STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-543
STATE OF LOUISIANA
VERSUS
SAMMIE DAVIS
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. 04-3590 HONORABLE PATRICIA C. COLE, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
********** Thibodeaux, C.J., dissents in part and assigns written reasons.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and J. David Painter, Judges.
CONVICTION AFFIRMED; SENTENCE AMENDED WITH INSTRUCTIONS AND AFFIRMED AS AMENDED.
A. Bruce Rozas P.O. Box 280 Mamou, Louisiana 70554 Counsel for Defendant-Appellant: Sammie Davis
Douglas L. Hebert, Jr. DISTRICT ATTORNEY John E. Demoruelle ASSISTANT DISTRICT ATTORNEY P.O. Drawer 839 Oberlin, Louisiana 70655 Counsel for Plaintiff-Appellee: State of Louisiana PAINTER, Judge
Following a trial by jury, Defendant, Sammie Davis, was convicted of
possession with intent to distribute cocaine, in violation of La.R.S. 40:967(A)(1). He
was sentenced to twenty years at hard labor to run consecutively to any sentence he
might be serving at the time of the present conviction. Defendant was advised that
he was not eligible for diminution of sentence. Defendant now appeals, asserting the
four assignments of error discussed below. For the following reasons, we affirm the
Defendant’s conviction and amend the Defendant’s sentence to delete the statement
denying diminution eligibility with instructions to the trial court to make an entry in
the minutes to reflect this change. The sentence is affirmed as amended.
FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2004, Roger Christian, a deputy with the Allen Parish Sheriff’s
Office, received information from a confidential informant that Defendant was selling
cocaine. According to the informant, Defendant was driving a gray, four-door
Mercury Sable. The informant further told the deputy that both the Defendant and the
vehicle could be found in the parking lot of a convenience store in Oakdale,
Louisiana, and that the cocaine was in a blue tin can inside the car. Acting on this
information, Deputy Christian went to the specified location where he found the
Mercury Sable, as described by the informant, parked along the roadway. Deputy
Christian could see a blue tin can on the front seat of the vehicle. Defendant was
standing approximately twenty feet away from the vehicle. Defendant told Deputy
Christian that the vehicle belonged to his girlfriend, Tara Williams, but that he was
responsible for the vehicle. Defendant denied permission to search the vehicle, so
Deputy Christian obtained a search warrant. Subsequent to the search, Deputy
Christian found ten rocks of crack cocaine in the blue tin can inside the vehicle.
1 Approximately one week later, Defendant was arrested and charged with one
count of possession of a controlled dangerous substance, Schedule II, with intent to
distribute, in violation of La.R.S. 40:967(A)(1). Trial by jury commenced on
November 16, 2004, at which time Defendant made oral motions to continue trial and
to suppress evidence. The motions were denied. The jury found Defendant guilty as
charged. Defendant was sentenced to twenty years at hard labor to be served
consecutively with any sentence which he may have been serving at that time.
On appeal, Defendant raises four assignments of error: (1) the trial court erred
when it denied his oral motions to continue trial and to suppress evidence; (2) the trial
court erred when it refused to instruct the jury regarding one of the State’s witnesses
who failed to appear; (3) the trial court erred when it allowed other crimes evidence
to be presented at trial without a proper Prieur hearing; and (4) the evidence was
insufficient to sustain the verdict.
DISCUSSION
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we note that, at
sentencing, the trial court stated as follows:
Mr. Davis, you’re not eligible for diminution of sentence, for good time under Louisiana Revised Statute 15:571.3C because you have been convicted one or more times of violations of the Louisiana Controlled Dangerous Substance Law, which are felonies. That is also in accordance with law.
The sentencing minutes characterize the trial court’s statement regarding
diminution of sentence as follows: “the court informs the Defendant that he is not
eligible for diminution of sentence for good time in accordance with LSA R.S.
15:571.3(C)(1)(r).”
