STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-76
STATE OF LOUISIANA
VERSUS
MARQULE CRAFT
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 07-232799 HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Chief Judge Ulysses Gene Thibodeaux, J. David Painter, and Shannon J. Gremillion, Judges.
AFFIRMED.
Thibodeaux, Chief Judge, concurs in part and dissents in part and assigns written reasons.
Honorable J. Phillip Haney, District Attorney Sixteenth Judicial Court Angela B. Odinet, Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana
Beth S. Fontenot Louisiana Appellate Project P. O. Box 3183 Lake Charles, LA 70602 (337) 491-3864 COUNSEL FOR DEFENDANT/APPELLANT: Marqule Craft Marqule Craft Riverbend Detention Center 9450 Highway 65 South Lake Providence, LA 71254 PRO SE Marqule Craft GREMILLION, Judge.
Defendant, Marqule Craft, was charged by bill of information with
possession of more than sixty, but less than two thousand, pounds of marijuana in
violation of La.R.S. 40:966(F)(1) and La.R.S. 14:27. A jury convicted him of
those offenses. Defendant was sentenced to serve seven years at hard labor. He
now appeals his conviction and sentence. We affirm.
FACTS
Deputy Jacques Leblanc of the St. Martin Parish Sheriff‘s Office conducted
a traffic stop on Interstate 10 at mile marker 114 on March 13, 2007, at around
1:48 p.m, when he observed a vehicle traveling in the left lane at approximately
sixty miles per hour in a posted seventy mile-per-hour speed zone. The deputy
observed numerous vehicles trying to pass the vehicle, and the stop was based on
the driver impeding the flow of traffic.
Defendant, the driver and sole occupant of the vehicle, could not produce a
driver‘s license. Deputy Leblanc asked him if he was driving under suspension,
and Defendant replied in the affirmative. Defendant understood the reason for the
stop, and he stated he was in a rented vehicle. When Deputy Leblanc followed
Defendant to the vehicle to peruse the rental paperwork, he immediately smelled a
strong odor of marijuana coming from the passenger side.
The rental paperwork indicated that the vehicle was overdue for return,
could only be operated in Texas, was rented by Geovonie Diez, and no additional
drivers were allowed. Deputy Leblanc confirmed the suspension of Defendant‘s
license via computer, and he requested backup because of the numerous criminal
indicators. Deputy Leblanc described Defendant as overly nervous, with shaking
hands and heavy breathing.
1 Deputy Leblanc explained the consent to search form to Defendant, who
indicated he understood it and could read and write English. Defendant and
Deputy Leblanc signed the form.
The search revealed a black duffle bag, a green duffle bag, and a black
suitcase in the trunk. The black bag contained numerous grey duct-taped packages
that Deputy Leblanc believed to be marijuana. Deputy Leblanc advised Defendant
he would be placed under arrest, and Defendant put his hands behind his back.
Deputy Leblanc then read Defendant his Miranda rights from a card in his pocket.
Defendant indicated that he understood his rights and said he would like to
cooperate.
Under cross-examination at trial, Deputy Leblanc testified that he did not
have Defendant read the Miranda rights back to him, and he did not ask Defendant
if he could hear him. Based on what Defendant said and his body language,
Deputy Leblanc determined Defendant ―appeared to be an every day person,‖ not
under the influence of alcohol. Defendant never indicated he could not hear or did
not understand his Miranda rights.
Defendant told Deputy Leblanc and his partner, Deputy Darryl Vernon, the
bundles were marijuana belonging to his brother. He said he worked for his
brother, and he purchased the marijuana with school tuition money. Defendant
said he was transporting the marijuana for his brother. The deputies took
Defendant to the St. Martin Parish Sheriff‘s Office.
At the Sheriff‘s Office, Defendant signed a ―Your Rights‖ form after Deputy
Leblanc read it to him. This form acknowledged his Miranda rights and included a
waiver of those rights.
2 Agent Chad Hazelwood, task force agent for the Drug Enforcement
Administration of the Department of Justice, was called to help in this
investigation. When he arrived at the Sheriff‘s Office, he was told Deputy Leblanc
had already read Defendant his Miranda rights. Agent Hazelwood understood
Defendant had already given a confession.
Defendant told Agent Hazelwood and Agent Jerry Stutes that ―he was
basically a mule . . . trafficking a load of [m]arijuana for a guy he identified as
Geovonie,‖ who was traveling in front of him when he was stopped. Defendant
understood what he was doing and voluntarily gave the information. Agent
Hazelwood did not know how long Defendant had been in the secured room where
he interviewed him, and he did not know if Defendant had been given anything to
eat or allowed to use the restroom. Defendant was awake, sober, and fully
coherent throughout the interview.
