NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-306
STATE OF LOUISIANA
VERSUS
RICKY JOSEPH
************
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 75417-F HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
CONVICTIONS AND SENTENCES FOR POSSESSION OF MARIJUANA, LORTAB, AND METHADONE ARE AFFIRMED; CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE CRACK COCAINE IS VACATED; JUDGMENT OF GUILTY OF POSSESSION OF CRACK COCAINE IS ENTERED; MATTER REMANDED TO TRIAL COURT FOR SENTENCING IN ACCORDANCE HEREWITH.
Christopher Brent Coreil District Attorney Kathy Fontenot-Meyers Assistant District Attorney Post Office Drawer 780 Ville Platte, Louisiana 70586 (337) 363-3438 Counsel for: State of Louisiana Mark O. Foster Louisiana Appellate Project Post Office Box 2057 Natchitoches, Louisiana 71457 (318) 572-5693 Counsel for Defendant/Appellant: Ricky Joseph SULLIVAN, Judge.
Ricky Joseph appeals his convictions and sentences for possession with intent
to distribute crack cocaine, possession of marijuana, possession of Lortab, and
possession of methadone, as well as the trial court’s denial of his motion to suppress.
For the following reasons, we affirm Defendant’s convictions and sentences for
possession of marijuana, Lortab, and methadone but vacate his conviction for
possession with intent to distribute crack cocaine, enter a judgment of guilty of
possession of crack cocaine, and remand for sentencing on this conviction.
Facts and Procedural History
On December 18, 2007, the Ville Platte Police Department obtained a search
warrant and searched a barber shop (the shop) operated by Defendant. Pursuant to
the search, crack cocaine, marijuana, Lortab, and methadone were seized, and
Defendant was charged with possession with intent to distribute a Schedule II
controlled dangerous substance, crack cocaine, a violation of La.R.S. 40:967;
possession with intent to distribute a Schedule I controlled dangerous substance,
marijuana, a violation of La.R.S. 40:966; possession of a Schedule II controlled
dangerous substance, methadone, a violation of La.R.S. 40:967; possession of a
Schedule III controlled dangerous substance, Lortab, a violation of La.R.S. 40:968;
and possession of drug paraphernalia, a violation of La.R.S. 40:1023.
The matter was tried to a jury September 22-24, 2008. Testimony of two Ville
Platte Police officers, Sergeant Joseph Fontenot and Detective Ervin Pitre, established
that two or three weeks before his arrest, suspicions of Defendant selling drugs out
of the shop in Ville Platte arose in the Ville Platte Police Department when numerous
drug users were seen going in and out of the shop for brief periods of two to five
1 minutes. The police executed a controlled drug buy with a confidential informant
who entered the shop and purchased twenty dollars of crack cocaine, then obtained
a warrant to search the shop.
When the police entered the shop to execute the search warrant, they smelled
a strong odor of marijuana. They began searching the shop and found Alexis Roy,
who admitted that she sometimes stayed in a bedroom adjacent to the shop;
Defendant was not present. During the search, crack cocaine, a bag of marijuana, an
electronic scale, and a burning, half-smoked marijuana cigar were found in the
bedroom. An unlabeled prescription bottle that contained several pills and a partial
piece of suspected methadone was found in plain view near the prescription bottle in
the area near the barber chair. Neither the search warrant return nor the inventory
indicate how much crack cocaine was seized. After the search was conducted,
Ms. Roy was transported to the police department for questioning. Defendant turned
himself in later the same day.
Detective Pitre testified that Defendant was intoxicated and not in a condition
to speak when he turned himself in and that he was released to seek treatment.
Defendant left the medical facility where the police brought him without obtaining
treatment; he was arrested and brought back to the police department. Sergeant
Fontenot Mirandized Defendant on December 19, 2007, at 8:50 a.m. However,
Defendant was not willing to speak to him at that time. Sergeant Fontenot testified
that Defendant then wanted to “tell his side of the story,” at which time he was told
that if he wanted to talk without an attorney present he would have to tell them so.
Sergeant Fontenot then asked Defendant again if he wanted to talk without an
attorney present, and, after a while, Defendant said, “[Y]eah I want to.”
