State v. Green

476 So. 2d 859
Louisiana Court of Appeal·Decided September 25, 1985·No. 17075-KA·Published·Cited by 8 cases

Opinion

476 So.2d 859 (1985)

STATE of Louisiana, Plaintiff-Appellee,
v.
David R. GREEN, Defendant-Appellant.

No. 17075-KA.

Court of Appeal of Louisiana, Second Circuit.

September 25, 1985.

*860 Hunter & Jack by Frances Baker Jack, Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Henry Brown, Dist. Atty., and James M. Bullers, Asst. Dist. Atty., Bossier City, for plaintiff-appellee.

Before HALL, MARVIN and LINDSAY, JJ.

HALL, Chief Judge.

The defendant, David R. Green, and a codefendant, Manuel D.J. Camps, were charged by bill of information with the crime of possession of more than 400 grams of a Schedule II(A)(4) controlled dangerous substance, i.e., cocaine, in violation of LSA-R.S. 40:967 F(3). Defendant Camps entered a guilty plea to a lesser charge pursuant to a plea bargain and has separately appealed his conviction and sentence. See State v. Camps, 476 So.2d 864 (La.App. 2d Cir. 1985). Defendant Green was found guilty as charged by a jury. The convictions are the result of an undercover drug investigation involving law enforcement authorities of both the State of Louisiana and the United States. Prior to defendant Green's trial in state court, Green pled guilty to a ten count indictment by a grand jury of the United States District Court for the Western District of Louisiana charging Green with one count of conspiracy to possess cocaine with the intent to distribute, eight counts of unlawful use of communication facilities, and one count of attempted distribution of cocaine. Green was sentenced to eight years imprisonment by the United States District Court. After Green was found guilty as charged in the state district court, the court sentenced Green to 20 years at hard labor, with 15 years of this sentence being without benefit of suspension of sentence, probation, or parole as required by the criminal statute.

On appeal from the state conviction, the defendant contends that (1) the trial court erred in denying defendant's motion to quash, (2) the trial court erred in denying defendant's motion to recuse the district attorney, (3) a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt of the crime charged, and (4) the trial court imposed an excessive sentence. For reasons to follow, we affirm defendant Green's conviction, amend the sentence imposed, and remand to the district court.

FACTS

In March, 1984 a confidential informant relayed information to Captain Henderson of the Bossier City Police Department implicating the defendant in a multi-state cocaine and gambling operation. Captain Henderson contacted Agent MaGee of the Federal Bureau of Investigation concerning the information related by the informant.

Agent MaGee, posing as a bookmaker, was introduced by the informant to the defendant Green at the Sheraton Inn in Bossier City. During the meeting, Green indicated to Agent MaGee that he was interested in selling one kilogram of cocaine per week during the racing season at Louisiana Downs. Agent MaGee and Green met and spoke by telephone on several occasions until they were able to arrange for a sale of the cocaine at the Sheraton Inn in Bossier City in April, 1984.

On the evening of April 12, 1984, Agent MaGee introduced Green to another FBI *861 undercover agent, Freddie Cleveland, who was introduced as the man who would be responsible for testing the cocaine in the upcoming deal. Agents MaGee and Cleveland then showed Green $250,000.00 in their possession as "show money." After Green viewed the money, the parties agreed that Green would sell the agents 2 kilograms of cocaine for $80,000.00. Arrangements were made for the cocaine to be brought from New Orleans the following day.

Green traveled to New Orleans where he met Camps at the airport. The two men then traveled together to Bossier City with the cocaine.

At 5:00 p.m. on April 13, 1984, Green contacted Agents MaGee and Cleveland by telephone. Green indicated that he and his partner, Mannie Camps, were ready to consummate the deal. A meeting was set up at the Sheraton Inn in Bossier City.

The agents met Green and Camps in room 104 of the motel. After a short conversation, Camps asked Agent Cleveland to "check on the stuff." Camps and Agent Cleveland proceeded to room 116 while Green and Agent MaGee waited outside the room by the pool. Green indicated to Agent MaGee that his job was to "cover Mannie."

Agent Cleveland was wired with a transmitting device. Federal, state, and local law enforcement authorities waited in an office behind the front desk of the Sheraton Inn listening to the transaction.

Once inside room 116, Agent Cleveland observed Camp walk to the back of the room and remove a blue shaving kit from a clothes bag hanging in a closet. Camps opened the shaving kit and pulled out a white, powdery substance wrapped in newspaper and plastic. Agent Cleveland took a sample from the package for testing purposes. At that time law enforcement officers began approaching room 116 and upon observing the officers, defendant Green attempted to exit the pool area. Agent MaGee then placed defendant Green under arrest.

Hearing a noise outside, Camps went to look outside the window and was followed from behind by Agent Cleveland who opened the door to allow the arresting officers into the room. The officers entered the room, placed Camps under arrest, and seized a package of cocaine lying on the bed. A subsequent search of the room revealed another package of cocaine concealed in a trash can.

ASSIGNMENT OF ERROR NUMBER 1— MOTION TO QUASH

By this assignment of error, defendant complains of the denial of his motion to quash in which he urged that his continued prosecution and subsequent punishment by the State of Louisiana for the same drug transaction giving rise to the federal indictment violated due process, fundamental fairness, the prohibition against double jeopardy, and exposed him to excessive punishment.

The issues raised by the motion to quash were considered, discussed, and resolved adversely to the defendant in State v. Camps, supra. For the same reasons expressed in that opinion, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 2— RECUSAL OF DISTRICT ATTORNEY

By this assignment, defendant Green contends that the trial court erred in denying defendant's motion to recuse the district attorney due to the district attorney's involvement in the investigation and arrest of the defendant.

On the day of the arrest, Captain Henderson met District Attorney Brown in the detective's office of the Bossier City Police Department before proceeding to the Sheraton Inn where the arrest was to occur. Captain Henderson discussed the upcoming arrest with the district attorney and asked the district attorney if he wanted to come along. Captain Henderson asked the district attorney for some legal advice, and eventually the district attorney agreed to go to the Sheraton Inn for the arrest. The district attorney and Henderson went to the hotel in separate cars but arrived at about the same time. Captain Henderson *862 and the district attorney met law enforcement personnel already present and located in the manager's office of the Sheraton Inn. While in the office, the various law enforcement agents discussed the logistics of the upcoming arrest and additionally listened to a transmission emanating from FBI Agent Cleveland's hidden microphone from room 116. The district attorney stayed in the manager's office until the arrest had taken place. Mr.

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State v. Green, 476 So. 2d 859 (La. Ct. App. 1985).

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