Defendant presented no witnesses on the motion to suppress. The trial court
determined:
[Defendant‘s] statement was made freely and voluntarily and without coercion, and with the full understanding of his rights to remain to [sic] silent, and the defendant waived his rights [sic] to remain silent and gave a statement to the police that was made freely and without duress, and the statement is admissible in the trial of the defendant.
Deputy Leblanc repeated his testimony to the jury. He told the jury that
Defendant signed the consent to search form and gave verbal permission for the
search of the vehicle, that he placed Defendant under arrest, that he read Defendant
his Miranda rights, and that Defendant stated he understood his rights. Defendant
told Deputy Leblanc the duffle bags contained approximately one hundred pounds
of marijuana. Defendant signed the rights form and waiver of rights at the
Sheriff‘s Office and again indicated he understood those rights.
3 ASSIGNMENT OF ERROR NUMBER ONE
Defendant argues the trial court erred in admitting statements he made to
police and that the State failed to prove his statements were freely and voluntarily
made with a clear understanding of his Miranda rights. He states that ―it is
doubtful‖ he was able to adequately hear the reading of his rights and understand
them while standing next to interstate highway traffic. Further, he argues that the
State failed to show his valid waiver of Miranda rights regarding the statements he
made after arrival at the Sheriff‘s Office.
It is well-settled the ruling in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602 (1966)] ―protects an individual‘s Fifth Amendment privilege during incommunicado interrogation in a police-controlled atmosphere.‖ State v. Leger, 05–0011, p. 13 (La.7/10/06), 936 So.2d 108, 124, citing State v. Taylor, 01–1638, p. 6 (La.1/14/03), 838 So.2d 729, 739. In Miranda, the Supreme Court defined ―custodial interrogation‖ as ―questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.‖ Id., 384 U.S. at 444, 86 S.Ct. at 1602. Thus, before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. La.Code Crim. Proc. art. 703(D); La. R.S. 15:451; [State v.] Lee, 05–2098 [p. 15 (La. 1/16/08), 976 So.2d 109,] 122. The admissibility of a confession is a question for the trial court. Id. As with the testimony relative to the physical evidence, the trial court‘s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant‘s confession are accorded great weight and will not be disturbed unless they are not supported by the evidence. State v. Benoit, 440 So.2d 129, 131 (La.1983). Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each situation. Id.
State v. Hunt, 09-1589, pp. 11-12 (La. 12/1/09), 25 So.3d 746, 754-55.
Louisiana Code of Criminal Procedure Article 703(G) requires the State ―to
introduce evidence concerning the circumstances surrounding the making of the
confession or statement for the purpose of enabling the jury to determine the 4 weight to be given the confession or statement.‖ The article also allows a
defendant to introduce the same evidence.
While the noise level standing next to an interstate highway is undoubtedly
significant, nothing in the record suggests it prevented Defendant from
understanding or voluntarily waiving his rights. Defendant told Deputy Leblanc he
could read and write English. Defendant signed the consent to search form. He
told Deputy Leblanc he understood each of his Miranda rights and said he would
like to cooperate. No evidence was presented, either during consideration of the
motion to suppress or at trial, to show traffic noise or anything else prevented
Defendant from understanding his rights and/or knowingly and voluntarily waiving
them.
The State showed that Defendant was presented with his Miranda rights in
written form at the Sheriff‘s Office. He signed the form in two places, first
indicating that he understood his rights and then indicating that he waived them.
He was placed in a room where Agent Hazelwood questioned him after being told
Deputy Leblanc had read Defendant his rights.
The State met its burden to ―affirmatively show that the confession or
statement was freely and voluntarily given and was not made under the influence
of fear, duress, menaces, threats, inducements or promises.‖ State v. Bordelon, 597
So.2d 147, 149 (La.App. 3 Cir.), writ denied, 600 So.2d 678 (La. 1992). The
record contains no indication of the length of time that passed between
Defendant‘s signing the waiver of his rights and his questioning by Agent
Hazelwood. Defendant presented no evidence at trial to support his argument on
appeal that such a lengthy time passed that a new advisement of his rights was
necessary. The State showed Defendant was properly advised of and waived his
5 rights, and Defendant presented no evidence to refute the waiver of his rights.
