State v. Hebert

846 So. 2d 60, 2003 WL 1823537
CourtLouisiana Court of Appeal
DecidedApril 8, 2003
Docket02-KA-1252
StatusPublished
Cited by12 cases

This text of 846 So. 2d 60 (State v. Hebert) 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. Hebert, 846 So. 2d 60, 2003 WL 1823537 (La. Ct. App. 2003).

Opinion

846 So.2d 60 (2003)

STATE of Louisiana
v.
David HEBERT.

No. 02-KA-1252.

Court of Appeal of Louisiana, Fifth Circuit.

April 8, 2003.

*61 Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant-Appellant, David Hebert.

Paul D. Connick, Jr., District Attorney, 24th Judicial District Parish of Jefferson, State of Louisiana, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys/Appellate Counsel, Donald A. Rowan, Jr., Frank A. Brindisi, Assistant District Attorneys/Trial Counsel, Gretna, LA, for Plaintiff-Appellant, The State of Louisiana.

*62 Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.

SUSAN M. CHEHARDY, Judge.

David Hebert was convicted of distribution of hydrocodone and distribution of alprazolam on pleas of nolo contendere. He appeals his convictions under State v. Crosby, 338 So.2d 584 (La.1976), challenging the validity of the basis for the search of his home that disclosed the narcotics. We affirm.

On March 23, 2002 the defendant was charged in a bill of information with violation of La.R.S. 40:967(A) by distribution of hydrocodone and violation of La.R.S. 40:969(A) by distribution of alprazolam. He entered a plea of not guilty and filed several pretrial motions, including a motion to suppress his statement and a motion to suppress the physical evidence.

The trial commenced on October 30, 2002 with selection of a twelve-member jury. Outside the jury's presence, the court heard and denied the motion to dismiss. The trial then proceeded and the State made its opening statement. The defense then orally moved to reopen the motions to suppress and the court granted a second hearing on suppression. The defendant presented additional testimony, but the trial court again denied the motions to suppress.

The defendant then withdrew his not guilty plea and entered a plea of nolo contendere, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court's ruling on the motions. The trial court conducted a plea colloquy and accepted the defendant's nolo plea. The defendant subsequently was sentenced to two years on home incarceration, to be served concurrently.

FACTS

At the hearing on the motions to suppress, Sergeant Jason Renton testified that on March 23, 2002 he conducted surveillance of 628 Terrace Street as the result of complaints from neighbors regarding possible narcotic activity. He observed that cars would come to the residence and leave after staying a short time. Sergeant Renton believed this activity was related to narcotics trafficking and he requested assistance from Sergeant Bruce Harrison.

When Sergeant Harrison arrived, he and Sergeant Renton decided to conduct a knock-and-talk investigation. Renton knocked on the door of the residence and David Hebert answered. Sergeant Renton advised Hebert that he was conducting a narcotics investigation and Hebert let him inside. Once inside, Renton advised Hebert of his rights and Hebert executed a Rights of Arrestee or Suspects form. Renton explained about the complaints of activity coming and going from the residence and asked to search the house. Renton testified that Hebert appeared startled and told Renton he had a small amount of marijuana. Hebert gave Renton a film canister that had a residual amount of marijuana.

Hebert then signed a consent search form. Sergeant Renton searched the home and found valid prescription pill bottles of Vicodin (hydrocodone) and Xanax (alprazolam). The prescriptions were for the defendant's wife and had been filled that day. Renton noted, however, that numerous pills were missing from each bottle. He questioned Hebert about the missing pills and Hebert told him he was selling the pills to get through a difficult time. Sergeant Renton then arrested Hebert. Hebert subsequently gave a recorded statement, in which he admitted *63 selling his wife's prescription narcotic drugs.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court's ruling on the motion in limine was in error.

The defendant argues the trial court erred in denying his motion in limine, in which he sought to exclude all hearsay testimony from the police regarding the reason the police conducted surveillance of the defendant's home.[1] Specifically, he sought to exclude testimony that the police had received complaints from neighbors regarding narcotics-related activity.

The State claims the defendant did not preserve this issue for appeal because he did not specifically reserve his right to appeal the denial of his motion in limine.

After the denial of the defendant's motions to suppress the evidence and his statement, the defendant made an oral motion in limine to exclude as hearsay any testimony "from the police officer as to receiving information from an anonymous or confidential ... informant." The trial court denied the motion in limine.

There followed some discussion about evidence referencing the defendant's past marijuana arrest. The trial court warned that if such evidence were presented to the jury, it would be grounds for a mistrial. The prosecutor agreed and stated he would not refer to any such evidence. At the end of the discussion, defense counsel was asked by the clerk to clarify what exactly his motion in limine was. Defense counsel responded, "I didn't want them to make any reference to hearsay evidence as to why the cop was there."

Trial commenced with the charges being read and the State giving its opening statement. Prior to giving his opening statement, however, defense counsel advised the court he wished to reopen the motion to suppress to present testimony from the defendant and his wife as to what happened. The jury was removed and the defendant was allowed to present additional evidence on the motions to suppress.

The trial court again denied the motions to suppress. The defendant then withdrew his not guilty pleas and tendered an oral plea of nolo contendere to the charges under Crosby "to allow [the defendant] to appeal his motions today."[2]

A plea of nolo contendere is equivalent to an admission of guilt and, with the exception of its being inadmissible in a civil trial, is treated as a guilty plea. La.C.Cr.P. art. 552(4); State v. Villarreal, 99-827, p. 4 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745. An unqualified guilty plea waives all non-jurisdictional defects in the proceedings prior thereto and precludes review thereof either by appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La.1976). A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Cox, 02-0333, p. 5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-524.

The State asserts that the defendant failed to preserve his right to appeal the ruling on the motion in limine, citing this Courts recent decision in State v. Joseph, *64 02-717 (La.App. 5 Cir. 1/14/03), 839 So.2d 103.[3] In Joseph, the defendant filed a motion to suppress evidence that was denied. He then filed a motion to exclude expert testimony, which also was denied. The defendant then moved for a continuance and that was denied. All these motions were heard and denied over a two-week period.

The day after his motion in limine and motion for a continuance were denied, the Joseph defendant pleaded guilty under Crosby.

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Cite This Page — Counsel Stack

Bluebook (online)
846 So. 2d 60, 2003 WL 1823537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hebert-lactapp-2003.