2 This statement by the trial court was not merely an advisement, but was an
actual denial of eligibility for diminution of sentence. In State v. Narcisse, 97-3161,
p. 1 (La. 6/26/98), 714 So.2d 698, 699, the supreme court stated the following
regarding a trial court’s authority to deny eligibility for diminution of sentence:
[A] trial judge lacks authority under La.R.S. 15:573.1(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 ex rel. Simmons v. Stalder, 93-1852 (La. 1/26/96), 666 So.2d 661. Moreover, even the Department of Corrections lacks that authority under La.R.S. 15:571.3(C) in a case in which the trial court has not formally adjudicated and sentenced the defendant as a multiple offender under the provisions of La.R.S. 15:529.1. When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge’s discretion should be exercised under La.C.Cr.P. 890.1(B).
Id. at 699.
Louisiana Code of Criminal Procedure Article 890.1 states:
A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(13).
B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(13) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).
We note that the offense at issue in the present case is not a crime of violence
enumerated or defined by La.R.S. 14:2(13). Thus, the trial judge in the present case
had no authority to deny diminution of sentence pursuant to La.Code Crim.P. art.
890.1. Accordingly, the sentence should be amended to delete the denial of
diminution eligibility. See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745
So.2d 694; State v. Young, 04-0029 (La. 5/14/04), 872 So.2d 505. Thus, the district
3 court is instructed to make an entry in the minutes reflecting this change. State ex rel.
Calvin v. State, 03-0870 (La. 4/2/04), 869 So.2d 866.
Sufficiency of the Evidence
We address Defendant’s fourth assignment of error first. Should there be merit
to Defendant’s assignment relating to sufficiency of the evidence, he would be
entitled to an acquittal and the remaining assignment of errors would become moot.
Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970 (1981).
Defendant argues that there was no evidence presented at trial which linked
him to the crack cocaine found in the blue tin can in his girlfriend’s vehicle.
Alternatively, Defendant argues that the State failed to prove that he had the requisite
intent to distribute the crack cocaine. Defendant further argues that the evidence
linking him with possession and distribution was circumstantial.
Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, on a question of the
sufficiency of the evidence, 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. See also State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983).
Moreover, when circumstantial evidence is used to prove the commission of
a crime, La.R.S. 15:438 mandates that “assuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” However, this requirement is also subject to the Jackson
sufficiency standard. “Ultimately, all evidence, both direct and circumstantial must
be sufficient under Jackson to satisfy a rational juror that the defendant is guilty
4 beyond a reasonable doubt.” State v. Cummings, 95-1377, p. 3 (La. 2/28/96), 668
So.2d 1132, 1134.
To support a conviction for possession with intent to distribute, the State must
show that an accused was in possession of a controlled dangerous substance and
intended to distribute the drug. Louisiana Revised Statutes 40:967(A) provides, in
pertinent part, that it is “unlawful for any person knowingly or intentionally: (1) To
produce, manufacture, distribute, or dispense or possess with intent to produce,
manufacture, distribute, or dispense, a controlled dangerous substance . . . classified
in Schedule II.”
At trial, Deputy Christian testified that on June 3, 2004, he had received
confidential information regarding the sale of crack cocaine by Defendant.
According to the informant, Defendant was driving a gray, four-door Mercury Sable
and the drugs were located in a blue tin can kept in that vehicle. The informant
advised the deputy that Defendant and the vehicle were in a parking lot near a
convenience store in Oakdale. Deputy Christian testified that he located the vehicle
on the street next to the parking lot. Defendant was standing about twenty feet away
from the vehicle, next to a truck being worked on by a mechanic.
Deputy Christian ran a check on the license plate and learned that the vehicle
was registered to Tara Williams. The deputy testified that he asked Defendant about
the vehicle and was told by Defendant that the car belonged to his girlfriend and that
it had been parked there since 9:00 in the morning to have its air-conditioning unit
looked at by the mechanic who was working on his truck. The vehicle was not
locked and the keys were in the ignition. Deputy Christian testified that he told
Defendant why he was there. He said that Defendant advised him that he had
possession of the vehicle and denied the deputy permission to search. Deputy
5 Christian further testified that Defendant took the keys out of the car and locked it,
then pulled him aside and admitted there were three or four rocks of cocaine in the
vehicle and asked that he be allowed to take the drugs out of the vehicle and leave.