Nothing at the hearing or at trial suggests Defendant was held in the room for an
inordinate time or under circumstances of duress. This assignment of error lacks
merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant contends the failure to preserve the DVD recording of the traffic
stop and his statement to Agent Hazelwood prevented him from fully confronting
the evidence used against him. Deputy Leblanc‘s vehicle had an audio/video
camera that recorded onto a hard drive and a disc. After seventy-two hours, the
hard drive automatically erased the information. Deputy Leblanc believed the
camera was recording onto the disc at the time of the stop, and he intended to
videotape the stop as he normally did. However, shortly before trial, he learned
that the equipment did not function properly and did not record. Deputy Leblanc
testified that the video would have shown the circumstances to which he testified
had it worked properly. The purportedly blank video was introduced into
evidence. Although an attempt was made to play it to the jury, the court reporter
indicated that she was not familiar with the recording program. Defendant had no
other way to play the DVD.1
The room where Defendant was interviewed at the Sheriff‘s Office was also
equipped with video and audio capabilities, but no recording was made. Deputy
Leblanc put him in the secured room and left him there.
When Agent Hazelwood arrived at the Sheriff‘s Office, he was briefed ―as to
the stop, the details of the stop, and the events that had led up to where they were
at that moment,‖ and he was introduced to Defendant. Agent Hazelwood told the
1 This court was also unable to view the video. 6 jury that he was brought into the case, based on Defendant‘s cooperation, to try to
identify persons that the drugs may have been going to, the extent of Defendant‘s
involvement, and from where the drugs originated. Agent Hazelwood was not
concerned with a video or audio taped statement because he was not trying to
obtain a confession, but to see where the drugs were going.
[A]bsent a showing of prejudice, a conviction will not be overturned on the ground that the best evidence was not produced. [State v. Gaskin, 412 So.2d 1007 (La.1982)]. It has been held that the testimony of one who hears a confession is always best evidence of it. People v. Vaughn, 155 Cal.App.2d 596, 318 P.2d 148 (1957). Likewise, testimony by participants of what was said in a conversation have been held as equally admissible as a tape of the conversation to establish what was said. United States v. Gonzales– Benitez, 537 F.2d 1051 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976); United States v. Rose, 590 F.2d 232 (7th Cir.1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979). Louisiana courts have allowed officers to testify in the place of playing taped video or audio recordings of confessions to the jury.
State v. McGuffie, 42,069, p. 8 (La. App. 2 Cir. 8/1/07), 962 So.2d 1111, 1117, writ
denied, 07-2033 (La. 2/22/08), 976 So.2d 1283. The McGuffie defendant argued
that the trial court erroneously allowed a police officer‘s testimony about his
statements where the tapes of those statements had been lost. The second circuit
noted, ―The law does not require the production of nonexistent portions of a
confession or portions which cannot be recalled.‖ Id. at 1116 (citing State v.
Arnold, 466 So.2d 520 (La.App. 3 Cir.), writ denied, 470 So.2d 124 (La.1985)).
Defendant had ample opportunity at the hearing on the motion to suppress
and at trial to confront and cross-examine Deputy Leblanc and Agent Hazelwood
about any relevant evidence. Certainly a video of the stop and the interview would
have been helpful evidence. Its unavailability, however, does not create a
Confrontation Clause issue where full cross-examination occurred, and the jury
7 heard the testimony of those who had witnessed Defendant‘s confession. This
assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE
Defendant reserved his right to file a supplemental brief regarding the trial
court‘s response to a question posed by the jury during deliberations. On February
15, 2012, this court ordered the court reporter to transcribe the portion of the jury
trial regarding this issue. The supplemental record was filed on March 6, 2012.
Defendant‘s counsel notified this court by letter dated March 14, 2012, that she
would not be filing a supplemental brief. Thus, this issue is deemed abandoned.
Uniform Rules—Courts of Appeal, Rule 2-12.4.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
As a pro se assignment of error, Defendant asks whether one can ―block
traffic when there is no traffic in the vicinity?‖ Deputy Leblanc testified at length
about how he observed Defendant near the 110 mile marker on Interstate 10
traveling in the left lane at 60 miles per hour, impeding the flow of other vehicles
that were unable to pass Defendant. The traffic stop occurred near the 114 mile
marker, after Deputy Leblanc observed Defendant‘s driving for approximately four
miles.
