State v. Bullock

766 So. 2d 585, 2000 WL 768878
CourtLouisiana Court of Appeal
DecidedJune 14, 2000
Docket99-KA-2124, 99-KA-2125
StatusPublished
Cited by2 cases

This text of 766 So. 2d 585 (State v. Bullock) 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. Bullock, 766 So. 2d 585, 2000 WL 768878 (La. Ct. App. 2000).

Opinion

766 So.2d 585 (2000)

STATE of Louisiana
v.
James BULLOCK.

Nos. 99-KA-2124, 99-KA-2125.

Court of Appeal of Louisiana, Fourth Circuit.

June 14, 2000.

*586 Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, Louisiana, Counsel for Plaintiff-Appellee.

Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, Counsel for Defendant-Appellant.

Court composed of Judge WILLIAM H. BYRNES, III, Judge MIRIAM G. WALTZER, Judge PHILIP C. CIACCIO, Pro Tem.

*587 BYRNES, Judge.

On June 17, 1996, the defendant was charged in two separate bills of information with violating portions of the Uniform Controlled Dangerous Substance Law. More specifically, in case no. 383-601 the defendant was charged with violating La. R.S. 40:966, relative to possession of heroin. In case no. 383-611 the defendant was charged with violating La. R.S. 40:967, relative to possession of cocaine. Both offenses allegedly occurred on April 7, 1996. On January 14, 1997, the court found probable, denied the defendant's motions to suppress evidence, and denied motions to suppress a statement.

On July 31, 1997, a twelve-person jury found the defendant guilty as charged on the heroin charge, and a six-person jury found the defendant guilty as charged on the cocaine charge. That same day the defendant orally moved for judgments of acquittal and new trials, to be supplemented by written motions. On August 27, 1997, defense counsel filed motions for new trial, which the court denied. Counsel also filed motions for post-verdict judgments of acquittal. On August 29, 1997, defendant filed pro se motions for new trial and for arrest of judgment. Following a hearing on September 11, 1997, the court denied the motions for judgment of acquittal and sentenced the defendant to serve a four-year sentence on the heroin charge and a three-year sentence on the cocaine charge. The sentences are to run concurrently with each other and with another sentence on a conviction for possession of stolen property. The state subsequently filed a multiple bill; however, the multiple bill was allegedly quashed and does not form the basis for this appeal. On March 11, 1998, the defendant filed oral motions for appeal, which the court granted. On March 17, 1998, the court again granted out of time appeals in both cases. No motions to reconsider sentences were filed. The defendant was granted out of time appeals on March 5 and 11, 1998.

STATEMENT OF FACT

At trial, Troopers Sean Nedd and Robert Bennett[1] of the Louisiana State Police testified that they were conducting a roadblock with several other officers on April 7, 1996, for the purpose of checking for proof of insurance. The roadblock was set up at the Louisa Street entrance ramp to Interstate 10 in New Orleans.

Trooper Nedd was stationed near the ending portion of the acceleration lane on the Louisa Street on ramp and Trooper Bennett was stationed further back at Louisa Street itself in his vehicle. Trooper's Bennett's assignment was to sit at the back and keep cars from backing down the ramp causing accidents. At around 11:30 in the morning, the defendant attempted to back down the ramp when he encountered the roadblock. Trooper Bennett radioed the other officers that someone had backed up. After he finished clearing another driver, Trooper Nedd walked toward Trooper Bennett and the defendant. Trooper Bennett approached the defendant and asked him to step out of his vehicle. When the defendant exited the vehicle both troopers noticed that he was nervous and excited; he was sweating profusely. When asked for a driver's license, he stated that he did not have a driver's license. When asked for identification, the only thing he presented was his Social Security card. He did not provide any insurance or registration for the vehicle. The defendant stated that the car belonged to his daughter, and he was going to his daughter's house. While the defendant was standing along side the driver's side of the car, Trooper Bennett called the radio room and requested a driver's license check to find out if a license had been issued to the defendant. While verifying that the defendant had a license, the troopers walked to the passenger side and looked inside the car. The first thing *588 Trooper Nedd looked at was the steering column, then he looked on the seat for weapons. Although Trooper Nedd saw no weapons in the vehicle, both troopers observed a clear plastic bag lying on the front seat with a syringe, bottle cap, the bottom of a coke can, and a piece of nylon. Trooper Nedd testified that the bag was on the driver's seat.[2] At the trial of the heroin case Trooper Bennett testified that the bag was on the passenger seat.[3] At the trial of the cocaine case, Trooper Bennett testified that the bag, "was located on the front seat, next to the passenger, the driver's seat."[4] From experience, the troopers recognized these items as drug paraphernalia. Trooper Bennett seized the items. The troopers walked back to tell the defendant what they had found. When he saw the officer coming out of the car he made a statement to the effect that he was just a drug user and not a seller. The defendant was given his Miranda rights, arrested for possession of drug paraphernalia, and taken to Central Lockup. Trooper Bennett testified that he did not recall if anyone gave the defendant a ticket for backing up on the interstate.

At trial, Trooper Nedd identified the items seized that day. He stated that the aluminum can had a dark residue in the bottom portions. The interior of the bottle cap contained a white substance with some scrape marks toward the edge. He testified that at the time he first saw the syringe, the plunger was pushed forward and had a clear white substance in the interior with the needle on it. A noticeable amount of liquid was in the syringe. Trooper Nedd also identified two razor blades as blades that were also inside the plastic bag with the other objects.

Trooper Nedd and Trooper Bennett testified that they were familiar with this type paraphernalia. Both stated that drug users commonly use a nylon stocking or any type of tie to shut off a main artery in order for the vein to pop up. Drug users tie the stocking around their arms, and then they inject the substance used in the syringe into their veins.

The parties stipulated that Howard Pentes of the Louisiana State Police Crime Laboratory was an expert in the field of drug analysis. Dr. Pentes testified that his report indicated that residue was found in the seized items. He testified that the syringe and aluminum bottle cap tested positive for heroin.[5] Additionally, the syringe, the aluminum bottle cap, and the aluminum can bottom tested positive for cocaine.[6] The jury found the defendant guilty as charged in each case.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court sentenced the defendant immediately after denying his motions for post verdict judgments of acquittal. The minute entry of sentencing does not reflect that the defendant waived his right to a twenty-four hour delay between the denial of his motions and sentencing. La.C.Cr.P. art. 873. In State v. Augustine, 555 So.2d 1331 (La. 1990), the Louisiana Supreme Court held that failure to waive the twenty-four hour delay voided the defendant's sentence if the defendant attacks his sentence, even though the defendant fails to specifically allege this failure as an error on appeal. However, the Fourth Circuit, in State v. Collins,

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Bluebook (online)
766 So. 2d 585, 2000 WL 768878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bullock-lactapp-2000.