” alleging Defendant to be a second habitual offender. On December 4,
the lower court conducted a hearing on the matter, adjudicated Defendant as a
habitual offender and imposed sentences on all counts.
FACTS:
On the night of January 22, 2003, law enforcement officers raided two trailers
in Grant Parish. Initially, officers observed one man standing in front of one of the
trailers and Defendant running toward a shed. Officers located and arrested
Defendant inside the shed at which time he became cooperative and confessed to manufacturing methamphetamine. He had two small bags of the drug and a
hydrocodone pill in his pocket. As officers searched the scene, they found equipment
and various utensils consistent with the manufacture of methamphetamine and
recovered a total of fourteen grams of the drug. Police also arrested the first man
observed at the scene, Ray Evans, who later pled guilty and appeared as a State
witness at Defendant’s trial.
ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find several
errors patent involving the sentences imposed. One of the errors has been raised and
is discussed in Assignment of Errors Numbers 2 and 3. That error requires that the
habitual offender adjudication and sentences imposed on all four counts be vacated.
Thus, the remaining errors patent, also involving the sentences imposed, are rendered
moot. We will, however, briefly discuss the remaining errors patent.
First, it appears the trial court ordered all sentences to be served without benefit
of parole, probation or suspension of sentence. Although Section G of the habitual
offender statute requires all enhanced sentences to be imposed without benefit of
probation or suspension of sentence, it does not authorize the trial court to impose
enhanced sentences without benefit of parole. La.R.S. 15:529.1(G). Furthermore, the
penalty provisions for counts three (possession with the intent to distribute
methamphetamine) and four (possession of dihydrocodeinone) do not authorize the
trial court to impose any portion of the sentence without benefit of parole. La.R.S.
40:967(B)(1) and La.R.S. 40:968(C). Thus, the trial court improperly denied parole
2 eligibility on those counts. It should refer to the “reference statutes” themselves to
determine whether parole may be restricted.
Additionally, we find that the trial court improperly denied good time
eligibility. According to the supreme court, “a trial judge lacks authority under
La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his
sentence, because that statute is ‘directed to the Department of Corrections
exclusively.’” State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699,
citing State ex rel. Simmons v. Stalder, 93-1852 (La. 1/6/96), 666 So.2d 661.
ASSIGNMENTS OF ERROR:
1. The evidence is insufficient to sustain the verdict as to possession with intent to distribute methamphetamine.
2. The multiple bill of information and the adjudication are null and void because neither specify the offense for which Mr. Benedict is to be adjudicated.
3. The trial court erred in failing to consider Mr. Benedict’s motion to reconsider sentence, which was timely filed.
PRO SE ASSIGNMENT OF ERRORS
1. Was the defense counsel ineffective in not introducing facts and evidence that would have exculpated the defendant, specifically the fact that the defendant had sustained a gunshot wound to his hand the day prior to the arrest?
2. Was the jury selection process tainted?
3. Was the testimony of the State’s witness Ray Evans credible/Was the defense counsel’s representation of Ray Evans a conflict of interest?
4. Was the testimony of the State’s expert witnesses credible?
5. Was the defense counsel ineffective for not filing a motion to hire expert witnesses?
6. Was the defense counsel ineffective for not making an opening statement?
7. Was the defense counsel ineffective for not making a case in defense?
3 8. Was the defendant prejudiced by being sentenced by a different judge than the one who presided over the trial?
9. Was the chain of evidence regarding the alleged methamphetamine seized from the defendant incomplete?
10. Was the sentence that the defendant received constitutionally excessive?
ASSIGNMENT OF ERROR NO. 1:
In his first assignment, Defendant argues the evidence was insufficient to
support his conviction for possession of methamphetamine with intent to distribute.
While he acknowledges the police found items consistent with manufacturing
methamphetamine, he argues they found none “consistent with individual packaging.”
As the State points out in its brief, this is the only one of four convictions that
Defendant challenges on appeal.
This court has explained the basic analysis for challenges to the sufficiency of
trial evidence:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Defendant was convicted pursuant to La.R.S. 40:967, which states in pertinent
part:
A. Manufacture; distribution. . . . [I]t shall be unlawful for any person knowingly or intentionally:
4 (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
Both parties acknowledge that the particular question of proof of intent to
distribute is analyzed by way of the so-called “House factors,” as set forth in the
jurisprudence. This court has explained:
Defendant argues that the State failed to present any evidence of an offense other than possession of cocaine. Defendant relies upon factors outlined in State v. House, 325 So.2d 222 (La.1975) to draw this conclusion. In House, the supreme court found that the State had not proven the defendant's intent to distribute marijuana because it had not offered evidence:
(1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.
Id. at 225. State v. Wells, 99-628, p. 3 (La.App. 3 Cir. 12/22/99), 755 So.2d 963, 966,
writ denied, 00-181 (La. 9/15/00), 767 So.2d 39. The State relies on four major
factors in support of its case.