Jeffery Manual, a deputy with the Allen Parish Sheriff’s Office, stayed with the
vehicle while Deputy Christian left to obtain a search warrant. When Deputy
Christian returned, he searched the vehicle and found ten individually packaged rocks
of a substance which later proved to be crack cocaine in the blue tin can.
Deputy Christian testified that just before he searched the vehicle, Tara
Williams came to the scene. After the search, he attempted to talk to Williams
regarding the drugs. She told him she was the only one driving the car that day, but
then she would not discuss it further. Williams was arrested later in the day and taken
to a holding facility in Basile. The deputy testified that the next day Williams
contacted him and wanted to give a statement.
On June 4, 2004, Tara Williams’s statement was taken. After she was
mirandized, the interview was taped. The interview was transcribed and placed into
evidence at trial as State’s Exhibit 11. During the interview, Williams stated that
Defendant was the father of one of her children and that he often used her car. On the
morning of June 3, 2004, he had used her car to take her to school. He was supposed
to pick her up at lunch time, but failed to show up. She got another ride home and
Defendant drove her back to school after lunch, and then came back to pick her up
after school. She stated that Defendant told her there were drugs in the car and to tell
the police that she had driven the car to the place where the mechanic was working
on Defendant’s truck so that the mechanic could look at the air-conditioning. She
stated there was nothing wrong with the air-conditioning unit in the vehicle.
6 At trial, however, Williams testified that she did not recall stating that
Defendant told her anything about drugs during the taped interview. On cross-
examination, she stated that, because of the child she and Defendant had in common,
she saw him regularly, but had no knowledge of whether he used or sold drugs. At
trial, she testified that Defendant took her to school in the morning in her car, and
took her back to school after lunch. She said that he was using her vehicle because
he was having problems with his truck and that he was going to have the mechanic
look at the air-conditioning in her vehicle. She denied that the drugs belonged to her
and had no idea how the drugs got there.
Calvin Davis, Defendant’s brother, was called by the State to testify. The State
asked Calvin if he had ever sold cocaine, and he admitted that he had. When the State
asked him if he had ever sold cocaine for his brother, he said no. The prosecutor then
questioned him about a written statement he had given to Deputy Christian on June
11, 2004, wherein he said that he often sold drugs for Defendant in the recent past.
The prosecutor questioned him further about the statement which went into detail
regarding how Defendant fronted him the drugs to sell. However, while Calvin
admitted he made these statements to Deputy Christian, he testified that he had lied.
Calvin explained that Deputy Christian threatened him with some potential charges
and a search of his home. Calvin said that he had teenage children at home, that he
did not know what they might have in their rooms, and was seeking only to protect
himself and his family.
While the State did not admit the written statement into evidence, Deputy
Christian took the stand and further testified as to the accuracy and voluntariness of
the statement made by Calvin.
7 Defendant called John Hines. Hines testified that he was a part-time mechanic
and that he was working on Defendant’s truck on the day of the incident. He stated
he did not notice the Mercury Sable until the police arrived and questioned him about
it. He stated that Defendant was around most of the day in case he needed to run to
town for parts for the truck. But he did not pay attention to whether Defendant was
there all day long.
In brief, Defendant argues that there was no physical evidence to link him to
the drugs located in Williams’s vehicle. Defendant states, incorrectly, that Williams
testified that she was the only one to drive the vehicle that day and accepted
responsibility for the drugs, and that “she repeatedly told the officers that ‘whatever
was in the vehicle was hers.’” At trial and in the statement made on June 4, 2004,
Williams stated that Defendant was in possession of her vehicle all day and that he
had driven the vehicle on at least two occasions that day. Moreover, in the interview
and at trial, she adamantly denied that the drugs belonged to her.
