State of Louisiana Versus Kevin Barker

Louisiana Court of Appeal·Decided December 11, 2019·No. 19-KA-223·Unknown

Opinion

STATE OF LOUISIANA NO. 19-KA-223 VERSUS FIFTH CIRCUIT KEVIN BARKER COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-6405, DIVISION "B"

HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

December 11, 2019

JUDE G. GRAVOIS

JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

AFFIRMED JGG FHW HJL

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr.

Terry M. Boudreaux Andrea F. Long Meredith Hearn

COUNSEL FOR DEFENDANT/APPELLANT, KEVIN BARKER Davidson S. Ehle, III

GRAVOIS, J.

Defendant, Kevin Barker, appeals his conviction and sentence for possession with intent to distribute methamphetamine weighing less than twenty-eight grams, following the trial court’s denial of his motion to suppress evidence. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY AND FACTS On October 23, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin Barker, with possession with intent to distribute methamphetamine weighing less than twenty-eight grams, in violation of La. R.S. 40:967(A). Derrick Jones was charged as a co-defendant in the same bill of information. Defendant entered a plea in absentia of not guilty at his arraignment on November 19, 2018.1 On that same date, defendant filed omnibus motions, including a motion to suppress evidence. On February 11, 2019, the trial court heard only defendant’s motion to suppress evidence.2 On February 19, 2019, the trial court denied the motion to suppress.

On March 14, 2019, defendant withdrew his not guilty plea and pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). After informing defendant of his Boykin3 rights and accepting his Crosby plea, the trial court sentenced defendant to four years imprisonment at hard labor, suspended the sentence, and placed him on three years of active probation. On March 20, 2019, defendant filed a motion for an appeal, which was granted on March 21, 2019. Defendant’s appeal follows where he challenges the trial court’s denial of his motion to suppress evidence.

1 On that same date, a Motion, Affidavit and Order to Waive Defendant’s Presence at Arraignment was filed into the record. Per La. C.Cr.P. art. 832, a defendant may waive his presence at arraignment.

2

The remainder of defendant’s omnibus pretrial motions, such as a motion to suppress a confession and identification, were not heard. When a defendant fails to object to the trial court’s failure to hear or rule on a pretrial motion before pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Here, because defendant did not object to the trial court’s failure to hear or rule on his other pre-trial motions, any objection thereto is waived.

3 Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).

Because defendant pled guilty, the facts of his case were not fully developed at a trial. The bill of information provides that on or about October 4, 2018, defendant knowingly or intentionally possessed with intent to distribute methamphetamine weighing less than twenty-eight grams.

At the February 11, 2019 suppression hearing, Detective Allan Doubleday with the Jefferson Parish Sheriff’s Office testified that on October 4, 2018, at approximately 11:00 a.m., he went to the Boomtown Casino located on Peters Road in Jefferson Parish after he received information that morning from a known confidential informant (“CI”).4 The CI provided that defendant would deliver “a quantity of methamphetamine and liquid methamphetamine” to the casino and that he would arrive at approximately 11:00 a.m. in an Uber accompanied by a black male. The CI did not know the name of the black male, but he or she provided screenshots of both individuals.5 With this information and due to time constraints, Detective Doubleday went to the casino and established surveillance. As he waited for the suspects to arrive, Detective Doubleday was able to monitor their Uber on the Uber app, and the CI also sent Detective Doubleday a text message indicating that the suspects would be arriving at the casino soon. Detective Doubleday then observed defendant and the black male from the previously provided screenshots arrive in an Uber. Both defendant and the black male carried backpacks, and as predicted by the CI, walked to the lobby of the casino near the elevator “where the meet was supposed to happen.” At that point, the suspects were detained and brought outside of the casino to the parking lot.6 Based on the CI’s information and his corroboration of that information, Detective Doubleday believed that defendant was about to

4 Detective Doubleday testified that he had worked with this CI before and the CI was paid after the investigation.

5 Detective Doubleday could not recall whether the photographs of the suspects came from “Grinder” or another social media application.

6 Detective Doubleday denied that the suspects appeared nervous or attempted to discard their backpacks.

commit a crime. Detective Doubleday Mirandized7 both defendant and the black male, who was identified as Derrick Jones (the co-defendant).

Detective Doubleday testified that Mr. Jones waived his Miranda rights and elected to speak with him while defendant remained silent. Mr. Jones proceeded to inform Detective Doubleday that he had arrived in Louisiana from Oklahoma a few weeks earlier and was living with defendant in an apartment. During that time, he learned that defendant was distributing methamphetamine from that location. He further provided that defendant had asked him that morning to travel with him to deliver a quantity of methamphetamine, and when they went to leave their apartment, defendant asked Mr. Jones to hold the methamphetamine while they traveled to the casino. Mr. Jones stated that he had placed the methamphetamine in a candy box inside of his backpack. Detective Doubleday testified that after Mr. Jones said that the methamphetamine was in a candy box inside of the backpack, the backpack was searched.8 Detective Doubleday subsequently discovered a bag of crystal methamphetamine and also liquid methamphetamine.9 Defendant did not have any contraband in his backpack or on his person.

After Detective Doubleday’s testimony concluded, defendant argued that there was not any corroboration of the information provided by the CI. He averred that defendant was arrested without any probable cause when he was stopped at the elevator in the casino lobby before any true corroboration of the tip occurred. He urged that the arrest was illegal and that the evidence seized thereafter should be

7 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

8 Detective Doubleday provided contradicting information as to whether Mr. Jones consented to a search of his backpack. He was asked: “Mr. Jones on the other hand at that point in the parking lot after he was detained gave you consent; is that right?” Detective Doubleday responded: “Correct.” However, he thereafter denied that Mr. Jones was asked for consent to search his bag or executed a written consent form but rather, “[h]e told us it was in his bag.”

9 During cross-examination, Detective Doubleday denied knowing that the liquid methamphetamine “came back negative” after it was tested. The Arrest Report and Probable Cause Affidavit indicates that sixteen grams of “a crystal like substance that tested positive for methamphetamine” was discovered, as well as “a clear liquid, that tested positive for methamphetamine with an approximate weigh of 10 milliliters.”

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