First, Ray Evans testified that, a short time before police arrived, Defendant
gave him some methamphetamine “kind of” in exchange for letting Defendant use the
property for his methamphetamine operation. This testimony indicates a
“distribution” within the language of La.R.S. 40:961(14). Second, Sergeant Timothy
Ledet of the Louisiana State Police, accepted as an expert, testified that users
normally possess one or two grams at a time. He also testified that the street value
5 of one gram of methamphetamine is one-hundred dollars. Third, testimony from
Michael Nugent, a state police narcotics officer, and from Alex King, a drug analyst,
demonstrated that police seized at least fourteen grams of methamphetamine at the
scene. Besides this seizure, King testified that substances contained in two vials
tested positive for methamphetamine. While he did not testify regarding the weight
or volume of the methamphetamine in the vials, it appears they contained amounts in
addition to the fourteen grams already identified. Fourth, as already noted, six grams
of the methamphetamine seized were contained in two plastic bags found on
Defendant’s person.
A review of relevant jurisprudence reveals that courts treat an incident of actual
distribution as indicative of an intent to distribute. In State v. Hunt, 568 So.2d 1104
(La.App. 2 Cir. 1990), writ denied, 580 So.2d 914 (La.1991), one of the convictions
at issue was for possession of methamphetamine with intent to distribute. The court
discussed the House factors and observed that a witness testified the defendant had
given her some methamphetamine and paraphernalia on the date of the offense. The
court treated this testimony as direct evidence of both distribution and the intent to
distribute. Id.
Thus, the State in the present case showed an instance of actual distribution and
that Defendant had, on his person, an amount of methamphetamine inconsistent with
personal use. Given the testimony regarding the price of methamphetamine,
Defendant had six hundred dollars worth of the drug on his person and a total of at
least fourteen hundred dollars worth was found at the scene. Comparing the evidence
adduced to the House factors and viewing the evidence in the light most favorable to
6 the prosecution, we find that the jury was not unreasonable in finding that Defendant
had the intent to distribute methamphetamine. For the reasons discussed, this
assignment lacks merit.
ASSIGNMENTS OF ERROR NUMBERS 2 AND 3:
In these assignments, Defendant complains that, in the habitual offender bill,
the State failed to designate which one of the convictions the habitual offender
adjudication was applied to. In cases such as this, where several convictions arise out
of a single episode, the failure to designate which of the sentences is being enhanced
renders the sentences indeterminate. State v. Small, 37,134, pp. 11-12 (La.App. 2 Cir.
6/27/03), 850 So.2d 1019, 1026, writ denied, 03-2202 (La. 1/30/04), 865 So.2d 75.
Pursuant to Small and State v. Freeman, 00-238, p. 12 (La.App. 3 Cir. 10/11/00), 770
So.2d 482, 490, writ denied, 00-3101 (La. 10/5/01), 798 So.2d 963, the appropriate
remedy is to vacate the habitual adjudications and sentences and remand for further
proceedings. See also State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991).
Therefore, Defendant’s remaining assignment, which concerns the denial of his
motion to reconsider sentence, is moot.
PRO SE ASSIGNMENT OF ERRORS NOS. 1, 5, 6 & 7:
Defendant’s first, fifth, sixth and seventh assignments of error all allege that
his trial counsel was ineffective. Each of these assignments makes assertions related
to trial strategy and the interaction, or lack thereof, between Defendant and trial
counsel. We find the current record to be insufficient to support these assignments.
These issues would be better addressed in the post-conviction process. On
7 application for post-conviction relief, the record can be more fully developed
regarding the issues Defendant seeks to raise. These assignments lack merit.
PRO SE ASSIGNMENT OF ERROR NO. 2:
In this assignment, Defendant alleges the jury selection process was tainted,
due to the use of an unsealed box. In the proceedings below, trial counsel cited
La.Code Crim.P. art. 408, which states, in pertinent part:
After the jury commission has selected the general venire, it shall lock and seal the general venire box and deliver it to the clerk of court, as the custodian thereof. Alternatively, the list of persons so selected may be retained in a form suitable for use by a properly programmed electronic device commonly known as a computer.
We also note La.Code Crim.P. art. 419, which may be more dispositive of the current
assignment. It states, in pertinent part:
A. A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.
When jury selection began, it quickly became apparent there was a defect in the
proceedings. The grand jury venire and petit jury venire lists were accidentally mixed
up. A short hearing was held to determine if the lists were tampered with in any
manner whatsoever. The testimony at that hearing indicated that the lists remained
in a sealed envelope.
Furthermore, Defendant does not allege that the venire was tampered with, but
argues he was prejudiced by the use of “an unsealed envelope and an unsealed box.”
Considering article 419, the lack of any allegation of tampering, and the testimony
8 that the petit jury envelope was sealed, Defendant has failed to demonstrate any
prejudice or reversible error.
For the reasons discussed, this assignment lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 3:
In his third pro se assignment, Defendant alleges his trial counsel had a conflict
of interest because he also represented alleged co-conspirator Ray Evans, who
eventually confected a plea agreement with the State and testified against Defendant
at trial. The current record, however, does not indicate that Defense counsel also
represented Ray Evans, nor does it illustrate that he did not. Further, the charging
instruments in the current record indicate Defendant was billed alone and the minutes
do not address the proceedings against Evans. Thus, the State apparently proceeded
against Evans separately and any details of his case would be outside the current
record. Therefore, based on the record before us, we see nothing indicating that this
assignment has merit. This issue may be addressed in the post-conviction process,
where a record containing the relevant information can be developed.