The State is required to show actual or constructive possession in order to
convict. State v. Trahan, 425 So.2d 1222 (La.1983). A person is considered to have
constructive possession even though the drug is not in his physical custody, if it is
subject to his dominion and control. State v. Smith, 257 La. 1109, 245 So.2d 327
(1971). The State must also show guilty knowledge; i.e., in this case, that an accused
is aware of the illegal drugs in his possession. State v. Perkins, 97-1119 (La.App. 3
Cir. 6/17/98), 716 So.2d 120. Deputy Christian testified that Defendant exercised
control over the vehicle. When Deputy Christian asked about the vehicle, Defendant
told him it belonged to his girlfriend. When the deputy asked if he could search the
vehicle, Defendant refused consent, further taking the keys out of the ignition and
locking the door. Moreover, Deputy Christian testified that Defendant took him aside
8 and told him there were drugs in the vehicle and requested that he be allowed to take
the drugs and leave. We find that the evidence was sufficient for the trier of fact to
infer, beyond a reasonable doubt, that Defendant was, at the very least, in constructive
possession of the drugs, and had guilty knowledge of what was in the blue tin can.
Defendant further argues that the State failed to show that he had the requisite
intent to distribute the drugs. This court has held that in the case of intent to
distribute drugs, there is often no direct evidence of the intent; therefore, intent may
be inferred from the circumstances. Perkins, 716 So.2d 120. As a guideline to
determine intent, the Louisiana Supreme Court enumerated the following factors: (1)
whether the accused ever distributed or attempted to distribute drugs; (2) whether the
drugs were in a form usually associated with possession for distribution to others; (3)
whether the amount of drugs created an inference of an intent to distribute; (4)
whether expert or other testimony establishes that the amount of drugs found in the
accused’s possession is inconsistent with personal use only; and (5) whether there
was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.
State v. House, 325 So.2d 222 (La.1975).
Using the above guidelines, this court in Perkins found that the State failed to
show that Perkins intended to distribute the marijuana found in his vehicle. Perkins
was sitting in the vehicle with two other men. There were five zip-lock baggies
containing marijuana, fifteen marijuana cigarettes, and two partially smoked
marijuana cigarettes. This court stated that the only above-enumerated factor present
which was consistent with distribution were the zip-lock baggies. However, there
was no testimony that such packaging was inconsistent with personal use and,
considering there were three individuals, it was not unreasonable to infer that the
marijuana was for personal use only. “The intent to distribute may be established
9 solely on the amount found only if the quantity is so large that no other inference is
possible.” Perkins, 716 So.2d at 130.
In the present case, there were ten rocks of crack cocaine, each in individual
packages, totaling eleven grams. Defendant argues:
[t]he amount totaled 11 grams, not a sufficient amount to constitute intent to distribute. As the crime lab expert, Gary Rogers, testified, eleven grams is a ‘smokeable amount,’ a quantity sufficient only for personal use.
Defendant misrepresents the import of the testimony. The witness did not testify that
the amount of the drug was consistent with personal use only. Gary Rogers, director
of the Southwest Louisiana Crime Laboratory, testified as to the substance found in
the tin can. He identified it as cocaine. On cross-examination, defense asked him:
Q: Well, could one junkie use that drug, eleven grams. One junkie that was a crack cocaine addict. Could he smoke up eleven grams?
A. I would think so.
The witness testified only that someone could smoke ten rocks of crack cocaine.
In State v. Francois, 02-2056 (La.App. 4 Cir. 4/9/03), 844 So.2d 1042, writ
granted, 03-1313 (La. 11/25/03), 864 So.2d 607, the police discovered Francois and
another man sitting in Francois’ bedroom, making little foil packages of heroin.
There were fourteen packages containing 1.0 gram each, and a small amount of
heroin on a plate with a weight of 1.6 grams. The police found a razor blade, plastic
bags containing heroin residue, a box of baggies, and $178.00. Noting that intent was
a state of mind and applying the factors to determine intent as set forth by the
supreme court in House, the fourth circuit found that, considering there were two men
involved and without other evidence that the packages were made for distribution,
there was nothing to indicate that the packages were not for personal consumption.
