State v. Miller

561 So. 2d 892, 1990 WL 60941
Louisiana Court of Appeal·Decided May 9, 1990·No. 21444-KA·Published·Cited by 56 cases

Opinion

561 So.2d 892 (1990)

STATE of Louisiana, Appellee,
v.
Larry D. MILLER, Appellant.

No. 21444-KA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 1990.

Larry Jefferson, Monroe, for appellant.

James A. Norris, Jr., Dist. Atty., Charles Brumfield, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, NORRIS and LINDSAY, JJ.

*893 LINDSAY, Judge.

The defendant, Larry D. Miller, was found guilty as charged after a jury trial on two counts of distribution of marijuana and one count of distribution of cocaine, in violation LSA-R.S. 40.966 & 967. He was sentenced to imprisonment at hard labor for five years on each count. The trial court ordered that the sentences for the marijuana charges be served concurrently with each other. The court further ordered that the sentence for the cocaine conviction be served consecutively to the other sentences.

FACTS

In February of 1988, Deputy Sheriff Robert Henry of the Union Parish Sheriff's Office participated in an undercover narcotics investigation in Bastrop, Louisiana. Deputy Henry was to assist Officer Gary Freeman of the Bastrop Police Department. On February 3, 1988, Officer Freeman sent Deputy Henry and a reliable confidential informer (RCI) to seek out illegal drug sales in Bastrop.

Deputy Henry and the RCI went to Whaley's Lounge, where they encountered Leroy Bates. Bates informed them that he could secure illegal drugs for them. Bates made a telephone call, and shortly thereafter a customized, 1986 black Cadillac drove up in front of the lounge. Deputy Henry gave Bates $130 ($80 for one ounce of marijuana and $50 for a half-gram of cocaine). Bates then gave the money to the driver of the Cadillac who drove away. The vehicle returned about 15 minutes later.

Upon its return, Deputy Henry got in the vehicle and exchanged introductions with the driver, who identified himself as either "Larry" or "Larry Miller." The driver proceeded a short distance from the lounge and pulled in a private driveway. The driver produced two baggies from between his legs and handed them to Officer Henry. One baggie contained a green vegetable matter, while the other contained a white, powdery substance. The driver then returned to the lounge and dropped off Deputy Henry.

Immediately thereafter, Deputy Henry met with Officer Freeman and gave him the baggies. Subsequent analysis at the North Louisiana Criminalistic Laboratory demonstrated that the baggies contained marijuana and cocaine.

Deputy Henry also told Officer Freeman the name given him by the driver. When they returned to the police department, Officer Freeman showed the deputy a photo of the defendant. Deputy Henry positively identified the man in the photo as the driver of the Cadillac.

On February 10, 1988, Deputy Henry returned to the same lounge. He approached the defendant, who was standing outside, and told him that he wished to purchase more drugs, preferably marijuana. The deputy gave him $80 for the purchase. The defendant left and returned 15 to 20 minutes later. Deputy Henry got in the defendant's car, where the defendant gave him a baggie. The contents of this baggie were later found to be marijuana.

During their conversation, the defendant told Deputy Henry that he preferred selling cocaine and that he usually conducted his deals at the local motel. The defendant encouraged the deputy to contact him for future cocaine purchases. After the transaction was completed, Deputy Henry met with Officer Freeman to transfer custody of the evidence, i.e., the baggie.

On March 3, 1988, Officer Freeman and Deputy Henry were together in the parking lot at the Bastrop Police Department when the defendant drove through the parking lot. Deputy Henry, who was still assisting in area narcotics investigations, saw the defendant and attempted to duck down out of sight. Certain that the defendant had seen and recognized the two officers together, Officer Freeman arrested the defendant.

A bill of information was filed on March 22, 1988, charging the defendant with two counts of distribution of marijuana, in violation of LSA-R.S. 40:966, and one count of distribution of cocaine, in violation of LSA-R.S. *894 40:967.[1]

On January 24, 1989, a preliminary examination was held. Both Deputy Henry and Officer Freeman testified. Probable cause for the charges was found.

Trial by jury was held on April 24 & 25, 1989. The state again presented the testimony of the two law enforcement officers, as well as evidence from the crime lab, identifying the marijuana and the cocaine. The defense presented the testimony of Bates, who denied introducing Deputy Henry to the defendant or otherwise participating in any drug transaction. The jury convicted the defendant as charged on all three counts.

On June 16, 1989, the trial court sentenced the defendant to imprisonment at hard labor for five years on each of the three counts. The court directed that the sentences on the marijuana charges be served concurrently, and that the sentence for the cocaine charge be served consecutively to the other charges.

The defendant appeals from his convictions and sentences. He assigns as error the following: (1) that the jury erred in finding that the evidence presented at trial was sufficient to convict him where there were several discrepancies between Deputy Henry's testimony at the preliminary examination and at the trial; and (2) the trial court erred in imposing excessive sentences by ordering him to serve five years at hard labor on each charge and in ordering one sentence to be served consecutively to the others.

SUFFICIENCY OF EVIDENCE

The defendant contends that the evidence presented by the state was insufficient to support the jury's verdicts of guilty. In particular, he argues that the state failed to prove beyond a reasonable doubt that he was the person who sold the drugs to Deputy Henry. He points to several alleged discrepancies between Deputy Henry's trial testimony and his earlier testimony at the preliminary examination. He claims that these discrepancies cast suspicion upon the deputy's general credibility and his identification of the defendant in particular.

In reviewing sufficiency challenges, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational factfinder could have found that the state proved beyond a reasonable doubt that the defendant committed the acts necessary to constitute every element of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied 544 So.2d 398 (La. 1989).

Where there is conflicting testimony as to factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not of its sufficiency. A determination of the weight of the evidence is a question of fact over which this court has no appellate jurisdiction in criminal cases. La. Const. 1974, Art. 5, § 10(B); State v. Henry, 457 So.2d 1244 (La.App. 1st Cir.1984). Thus, a determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal. State v. Henry, supra.

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986).

The discrepancies alleged by the defendant incl

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