PRO SE ASSIGNMENT OF ERROR NO. 4:
In this assignment, Defendant complains the State’s experts were not credible;
however, much of his argument concerns trial counsel’s alleged failure to attack the
credibility of each of the two experts. This portion of the assignment is an ineffective
assistance of counsel claim and, like his other ineffectiveness claims, is not supported
by the record before us. This issue may be addressed in the post-conviction process.
Another part of the assignment is Defendant’s claim that one of the experts
should not have been qualified as such because he was not formally trained regarding
9 the “Nazi,” or “Birch,” method of methamphetamine manufacturing that was at issue
in this case. Defendant does not name the expert witness he is referring to, but the
context of his argument and related record page citation indicate that he is referring
to Sergeant Timothy Ledet of the Louisiana State Police.
Ledet testified that the bulk of his formal training addressed manufacturing
methods other than the Nazi method. However, he indicated that he had practical
experience with the latter method and was familiar with it. Ledet testified that he felt
more familiar with the Nazi method than with “Red P,” a method he was formally
schooled in. His testimony indicated the Nazi method is seen more in the field than
the Red P method is. Further, Ledet conducted informal classes on the Nazi method
for a state police troop.
It is well-settled that the decision to qualify an expert is within the discretion
of the trial court. Further, practical experience forms a sufficient basis to qualify a
witness as an expert, even in the absence of a formal, academic education. State v.
Wells, 99-628, (La.App. 3 Cir. 12/22/99), 755 So.2d 963, writ denied, 00-181(La.
9/15/00), 767 So.2d 39. In light of Wells, the trial court in the present case did not
abuse its discretion in accepting Ledet as an expert.
Defendant also complains that a second State expert was not credible, but he
does not name the expert and does not state why he was not credible. The other
expert qualified in this case was Alex King of the North Louisiana Criminalistics
Laboratory. The record, however, reveals that trial counsel stipulated to King’s
expertise. Thus, the issue was not preserved for review on appeal. Defendant also
complains that the police officers who testified at trial relied upon their memories
10 without referring to any recorded material to refresh their memories of the arrest,
which occurred approximately a year before the trial. We note that it is common for
witnesses to rely upon their memories of events. In State v. Mitchell, 94-521(La.App.
3 Cir. 11/2/94), 649 So.2d 569, the defendant challenged an officer’s recollections
and identification of him as the offender. This court noted that credibility
assessments are squarely within the province of the fact-finder and affirmed the
conviction. Similarly, we reject Defendant’s argument here.
PRO SE ASSIGNMENT OF ERROR NO. 8:
In this assignment, Defendant argues it was improper for him to be sentenced
by a judge other than the one who presided over his trial. While we have already
decided to remand, we note that it is not improper for the sentencing judge and the
trial judge in a case to be two different people. As a practical matter, retirement,
death, or an election loss may sometimes necessitate such a situation. La.R.S.
13:4209, State v. Allo, 525 So.2d 664 (La.App. 5 Cir.), writ denied, 527 So.2d 976
(La.1988). Therefore, this assignment lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 9:
In this assignment, Defendant initially argues the chain of custody was not
complete for physical evidence that the State introduced at trial. He concedes,
however, that a continuous chain of custody is not essential, provided the evidence
as a whole demonstrates that the exhibit at issue was the same item originally seized
by authorities. Further, he concedes the evidence in the present case demonstrated
that the evidence originally seized was, more probably than not, the same evidence
presented at trial. He also acknowledges that a defect in the chain of custody goes to
11 weight rather than admissibility. He argues, however, that the jury should have been
instructed regarding the “importance of the chain of custody for identification
procedures.”
Defendant cites no jurisprudence to support this proposition and our research
has revealed none. Further, during jury instructions, when the trial court explained
the use of exhibits, Defense counsel raised no objection and did not request the sort
of instruction that Defendant now seems to request. The lack of a contemporaneous
objection precludes Defendant from raising this issue on appeal. La.Code Crim.P. art.
841.
Defendant also claims that some of the photographs introduced at trial were
provided to Defense counsel only a day or two before trial; thus, counsel did not have
an opportunity to determine whether they had been retouched. At trial, Defense
counsel made essentially the same argument when objecting to a group of digital
photographs. We note, however, that a photograph is admissible when a witness, who
has personal knowledge of the item depicted, identifies it. State v. Leggett, 363 So.2d
434 (La.1978). In the present case, the items depicted in the contested photographs
were identified by Nugent. This assignment lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 10:
In this assignment, Defendant claims his sentence is excessive. However, as
discussed earlier, under the counsel-filed assignments, Defendant’s sentence is
vacated and remanded due to other errors. Thus, the current assignment is moot.
12 CONCLUSION:
Defendant’s convictions are affirmed. His habitual offender adjudications and
sentences, however, are vacated and the case is remanded for proceedings in
accordance with this opinion.