However, the supreme court reversed the fourth circuit’s ruling in State v. Francois,
10 03-1313, p. 2 (La. 04/14/04), 874 So.2d 125, 127. While agreeing that the amount
of the drug was not necessarily indicative of distribution, the “assembly line” process
that was observed by the officers reflected “the operation of drugs being prepared for
sales.” The supreme court held that it was a reasonable inference sufficient enough
for the jury to disregard the hypothesis that the drugs were for personal use only.
Considering the fact that the rocks were individually packaged in baggies and
that Deputy Christian testified that the confidential informant, who gave very specific
details regarding the blue tin can in which the drugs were kept and the vehicle in
which the tin can was kept and its location, also told him that Defendant was selling
the drugs, we find that the evidence was sufficient to establish the element of intent
to distribute drugs.
Motion to Continue and Motion to Suppress
For his first assignment of error, Defendant asserts the trial court erred when
it denied his motion to continue trial and motion to suppress evidence. Both motions
were oral motions, made on the morning of trial. The transcript of the hearing on
Defendant’s motion to continue is not in the record. Therefore, the record does not
indicate the reasons the trial court denied Defendant’s motion to continue trial and
this court may choose not to address the issue of the motion to continue. However,
in his brief, Defendant argues the same grounds for granting his motion to continue
trial as he argued to the trial court in support of the timeliness of his motion to
suppress the evidence.
Shortly after the State’s first witness, Deputy Christian, was sworn in and
commenced with his testimony, Defendant moved to suppress the search warrant.
After removing the jury and after arguments, the trial court denied Defendant’s
11 motion as untimely pursuant to La.Code Crim.P. art. 703(C), which provides as
follows:
A motion filed under the provision of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
Louisiana Code of Criminal Procedure Article 521, in pertinent part, provides
that “[p]retrial motions shall be made or filed within fifteen days after arraignment,
unless a different time is provided by law or fixed by the court at arraignment upon
a showing of good cause why fifteen days is inadequate.”
In brief, Defendant argues:
The arrest occurred on June 4th ‘04. Some two to three weeks before trial, the Defendant, who had only recently been allowed out on bond and began once again to work and erarn(sic) money, was able to hire counsel. Although defense counsel was notified of the trial date because of the close proximity to arrest he believed, based on many years of experience, that the case would not be called to trial and that he would have time to further prepare and file motions, for instance, Discovery, and most appropriate, a Motion to Suppress.
In a minute entry dated June 15, 2004, at the 72-hour hearing, Defendant
informed the trial court that he had retained counsel, Mack Frank. Counsel was
present. A minute entry dated September 1, 2004, of Defendant’s arraignment
hearing indicates that defense counsel was not present, but at that time Defendant
advised the trial court that he had counsel. The matter was set for pre-trial conference
on October 25, 2004, and trial was scheduled for November 15, 2004. Attorney Mack
Frank was Defendant’s trial counsel. There were no motions, including motions for
discovery, filed into the record on Defendant’s behalf.
At trial, the trial court questioned defense counsel concerning his failure to file
a timely motion and following argument by counsel on the issue, the trial court ruled:
12 All right. So all of that information was there back at the time of the arraignment. So the grounds were there, if there were any grounds. The fact that the defendant hired an attorney late and did not file for discovery and did not get this information until yesterday is not an excuse that the Court will accept. Failure to file without adequate excuse constitutes a waiver.
We find that the trial court did not err when it denied Defendant’s motion to
suppress the evidence on the morning of trial. Pre-trial motions were ordered to be
filed fifteen days after arraignment, which was on September 1, 2004. Even
following the pre-trial conference, knowing that trial was schedule for three weeks
later, Defendant still failed to file motions, relying instead on the possibility the trial
would be refixed for a later date.
Further, as noted above, the record does not indicate on what grounds
Defendant argued for a continuance of the trial or why the trial court denied the
motion, therefore, this court may choose not to address the issue. However, if the
motion was based on the same argument Defendant raised as to why the untimeliness
of his motion to suppress was excusable, as indicated in his brief, then the trial court
did not err when it denied the motion to continue.
There is no merit to this assignment of error.