2 Sergeant Fontenot testified that during the interview, Defendant said that the
Lortabs found in the shop were his; however, he did not know anything about the
marijuana, methadone, or crack cocaine. Defendant further stated that he had a
prescription for the Lortab but did not know why the pills were in a bottle that did not
have a label. Additionally, he could not explain why several different pills were in
the same bottle. Defendant then admitted that he smoked marijuana. Lastly, Sergeant
Fontenot testified that he did not make any promises to Defendant regarding Ms. Roy
and that he never asked Defendant to lie. At the conclusion of Sergeant Fontenot’s
examination by the State, Defendant’s taped interview was played for the jury.
Detective Pitre testified that Defendant signed a Miranda Rights form he
presented to him at 9:25 a.m. on December 19, 2007, but that he did not interview
Defendant until 12:22 p.m. He believed this interview occurred after Defendant “sent
word to [him] thru the jail” that he wanted to talk. According to Detective Pitre,
Defendant agreed at that time to speak to him without an attorney being present, and
he did not make any promises to Defendant or coerce or force Defendant to speak to
him. Detective Pitre related that during the interview, Defendant said the drugs did
not belong to him or Ms. Roy. The tape of Detective Pitre’s interview with
Defendant was then played to the jury. Detective Pitre next testified that after
Defendant’s statement was taken, Defendant told him that all the narcotics found at
the shop were his and that Ms. Roy knew nothing about them.
Detective Pitre was shown photographs that were admitted into evidence
during the testimony of Sergeant Fontenot and identified what was depicted therein.
Two of the photographs are of a digital scale, and Detective Pitre testified that
marijuana and crack cocaine are both sold by weight and that digital scales are used
3 to weigh these drugs. Neither Sergeant Fontenot nor Detective Pitre testified
regarding who the confidential informant bought the crack cocaine from, and the
confidential informant did not testify.
Regarding the analysis of several items found at the shop, Amanda Hebert, an
expert in forensic chemistry and an employee of the Acadiana Crime Lab, testified
that: 1) two rock-like materials submitted to the lab were crack cocaine with a net
weight of 1.7 grams, and 0.06 grams, respectively; 2) green vegetable matter with a
gross weight of eleven grams was marijuana; 3) three white tablets were methadone;
4) the cigar contained marijuana; 5) an oblong green tablet found in a prescription
bottle contained ten milligrams of hydrocodone and 650 milligrams of
acetaminophen; and 6) two pieces of an oblong blue tablet contained ten milligrams
of hydrocodone and 500 milligrams of acetaminophen. Hebert testified that
hydrocodone is also known as Lortab.
Defendant testified at the hearing on his motion to suppress regarding the
statements he made to the police but did not testify at trial. His testimony will be
discussed in conjunction with our review of his claim that the trial court erred in
denying his motion to suppress.
On September 24, 2008, Defendant was convicted by the jury of possession
with intent to distribute crack cocaine and possession of marijuana, Lortab, and
methadone. Thereafter, the charge of possession of drug paraphernalia was
dismissed. Defendant was sentenced as follows: 1) possession with intent to
distribute crack cocaine—eight years at hard labor, with the first two years of the
sentence to be served without benefit of probation, parole, or suspension of sentence;
2) possession of marijuana—six months in parish jail, to run concurrently with the
4 “possession sentences”; 3) possession of Lortab—two years at hard labor, to run
concurrently with the sentence imposed for possession of methadone; 4) possession
of methadone—two years at hard labor, to run consecutively with the sentence for
possession with intent to distribute crack cocaine. At the conclusion of the
sentencing, defense counsel orally moved for reconsideration of Defendant’s
sentence, which was denied.
Defendant appealed his convictions and sentences. On appeal, he assigns as
error the denial of a motion to suppress he filed the morning of trial and the
sufficiency of the evidence on all of his convictions.
Sufficiency of the Evidence
Defendant contends there was insufficient evidence to convict him of the
offenses.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, __
U.S. __, 128 S.Ct. 537 (2007).
