State v. Pounds

789 So. 2d 721, 2001 La. App. LEXIS 1694, 2001 WL 669972
CourtLouisiana Court of Appeal
DecidedMay 30, 2001
DocketNo. 2000-KA-2118
StatusPublished
Cited by1 cases

This text of 789 So. 2d 721 (State v. Pounds) 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. Pounds, 789 So. 2d 721, 2001 La. App. LEXIS 1694, 2001 WL 669972 (La. Ct. App. 2001).

Opinion

1LOVE, Judge.

STATEMENT OF CASE

By bill of information filed March 30, 2000, defendant was charged with possession with the intent to distribute marijuana and possession of a firearm as a convicted felon.1 At arraignment on April 3, 2000, he pled not guilty. On April 10, 2000, counsel waived all pretrial motions after receiving a copy of the police report, which is not a part of the record. Following trial on April 25, 2000, a twelve-member jury found defendant guilty of attempted possession with the intent to distribute marijuana. The second count of the bill of information was nolle prosequied by the state on July 11, 2000. Afterwards, defendant was sentenced to serve ten years at hard labor. He then pled guilty to a multiple bill of information. The district court vacated the previous sentence imposed and re-sentenced defendant as a third felony offender to serve ten years at hard labor. Defendant filed a motion to reconsider his sentence, which was denied, but his motion for appeal was granted.

¡¿STATEMENT OF FACTS

At approximately 9:00 p.m. on February 10, 2000, Officer Derek Burke was conducting an undercover surveillance in an apartment complex on Curran Boulevard in Orleans Parish. While there, he observed defendant exit onto the well-lit balcony in front of apartment F235, leaving the front door to the apartment open. Shortly afterwards, John Mitchell approached defendant on the balcony. Mitchell handed defendant currency, and defendant gave him a small object in return. Officer Burke observed this transaction through binoculars, and relayed this information to a back-up team of officers, which then approached Mitchell.

Detective Jack Schnapp, a member of the back-up team, testified that when he and his partner approached Mitchell in a marked police unit, Mitchell removed an object from his pocket and dropped it on the ground. The officers found that the [723]*723object was a small Ziploc bag containing marijuana, and they arrested Mitchell.

Because of the proximity of the arrest of Mitchell and apartment F235, the officers acted quickly to secure the apartment so that evidence could not be destroyed. Within less than two minutes after Mitchell’s arrest, the officers kicked in the front door of the apartment and found Patricia Pugh, two small children, and defendant inside. Next to the door, Officer Hamilton observed an open shoebox containing several small bags of what appeared to be marijuana and some currency. After securing the apartment, Ms. Pugh, as lessee, consented to a search of her apartment but nothing more was found.2 In all, twenty-six small bags were seized along with $62 .00 from the shoebox. Detective Burke identified defendant |sfrom a photograph taken after defendant’s arrest. The parties stipulated that the twenty-six small bags contained marijuana.

Patricia Pugh testified that defendant is the father of her two children. Roughly seven months had elapsed since she had last seen defendant, and defendant was at her apartment only to pick up his children. She stated that the marijuana found by the police was for her personal use, and defendant did not know that it was in the apartment. Ms. Pugh further stated that defendant exited the apartment only once in the thirty minutes that he was there, and that was to take out the garbage. Although she saw Mitchell that evening, Ms. Pugh testified that he was never on the balcony with defendant and that she did not observe defendant sell anything.

DISCUSSION

ERRORS PATENT

No errors patent were found.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant argues that his counsel was ineffective because counsel failed to move to suppress evidence of marijuana, which was illegally seized.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced him. Counsel’s performance is deficient when counsel makes errors so serious that the Sixth Amendment “right to counsel” is violated. Deficient performance prejudices a defendant when counsel’s errors are so serious that the defendant is deprived of a fair trial that leads to a reliable result. Id., 466 U.S. at 687, 104 S.Ct. 2064. A claim of ineffective assistance may be 14disposed of if either of the Strickland prongs has not been met. State v. James, 555 So.2d 519, 524 (La.App. 4 Cir.1989).

Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief in the trial court where an evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729, 737 (La.1984); State v. Sparrow, 612 So.2d 191, 199 .(La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444, 449 (La.1983); State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888, 896. Here, the record contains sufficient facts to address defendant’s claim.

Defendant argues that the marijuana evidence was illegally seized because the officers entered the apartment without [724]*724a warrant and without probable cause. In State v. Page, 95-2401, p. 10, (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709, this Court discussed warrantless entry into a protected area:

There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320, 1326 (La.1979). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

See also State v. Brown, 99-0640 (La.App. 4 Cir. 5/26/99), 733 So.2d 1282, 1287-88; State v. Blue, 97-2699 (La.App. 4 Cir. 1/7/98), 705 So.2d 1242, 1244; State v. Tate, 623 So.2d 908, 914-15 (La.App. 4 Cir.1993).

Defendant argues that no objective evidence was presented establishing probable cause. Instead, the officers acted solely on Detective Burke’s belief that | Bhe had witnessed a narcotics transaction. Specifically, defendant argues that no evidence was presented showing that he possessed marijuana or that marijuana was being stored in the apartment. Defendant also asserts that there is no proof that he reentered apartment F235 following the alleged sale.

At trial, the State failed to show the reason for their surveillance of defendant and it failed' to show that marijuana was inside of apartment F235.3 Still, the officers had probable cause to arrest defendant. Detective Burke witnessed the exchange between defendant and Mitchell, and Detective Burke’s observations were corroborated. Mitchell, who was involved in the exchange with defendant, dropped a small Ziploc bag of marijuana when police approached him immediately following the exchange.

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State v. Howard
120 So. 3d 831 (Louisiana Court of Appeal, 2013)

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Bluebook (online)
789 So. 2d 721, 2001 La. App. LEXIS 1694, 2001 WL 669972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pounds-lactapp-2001.