In the alternative, Defendant alleges ineffective assistance of counsel for failure
to file a motion to suppress the evidence. In State v. James, 95-962, pp. 4-5 (La.App.
3 Cir. 2/14/96), 670 So. 2d 461, 465, this court stated:
In order to prove that counsel was ineffective, the defendant must meet the two-pronged test enunciated by the Supreme Court. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that his deficiency prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
13 Furthermore, the Louisiana Supreme Court has stated:
A claim of ineffective assistance of counsel generally is more properly raised in an application for post-conviction relief than on appeal. State v. Hamilton, 92-2639 (La.7/1/97); 699 So.2d 29, cert. denied, [522] U.S. [1124], 118 S.Ct. 1070 (1998). In post-conviction proceedings, the district judge can conduct a full evidentiary hearing on the matter. However, when the record contains evidence sufficient to decide the issue, the appellate court may consider the issue in the interests of judicial economy. See, e.g. State v. Ratcliff, 416 So.2d 528 (La.1982).
State v. Brumfield, 96-2667, pp. 13-14 (La. 10/20/98), 737 So.2d 660, 668-69, cert.
denied, 526 U.S. 1025, 119 S.Ct. 1267 (1999).
In brief, Defendant states only that “[a]lthough he had retained the attorney
some weeks before, said attorney neither filed for discovery or Motion to Suppress
or a continuance until the day of trial. The Court ruled the oral motion that he did file
for suppression untimely.” Defendant makes no further argument. As noted above,
not only does a defendant have to show deficient performance, he has to show that
the deficient performance caused prejudice in his case. Accordingly, Defendant is
relegated to raising the issue of ineffective assistance of counsel in application for
post-conviction relief.
Jury Instructions
For his second assignment of error, Defendant asserts that the trial court erred
when it “refused to specifically instruct the Jury in a manner that could possibly have
alleviated the clear and substantial prejudice to the defendant by the description of
the crucial witness who did not appear.” Defendant’s argument, however, does not
pertain to jury instructions. Rather, Defendant asserts that the State prejudiced his
case when it told the jury, “in no uncertain terms, that he would have a witness [Sam
Jones] to demonstrate that the defendant had distributed cocaine that day and it was
going to be through this witness that they would prove the ‘Intent to Distribute.’”
Defendant further asserts that when Sam Jones failed to appear, the State, in the
14 presence of the jury, told the trial court the “crucial” summary of the witness’s
testimony.
Initially, we note that Defendant incorrectly states what was said during the
State’s opening statement. In the State’s opening statement, the State said, in
pertinent part:
We will have another witness who testifies that he distributed cocaine at the request of Mr. Sammy Davis. And this is how we intend to prove that Mr. Davis had the intent to distribute the cocaine that he had on the date of June 3, 2004, because of the actual distribution of cocaine by Mr. Davis. That is the gist of the State’s case.
The State never mentioned a witness’s name.
Defendant further incorrectly states what occurred in the courtroom when the
witness failed to appear upon being called to testify. After it became apparent to the
State that the witness, Sam Jones, was not going to appear, the State and defense
counsel had a conference at the bench with the trial judge. The jury was not privy to
this conference. It was at this time that the State told the trial court the sum of the
missing witness’s testimony and asked that a bench warrant be issued.
At no time did Defendant request a special jury instruction regarding the
witness who failed to appear. At the close of the case, after the trial court had read
the jury instructions to the jury, it specifically asked whether there were any
objections to the charges and defense counsel answered, “No, I don’t.” Generally, an
error not objected to at the time of trial cannot be raised on appeal. La.Code Crim.P.
art. 841.
For all the above reasons, this assignment of error lacks merit.
“Other Crimes” Evidence
Defendant asserts that the trial court improperly allowed “other crimes”
evidence to be admitted without a hearing pursuant to State v. Prieur, 277 So.2d 126
15 (La.1973). The evidence of other crimes to which Defendant refers are the statements
made by Calvin Davis to the police that he sold drugs for Defendant in the recent
past. This statement was read into the record.