With regard to Defendant’s conviction of possession with intent to distribute
crack cocaine, the State was required to prove beyond a reasonable doubt that he: 1)
5 intentionally possessed crack cocaine; 2) had the specific intent to distribute the crack
cocaine, La.R.S. 40:967(A)(1); and 3) had guilty knowledge, i.e., knew he had the
illegal drugs in his possession. State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08),
981 So.2d 881.
Intent is a fact which may be inferred from circumstantial evidence. Factors which are useful in determining whether the circumstances are sufficient to prove an intent to distribute cocaine or a controlled dangerous substance (“CDS”) include (1) whether the Defendant ever distributed or attempted to distribute a CDS; (2) whether the CDS was in a form usually associated with distribution to others; (3) whether the amount was such as to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant’s possession was inconsistent with personal use only; and (5) the presence of paraphernalia, such as baggies or scales, evidencing an intent to distribute. Testimony of street value and dosage units of the drug is also relevant to the issue of intent.
State v. Samuel, 08-100, p. 10 (La.App. 3 Cir. 5/28/08), 984 So.2d 256, 263-64, writs
denied, 08-1419, 08-1487 (La. 2/20/09), 1 So.3d 493, 495 (quoting State v. Spencer,
29,993, pp. 4-5 (La.App. 2 Cir. 1/21/98), 707 So.2d 96, 100, writ denied, 98-627 (La.
8/28/98), 722 So.2d 294) (citations omitted).
As to Defendant’s convictions for possession of marijuana, Lortab, and
methadone, the State was required to prove that he possessed marijuana, Lortab, and
methadone and had guilty knowledge. See State v. Carter, 07-1237 (La.App. 3 Cir.
4/9/08), 981 So.2d 734, writ denied, 08-1083 (La. 1/9/09), 998 So.2d 712.
Defendant’s statements to Detective Pitre and Sergeant Fontenot were played
for the jury and the Miranda Rights forms were introduced into evidence during the
trial, but the tape containing Defendant’s statements was not introduced into
evidence. Therefore, we have not considered those statements in our review of the
sufficiency of the evidence.
6 The jury’s verdicts indicate the jury believed Detective Pitre’s testimony that,
while Defendant stated in his taped statement that the drugs did not belong to him or
Ms. Roy, Defendant told him after the taped statement was completed that all the
drugs found at the shop were his and that Ms. Roy knew nothing about them. This
testimony, coupled with the evidence seized at the shop and the jury’s having listened
to Defendant’s taped statements at trial, was sufficient to prove beyond a reasonable
doubt to a rational jury that Defendant possessed crack cocaine, marijuana,
methadone, and Lortab.
The same is not true with respect to whether the State proved Defendant had
the intent to distribute the crack cocaine. The digital scale seized pursuant to the
search warrant and Detective Pitre’s testimony that crack is sold by weight is the only
evidence the State presented on this issue. The State notes in its brief that razor
blades were found in the shop and asserts that those “are generally used to cut up the
cocaine for resale.” We do not consider the two razor blades seized in the shop as an
indication that Defendant distributed cocaine because Detective Pitre testified that
razor blades are not illegal and that he knew Defendant used razor blades to cut hair.
Furthermore, the razor blades were not tested by the crime lab.
Review of pertinent jurisprudence leads us to conclude that possession of a
digital scale and two rocks of crack cocaine weighing less than two grams, is
insufficient to establish Defendant had the specific intent to distribute crack cocaine.
See 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 (which reviews expert testimony that possession of
one or two rocks of crack cocaine is indicative of possession for use).
7 Having found that the evidence does not support the jury’s conviction of
possession of crack cocaine with the intent to distribute, we can modify that verdict
and render a judgment of conviction of a lesser included responsive offense if the
evidence supports such a conviction. La.Code Crim.P. art. 821(C); see also State v.
Teague, 04-1132 (La.App. 3 Cir. 2/2/05), 893 So.2d 198. The responsive verdicts for
possession with intent to distribute crack cocaine are attempted possession with intent
to distribute crack cocaine, possession of crack cocaine, attempted possession of
crack cocaine, and not guilty. La.Code Crim.P. art. 814(49). The evidence is
insufficient to convict Defendant of attempted possession with intent to distribute
crack cocaine but is sufficient to prove that he possessed crack cocaine.