Nevertheless, Defendant claims on appeal ―there was no traffic in his
general vicinity for him to block.‖ Defendant did not raise this issue at trial, and
he cannot raise it for the first time on appeal. La.Code Crim.P. art. 841. This
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
Defendant further argues ―[d]efense counsel should have moved to suppress
the evidence that resulted from the search‖ on grounds that raw marijuana has no
8 strong odor, and ―[f]ailure to do so would constitute ineffective assistance.‖ He
further argues that ―denial of such a motion would be reversible error, showing that
defendant was prejudiced by said ineffectiveness.‖
The record shows that defense counsel did file a motion to suppress the
marijuana on grounds it was illegally seized without a warrant or consent, and no
probable cause existed for the traffic stop. At trial, defense counsel pointed out
that the marijuana found in the trunk was ―taped up like Fort Knox‖ so that it could
not be smelled. The record does not reveal that Defendant requested a
demonstration to the jury to show the marijuana had no odor, and it does not show
the trial court prevented such a demonstration from taking place. Indeed, in his
closing argument, defense counsel said, ―I took one of the blocks right there and
gave it to the deputy. I held it in front the jury. I said, ‗Can you smell it?‘‖ The
record does not reflect a factual basis for this issue. Ultimately, the jury found the
law enforcement officers‘ testimony more credible than Defendant‘s self-
proclaimed ability to conceal illegal contraband. We see no reason to disturb the
jury‘s finding, and we assign no merit to this argument.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
Defendant argues his seven-year sentence is excessive. Louisiana Code of
Criminal Procedure Article 881.1(A) and (E) requires a defendant to make or file a
motion to reconsider his sentence within thirty days of imposition of the sentence.
A defendant who fails to make or file such a motion is precluded from raising any
objection to the sentence on appeal. State v. White, 03-1535 (La.App. 3 Cir.
4/28/04), 872 So.2d 588; State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02),
829 So.2d 1166, writ denied, 02-3230 (La. 10/10/03), 855 So.2d 324. Defendant
did not make or file a motion to reconsider his sentence in the trial court.
9 Nevertheless, we review Defendant‘s argument as a bare claim of excessiveness.
State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.
This court has set out a standard to be used in reviewing excessive sentence
claims:
La.Const. art. I, § 20 guarantees that, ―[n]o law shall subject any person to cruel or unusual punishment.‖ To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 [p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.
To decide whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, this court has held:
[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. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. 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.‖ State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). 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. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.
10 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.
Applying the Smith factors, the nature of Defendant‘s offense was not
violent, but it involved a large amount–approximately one hundred pounds–of
marijuana. The trial court stated that Defendant‘s presentencing investigation
report revealed one prior conviction for aggravated assault. However, the penalty
for aggravated assault does not include imprisonment at hard labor, and therefore,
is not a felony. La.R.S. 14:2(A)(4); 14:37(B). Thus, this is Defendant‘s first
felony conviction. The trial court sentenced Defendant to seven years at hard labor
and stated that it was an appropriate sentence considering the substantial amount of
marijuana involved.
The possible sentencing exposure for possession of sixty to two thousand
pounds of marijuana is five to thirty years in prison and a fine of fifty to one
hundred thousand dollars. La.R.S. 40:966(F)(1). The possible exposure for an
attempted offense is half the largest fine and/or half the longest term of
imprisonment for the completed offense. La.R.S. 14:27. Thus, the sentencing
range here is zero to fifteen years and/or a fine of fifty thousand dollars.
Given the large amount of marijuana Defendant was convicted of hauling
across our state, this mid-range sentence neither shocks our conscience nor
represents an abuse of the trial court‘s discretion.
DECREE
Defendant‘s conviction and sentence are affirmed.
11 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, concurring in part and dissenting in part.
I agree with the majority that the defendant’s conviction should be
affirmed. I disagree with the imposition of a seven-year sentence at hard labor.
The cases relied upon by the majority are inapposite and do not
support its position. State v. White, 11-1059 (La.App. 3 Cir. 4/4/12), 87 So.3d 318
involved, as the majority acknowledges, a long-time felony offender. The
defendant in White had six previous felonies. Here, this defendant has no prior
felony convictions. In State v. Brown, 02-1382 (La.App. 3 Cir. 4/2/03), 842 So.2d
1181, writ denied, 03-1224 (La. 11/7/03), 957 So.2d 491, the defendant admitted
ownership of the marijuana. In fact, Brown referenced the comments of the trial
judge who said “this would be different if it was just a possession with intent to
distribute that, in a weak moment, you got some marijuana and transported it for
financial gain. This is, you grew this marijuana which took an extended period of
time and it involved more than just one weak moment.” Id. at 1184. In this case,
the defendant was charged with possession of marijuana, not possession with intent
to distribute. Second, in this case, unlike Brown, the defendant did not grow the
marijuana nor did he own it. He was simply acting as a “mule” in transporting the
marijuana for someone else.
The seven-year sentence is not proportionate to the severity of this
defendant’s crime and makes no meaningful contribution to any acceptable goal of punishment. It simply results in adding to Louisiana’s reputation as having the
most prisoners per capita of any area in the world and the most prisoners with the
longest sentences.
For the foregoing reasons, I respectfully dissent in part.