Defendant cites to La.Code Evid. art. 404(B), which provides:
Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Defendant argues that the recanted statements made by Davis were offered for
the purpose of showing Defendant’s bad character. At trial, prior to Davis’s
testimony, Defendant objected to the statements being read because to do so would
expose the jury to other crimes evidence. Outside the jury’s hearing, the following
exchange ensued:
MR. FRANK: And I think that is going to be prejudicial and inadmissible to bring in other crimes. His character has not been placed at issue by us in any way. His moral character is not at issue.
MR. DEMORUELLE: May it please the Court, the defendant is charged with possession with intent to sell cocaine. And in order for me to show that he intended to sell cocaine on this date, I will have to show that he had sold cocaine in the past. And that is the relevance, Your Honor, his prior conduct, with the dealing of cocaine.
THE COURT: All right, the court is going to admit it for that purpose.
Defendant incorrectly argues that the evidence that he sold drugs in the past
was admitted to show that he was of bad character and that he had “acted in
conformity therewith.” Evidence that Defendant sold cocaine in the recent past was
admissible as evidence of Defendant’s intent to sell cocaine in the present case, which
16 was an essential element of the crime charged. See State v. Lee, 25,917 (La.App. 2
Cir. 5/4/94), 637 So.2d 656, writ denied, 94-1451 (La. 10/7/94), 644 So.2d 631. As
discussed above in Defendant’s allegation of insufficient evidence to show intent, one
of the factors looked at to discern intent was whether Defendant sold drugs in the
past.
Further, as pointed out by the State, pursuant to Article 404(B), other crimes
or acts “may be admissible . . . provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial.”
In the current case, as noted above, Defendant did not file motions for discovery,
wherein this type of evidence is generally noticed to an accused.
Finally, “not every Prieur violation mandates reversal.” State v. Temple, 01-
655, p. 20 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709. The fifth circuit held that
evidence of prior drug sales by the accused was permissible to show intent to
distribute. The fifth circuit further stated:
Before a defendant can complain of a Prieur violation, he must first show prejudice. [State v. Pardon, 97-248 (La.App. 5 Cir. 10/15/97), 703 So.2d 50, 57, writ denied, 97-2892 (La. 3/20/98), 715 So.2d 1207]. In State v. Lee, 25,917 (La. App. 2 Cir. 5/4/94), 637 So.2d 656, 662, writ denied, 94-1451 (La. 10/7/94), 644 So.2d 631, the Second Circuit explained that “the rules of Prieur were not meant to be used as additional, technical procedures sacramental to a valid conviction” and noted that substantial compliance with Prieur is all that is required.
Id. at 709.
In the present case, Defendant fails to show prejudice. Despite Defendant’s
inference otherwise, a pre-trial hearing is not required by the mandates of Prieur. As
noted above, prior to Calvin Davis’s testimony, the trial court held a hearing on
whether his testimony was admissible and determined correctly that it was admissible
to show the element of intent.
17 For all the above reasons, the trial court did not err when it allowed the
witness’s prior inconsistent statements regarding whether Defendant distributed
cocaine in the past to establish the element of intent. Accordingly, this assignment
also lacks merit.
DECREE
We affirm Defendant’s conviction for possession with the intent to distribute
cocaine, in violation of La.R.S. 40:967(A)(1). However, we amend the Defendant’s
sentence to delete the statement denying diminution of sentence. The trial court is
directed to enter this amendment in the minutes. The Defendant’s sentence of twenty
years at hard labor to run consecutively to any sentence he might be serving at the
time of the present conviction is affirmed as amended.
CONVICTION AFFIRMED; SENTENCE AMENDED WITH INSTRUCTIONS AND AFFIRMED AS AMENDED.
18 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, dissenting in part.
This court has held that in the case of intent to distribute drugs, there is
often no direct evidence of the intent; therefore, intent may be inferred from the
circumstances. State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120.
