State v. Barrett

756 So. 2d 576, 2000 WL 567607
CourtLouisiana Court of Appeal
DecidedMarch 1, 2000
Docket33,076-KA
StatusPublished
Cited by2 cases

This text of 756 So. 2d 576 (State v. Barrett) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrett, 756 So. 2d 576, 2000 WL 567607 (La. Ct. App. 2000).

Opinion

756 So.2d 576 (2000)

STATE of Louisiana, Appellee,
v.
Ray Edward BARRETT, a/k/a Roy Barrett, Appellant.

No. 33,076-KA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 2000.

*578 Louisiana Appellate Project by J. Wilson Rambo, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Jason Waltman, Assistant District Attorney, Counsel for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

DREW, J.

Charged by bill of information with distribution of a controlled dangerous substance, Schedule II, cocaine, La. R.S. 40:967(A)(1), and tried by jury, Ray Edward Barrett was found guilty of the responsive verdict of possession of cocaine. The trial court sentenced the defendant to four years at hard labor and recommended him for the intensive incarceration "Impact" program. On appeal, defendant asserted that there was insufficient evidence for his conviction and that the trial court erred in imposing an excessive sentence and in failing to adequately comply with La. C. Cr. P. art. 894.1. Both the conviction and sentence are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of June 17, 1999, the Shreveport Police Department drug interdiction team conducted an undercover drug operation. S.P.D. Officer Joe Conant, the undercover buyer, wore audio surveillance equipment, or a "bug," and drove down Sprague Street, an area of known drug activity. The arrest team of three officers was located nearby in a van. At the corner of Sprague Street and Marycourt, an individual, later identified as Gregory Smith, came up to Conant's vehicle and asked what he wanted. When the officer told Smith that he wanted to get a twenty-dollar "rock," Smith told him to drive around the block and come back. When Conant complied, returned and parked on the side of the street, a different individual, later identified as the defendant, Ray Edward Barrett, approached the car. The officer gave the defendant a twenty-dollar bill, and the defendant gave Conant a rock of cocaine.

The arrest team heard via the audio surveillance that the buy had been completed. As the undercover policeman drove away, he described the defendant as wearing orange baggy shorts and a white muscle shirt. Within a minute of the transaction, the arrest team arrived on the scene and detained the defendant and Gregory Smith. The police found neither drugs nor money on either of the detained individuals. During the defendant's detention, Conant performed a "drive by" identification of the defendant. He drove back onto Sprague Street and slowed down where the arrest team had the defendant detained. Conant radioed his positive identification to the arrest team and told them the defendant was definitely the person who sold drugs to him. The police arrested the defendant and released Smith.

Tried for distribution of cocaine, the defendant was found guilty by the jury on the responsive verdict of possession of cocaine. The defendant filed a Motion for Post-Verdict Judgment of Acquittal, which was denied. The trial court ordered a PSI which showed that the defendant had no previous criminal record as an adult. The report noted defendant was eligible and recommended for probation because he was a first felony offender. The PSI further stated that, if the defendant received an unsuspended hard labor sentence, he would be recommended for the Impact program.

Other information contained in the PSI was that the 19-year-old defendant left school in the ninth grade at age 15. According to the defendant, he was incarcerated for a juvenile conviction when he left school. The Caddo Parish Juvenile Court confirmed defendant had a juvenile record. *579 While he admitted earlier gang participation, the defendant denied gang affiliation at the time the PSI was compiled. The defendant and his mother with whom he lived reported that defendant had never been employed.

At the sentencing, the trial court noted that the jury chose to convict the defendant of possession of cocaine although it could have found defendant guilty of distribution. Reviewing the PSI, the trial court specifically found an undue risk existed that, during any period of a suspended sentence or probation, defendant would commit other offenses. The trial court declared that defendant was in need of correctional treatment in a custodial environment best provided by the Department of Corrections. Noting that defendant had been charged with distribution of cocaine which carried a mandatory minimum sentence of five years at hard labor without benefit of probation, parole or suspension of sentence, the trial court stated that his conviction of possession of cocaine carried no mandatory minimum sentence. There was no indication of threats or violence, and no showing that the defendant obtained a substantial income from drug activities. The trial court stated there was no strong provocation for defendant to commit the offense, which was apparently a voluntary act on defendant's part. No grounds excusing or justifying defendant's conduct were shown and the trial court found defendant's conduct was the result of circumstances likely to reoccur. Since the defendant had no dependents, incarceration was found not to be a hardship.

The penalty for possession of cocaine is imprisonment with or without hard labor for a period of not more than five years and a fine of not more than $5,000. La. R.S. 40:967(C)(2). The trial court sentenced the defendant to serve four years hard labor, with credit for time served, and recommended him for the Impact program operated by the Department of Corrections. The Impact program is authorized under La. R.S. 15:574.4, and provides for parole, intensive incarceration and intensive parole supervision for qualified convicted felons. Thereafter, the defendant filed a Motion to Reconsider Sentence, which was also denied.

DISCUSSION

The defendant urged that his conviction for possession of cocaine was not supported by sufficient evidence. When the defendant challenges both the sufficiency of the evidence and one or more trial errors, the reviewing court will first review the sufficiency of the evidence, as a failure to satisfy Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) will moot the trial errors. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Bullard, 29,662 (La.App.2d Cir.09/24/97), 700 So.2d 1051. The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson, supra; State v. Clower, 30,745 (La.App.2d Cir.06/24/98), 715 So.2d 101. That standard, initially enunciated in Jackson and now legislatively embodied within La. C. Cr. P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Perry, 612 So.2d 986 (La.App.2d Cir.1993).

All evidence, both direct and circumstantial, must be sufficient under the Jackson standard to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142 (La.1985); State v. Arrington, 514 So.2d 675 (La.App.2d Cir.1987); State v. McKnight, 539 So.2d 952 (La.App.2d Cir.1989), writ denied, 548 So.2d 322 (La. 1989). It is always the function of the jury to assess the credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App.2d Cir.1992), writ denied,

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Related

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780 So. 2d 1230 (Louisiana Court of Appeal, 2001)
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Cite This Page — Counsel Stack

Bluebook (online)
756 So. 2d 576, 2000 WL 567607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrett-lactapp-2000.