State v. Graham

799 So. 2d 645, 2001 WL 1335820
CourtLouisiana Court of Appeal
DecidedOctober 31, 2001
Docket35,184-KA
StatusPublished
Cited by8 cases

This text of 799 So. 2d 645 (State v. Graham) 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. Graham, 799 So. 2d 645, 2001 WL 1335820 (La. Ct. App. 2001).

Opinion

799 So.2d 645 (2001)

STATE of Louisiana, Appellee,
v.
Leroy GRAHAM, Appellant.

No. 35,184-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 2001.

*647 Louisiana Appellate Project by Amy C. Ellender, Baton Rouge, Counsel for Appellant.

*648 Leroy Graham, In Proper Person, Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Michael Wayne Powell, Assistant District Attorneys, Counsel for Appellee.

Before BROWN, WILLIAMS and KOSTELKA, JJ.

KOSTELKA, J.

A unanimous jury convicted Leroy Graham ("Graham") of two counts of distribution of cocaine and one count of possession of cocaine with intent to distribute. La. R.S. 40:967. In response to a motion for post verdict judgment of acquittal, the trial court reduced the conviction for possession of cocaine with intent to distribute to possession of cocaine. Graham was sentenced to concurrent sentences of fifteen and twenty years at hard labor, the first five years without benefits, on the two distribution convictions and to five years at hard labor on the possession conviction. After the trial court denied his timely motion to reconsider sentence, Graham instituted this appeal contesting two of his convictions and the three imposed sentences. We affirm.

FACTS

On May 17, 1999, undercover Caddo Parish Sheriff's officer, Michelle Rainwater ("Rainwater"), accompanied by a confidential informant, was greeted by two black females at the door of Graham's house on Nevada Street in Shreveport, Louisiana. Upon encountering Graham inside the house, Rainwater asked him for a "forty" (forty dollars worth of crack cocaine). Graham left the room but returned stating that he only had $35 worth (.2 grams) of what field and laboratory tests later determined to contain crack cocaine. About thirty minutes after the buy, Rainwater was shown a Caddo Parish Sheriff's Office photograph of Graham from which she identified him as the seller of the cocaine. Although Rainwater was wearing a recording device during the transaction, weather conditions prohibited an audible transmission.

On May 27, 1999, Rainwater went alone to Graham's home for a second visit. After viewing Graham in the doorway of his house, Rainwater asked him if he remembered her and he said he did. Graham inquired as to what Rainwater wanted and she once again asked him for a "forty." Because Graham had to go down the street to get the drugs, he invited Rainwater into his home. While Rainwater waited for Graham for approximately two minutes, she conversed with two small children who were in the house. When Graham returned, he told the two children to leave the room. Thereafter, he placed a large rock of crack cocaine on the table and split it into two pieces. Graham asked Rainwater to break off a piece of the crack and smoke it with him. Rainwater declined, explaining that one-half of the drugs were for someone else; instead, she gave him five dollars. Once again, Rainwater wore a wire and the transaction was recorded although the tape was rather distorted. Field and laboratory tests confirmed the substance Rainwater purchased contained cocaine.

On May 28, 1999, numerous sheriff's deputies executed search and arrest warrants for Graham and his home. When the sheriffs van pulled up to the residence, there were an estimated ten to fifteen men standing in the front yard. As the van door opened, at least one of the men ran. Deputies found and arrested Graham inside the residence. At the arrest scene, Rainwater again identified Graham as the individual who sold her the cocaine in the *649 earlier buys. A small amount of crack cocaine and a crack pipe were found in Graham's underwear. Gas and electric bills for the residence in the name of Graham were also recovered. A search of the front yard of the residence also disclosed two small plastic boxes containing 5.1 grams of a substance that contained crack cocaine.

DISCUSSION

On appeal,[1] Graham contends that the testimony of Rainwater was insufficient to convict him as the perpetrator of the two counts of distribution of cocaine.[2]

The standard of appellate review for a sufficiency-of-the-evidence claim 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When the defendant claims that he is not the person who committed the crime, the Jackson rationale requires that the state negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hunter, 33,066 (La.App.2d Cir.09/27/00), 768 So.2d 687. To convict Graham of distribution of cocaine, the state was required to prove beyond a reasonable doubt that he knowingly and intentionally distributed the cocaine. State v. Seay, 521 So.2d 1206 (La.App. 2d Cir.1988).

Specifically, Graham argues that Rainwater's inexperience as an undercover officer, without corroborating evidence, created a reasonable doubt as to Graham's identity as the seller of the drugs.

Clearly, the only evidence of identification in this case was Rainwater's recognition of Graham as the perpetrator of the offenses. Rainwater testified that she had two encounters with Graham at his home during which he sold her crack cocaine. At that time, she engaged in conversation with him and had ample opportunity to view his physical features. Shortly after the first buy on May 17, 1999, Rainwater identified Graham from a Caddo Parish Sheriff's Office photograph as the seller of the cocaine.[3] From the audio recording of the second buy, Rainwater identified her and Graham's voices. On her third visit to Graham's home, Rainwater again identified him as the individual who had twice sold her crack cocaine. At trial, Rainwater identified Graham without hesitation.

Of course, the testimony of a single undercover officer who made the drug purchase is sufficient to convict an accused charged with distribution of drugs. State v. Caldwell, 32,377 (La.App.2d Cir.09/22/99), 742 So.2d 91. Certainly, Rainwater's unequivocal identification of Graham, if believed by the jury, was sufficient to negate any reasonable probability of misidentification. Obviously, the jury accepted Rainwater's testimony as credible, despite its knowledge of her inexperience *650 as a drug officer. It is the function of the jury, and not that of the appellate court, to make such credibility assessments. Hunter, supra. When viewed in the light most favorable to the state, Rainwater's identification is, beyond a reasonable doubt, sufficient proof of Graham's sale of cocaine on the two occasions. Accordingly, we reject this argument.

EXCESSIVE SENTENCE

Graham also complains that the concurrent twenty-, fifteen- and five-year sentences are constitutionally excessive given his mental, medical, family and criminal history and that there is no justification for the disparity in the two distribution sentences.[4]

For the distribution convictions, Graham faced minimum five-year and maximum thirty-year hard labor sentences, the first five years of which were to be without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b). On the possession of cocaine conviction, Graham faced a maximum five-year sentence with or without hard labor. La. R.S.

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Bluebook (online)
799 So. 2d 645, 2001 WL 1335820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graham-lactapp-2001.