As a guideline to determine intent, the Louisiana Supreme Court enumerated the
following factors: 1) whether the accused ever distributed or attempted to distribute
drugs; 2) whether the drugs were in a form usually associated with possession for
distribution to others; 3) whether the amount of drugs created an inference of an
intent to distribute; 4) whether expert or other testimony establishes that the amount
of drugs found in the accused’s possession is inconsistent with personal use only;
and, 5) whether there was any paraphernalia, such as baggies or scales, evidencing
an intent to distribute. State v. House, 325 So.2d 222, 225 (La.1975).
Factors two through five suggest there was insufficient evidence to infer
Defendant possessed the crack cocaine for the purpose of distribution. Using the
above guidelines, this court in Perkins found the State failed to show that Perkins
intended to distribute the marijuana found in his vehicle. Perkins was sitting in the
vehicle with two other men. There were five zip-lock baggies containing marijuana, fifteen marijuana cigarettes, and two partially-smoked marijuana cigarettes. This
court stated that the only above-enumerated factor present which was consistent with
distribution were the zip-lock bags. However, there was no testimony that such
packaging was inconsistent with personal use and considering there were three
individuals, it was not unreasonable that the marijuana was for personal use only.
“The intent to distribute may be established solely on the amount found only if the
quantity is so large that no other inference is possible.” Perkins, 716 So.2d at 130.
In the present case, whether the drugs were packaged in a manner
consistent with sales, the fact that the rocks were in small individual baggies does not
indicate that they were necessarily for sale. The rocks may have been purchased that
way. Unlike State v. Francois, 03-1313 (La. 04/14/04), 874 So.2d 125, Defendant
was not discovered packaging the rocks. Considering that the vehicle belonged to
Defendant’s girlfriend, it would not have been unreasonable to find that the ten rocks
were for personal consumption between the two individuals. While the ten rocks
were packaged individually, without anything more, it was a reasonable hypothesis
that the drugs were for personal use only.
As for factor number one, the only evidence offered on whether
Defendant sold or attempted to sell drugs in the past was Calvin Davis’s testimony.
At trial, he recanted the statements he had given to the police on June 11, 2004,
affirming that he had received drugs in the recent past from Defendant for the purpose
of sale. While Calvin Davis testified at trial that he sold cocaine, he denied that he
ever got drugs to sell from Defendant. Regarding the recanted statements he made
to the police, on cross-examination Davis testified as follows:
Q: The testimony that you were talking about, was that something that occurred in 2004 or did you just make it up entirely or what?
2 A. No, it happened way back about six months after he got out of prison.
MR. DEMORUELLE: I didn’t hear the answer.
THE WITNESS: About six months after he got out of prison.
....
Q: Yes. And that would have been about three years ago?
A: Three and a half years ago.
Q. Three and a half years ago?
A. Yes, sir.
Q. Do you know anything at all about Sammie Davis dealing drugs in 2004?
A. No, sir. He told me that he had quit selling drugs after that time. He didn’t mess with no more drugs.
The evidence was insufficient to show the necessary element of intent
to distribute. Of all the five factors listed above, only two of the factors carry any
inference that the drugs were for distribution purposes—that the drugs were packaged
in a manner consistent with sales, and the statements made by Defendant’s brother
prior to and at trial. Considering there were two persons involved, ten rocks of crack
cocaine is not such a large amount that could necessarily infer distribution. There
was no other evidence of distribution, no money, or baggies other than what the rocks
were in. I would vacate the Defendant’s conviction and set aside the sentence.
However, complete acquittal is not required. Louisiana Code of
Criminal Procedure Article 821(C) permits this court to “modify the verdict and
render a judgment of conviction on the lesser included responsive offense.”
Accordingly, as discussed in the majority opinion, the evidence was sufficient to
show that Defendant possessed cocaine in violation of La.R.S. 40:967(C). Defendant
3 was in control of the drugs that were located in his girlfriend’s vehicle and he was
aware of the fact that the blue tin can contained rocks of crack cocaine. Therefore,
because the evidence was insufficient to prove intent to distribute, a judgment of
conviction of possession should be entered by this court, and this case should be
remanded to the trial court for resentencing.
For the foregoing reasons, I dissent in part.