For these reasons, Defendant’s conviction for possession with intent to
distribute crack cocaine is vacated, a judgment of guilty of possession of crack
cocaine is entered, and the matter is remanded to the trial court for resentencing
Defendant in accordance with this holding.
Motion to Suppress
Defendant contends that the trial court erred in denying his motion to suppress
the two taped statements he made to Sergeant Fontenot and Detective Pitre. He
asserts that the issues presented by his motion are whether his statements were
obtained in violation of his constitutional right to counsel, whether the State proved
his statements were freely and voluntarily made, and whether the police scrupulously
honored his right to remain silent without an attorney present. Because Defendant did
not argue to the trial court that his statements were obtained in violation of his right
to counsel or that his right to remain silent was not scrupulously honored, those
grounds cannot be raised for the first time in this court. State v. Jennings, 07-150
8 (La.App. 3 Cir. 5/30/07), 958 So.2d 144, writ denied, 07-1460 (La. 1/7/08), 973
So.2d 731. See also State v. Kroner, 09-939 (La. 6/19/09), 10 So.3d 1231.
Accordingly, we consider only whether his statements were free and voluntary.
It is hornbook law that before the State may introduce a confession into evidence, it must demonstrate the statement was free and voluntary and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La.Rev.Stat. § 15:451; La.Code Crim. Proc. art. 703(D); State v. Simmons, 443 So.2d 512, 515 (La.1983). If a statement is a product of custodial interrogation, the State must make a threefold showing: first, that the person was advised before questioning of his right to remain silent; second, that the person was told that any statement he makes may be used against him; and, third that the person was counseled that he has aright [sic] to an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). When claims of police misconduct are raised, the State must specifically rebut the allegations. State v. Vessell, 450 So.2d 938, 942-943 (La.1984). A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the trial court’s determination. State v. Benoit, 440 So.2d 129, 131 (La.1983). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. Vessell, 450 So.2d at 943. When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Lavalais, 685 So.2d at 1053; State v. Lewis, 539 So.2d 1199, 1205 (La.1989).
State v. Holmes, 06-2988, p. 34 (La. 12/2/08), 5 So.3d 42, 67-68, cert. denied, U.S.
, S.Ct. (2009).
Defense counsel made an oral motion to suppress Defendant’s statements the
morning jury selection was to commence. She moved to suppress his recorded
statements, asserting that any admissions by him therein were made because he felt
those admissions were what the police wanted to hear and because he did not want
Ms. Roy to “deal with those charges so he took them upon himself.” Defense counsel
subsequently noted that there were four Miranda Rights forms and pointed out that
when Defendant signed the December 18, 2007 form and the December 19, 2007
9 8:50 a.m. form, he was unwilling to answer questions without an attorney. Counsel
continued, claiming that while Defendant signed the December 19, 2007 9:25 a.m.
form indicating he was willing to answer questions without an attorney, he did so
because he was promised that if he admitted to the charges Ms. Roy would not be
prosecuted.
Defendant testified that on December 19, 2007, after he was in custody, he was
approached by Sergeant Fontenot, that Sergeant Fontenot went over his Miranda
rights with him, and that he told Sergeant Fontenot he was not willing to answer any
questions. He next testified that he was again approached by Sergeant Fontenot and
shown a rights form dated December 19, 2007, at 9:25 a.m. According to Defendant,
he informed Sergeant Fontenot he was not willing to speak to him then; however,
Sergeant Fontenot checked “yes” on the rights form and questioned him about his
willingness to give a statement. He testified that he was pressured to give a
statement, explaining that he was told Ms. Roy would be charged with possession of
the narcotics found in the shop if he did not, that he loved her and believed she was
pregnant with his child, and that she pleaded with him to admit that the drugs were
his.
Defendant further testified that he was shown another Miranda Rights form
dated December 19, 2007, at 12:22 p.m. He testified that he did not check “yes” or
“no” for the question, “[A]re you willing to answer questions at this time without an
attorney” and that someone else checked “yes” on the form. He also denied checking
“no” for the question, “[H]ave any threats or promises been made to you or has any
pressure of any kind been used to get you to answer questions or to give up any of
10 your rights.” Defendant then testified that he gave a statement because Detective
Pitre told him Ms. Roy would not be charged if he did.
On cross-examination, Defendant reiterated that he told the police he did not
want to give a statement but did so because the police promised Ms. Roy would be
released if he took “complete ownership of the narcotics.” He further testified that
he told Detective Pitre, “[W]hat do y’all want . . . to hear[?] I said do you promise
me if I take complete ownership of everything that was found in the shop that Ms.
Roy was gonna be let go and he told me yes.” Defendant asserted that Detective Pitre
had a vendetta against him and was out to “get” him and that Detective Pitre was
telling the community that he was “sleeping with” Detective Pitre’s fourteen-year-old
cousin.
Defendant also claimed that he did not know how the illegal drugs got into the shop.
At the suppression hearing, Detective Pitre testified that Defendant was read
his Miranda rights prior to his statements being taken. He further testified that on the
first recording Defendant was asked if he was advised of his Miranda rights and he
indicated that he had been. Detective Pitre then testified that no promises were made
to Defendant. Additionally, he testified that at no time did Defendant tell him that the
police were making him lie and were pressuring or coercing him to give a statement.
On cross-examination, Detective Pitre denied that he made any promises to
Defendant. At the conclusion of the hearing, the trial court denied the motion.
Sergeant Fontenot did not testify at the hearing on Defendant’s motion to
suppress, and Defendant asserts that the State made a strategic choice not to call any
police officer other than Detective Pitre at the suppression hearing to refute his
claims. Citing State v. Sherman, 04-1019 (La. 10/29/04), 886 So.2d 1116, he
11 contends that this court’s review of the merits of the motion to suppress is limited to
the evidence adduced at the hearing on the motion to suppress and cannot include
evidence at the trial on the merits which generally is allowed. We need not address
the ramifications of Sherman because Defendant’s claims can be resolved on the basis
of the evidence submitted at the hearing on the motion to suppress.
Defendant testified at the hearing that he gave statements to the police because
they promised Ms. Roy would not be charged. We have listened to his taped
statements, and they do not contain any promises by the police. However, Defendant
did state in his first statement, “[I]f you want me to take the charge I’m gon [sic] take
the charge.” Assuming the police told Defendant that Ms. Roy would be prosecuted
if he did not admit the drugs were his, those statements would not be considered
coercive or cause his statements to be involuntary because: 1) Ms. Roy was present
in the shop when the search warrant was executed; 2) she admitted that she stayed
there with Defendant at times; 3) the marijuana cigar was burning when the search
warrant was executed; and 4) the statement that she would be charged was a statement
of likely fact, not a threat. See State v. Wilms, 449 So.2d 442 (La.1984); State v.
Brown, 504 So.2d 1025 (La.App. 1 Cir.), writ denied, 507 So.2d 225 (La.1987); State
v. Trotter, 37,325 (La.App. 2 Cir. 8/22/03), 852 So.2d 1247, writ denied, 03-2764
(La. 2/13/04), 867 So.2d 689; State v. Massey, 535 So.2d 1135 (La.App. 2 Cir. 1988).
Considering only the evidence presented at the hearing on Defendant’s motion,
we find the trial court did not err in denying the motion.
Disposition
Defendant’s convictions for possession of marijuana, Lortab, and methadone
are affirmed; however, his conviction for possession with intent to distribute crack
12 cocaine is vacated, a judgment of guilty of possession of crack cocaine is entered, and
the matter is remanded for sentencing in accordance with this court’s ruling.
CONVICTIONS AND SENTENCES FOR POSSESSION OF MARIJUANA, LORTAB, AND METHADONE ARE AFFIRMED; CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE CRACK COCAINE IS VACATED; JUDGMENT OF GUILTY OF POSSESSION OF CRACK COCAINE IS ENTERED; MATTER REMANDED TO TRIAL COURT FOR SENTENCING IN ACCORDANCE HEREWITH.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.