State v. Rodriguez

781 So. 2d 640, 2001 WL 170945
CourtLouisiana Court of Appeal
DecidedFebruary 14, 2001
Docket2000-KA-0519
StatusPublished
Cited by24 cases

This text of 781 So. 2d 640 (State v. Rodriguez) 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. Rodriguez, 781 So. 2d 640, 2001 WL 170945 (La. Ct. App. 2001).

Opinion

781 So.2d 640 (2001)

STATE of Louisiana,
v.
Antonio RODRIGUEZ.

No. 2000-KA-0519.

Court of Appeal of Louisiana, Fourth Circuit.

February 14, 2001.

*642 Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

*643 Court composed of Judge PLOTKIN, Judge WALTZER, and Judge TOBIAS.

Judge STEVEN R. PLOTKIN.

Antonio Rodriguez was convicted of attempted possession of cocaine and sentenced to eight years at hard labor. On appeal, defendant asserts three assignments of error. We affirm the conviction and affirm the sentence, as amended, for the reasons that follow.

STATEMENT OF THE CASE

Defendant was charged by bill of information on March 16, 1998, with possession of cocaine in amount more than twenty-eight grams but less than two hundred grams, a violation of La. R.S. 40:967(A).[1] Defendant pleaded not guilty at his arraignment. On September 25, 1998, this court granted defendant's writ application for the sole purpose of transferring it to the trial court for consideration as a motion for speedy trial. On October 15, 1998, defendant was tried by a twelve-person jury and found guilty of attempted possession of cocaine in an amount more than twenty-eight grams but less than two hundred grams. On January 4, 1999, this court denied the defendant's writ application seeking an appeal. On March 17, 1999, the trial court found that defendant was not a second-felony habitual offender, and sentenced him to eight years at hard labor, without benefit of parole, probation or suspension of sentence, with credit for time served. On May 11, 1999, this court granted defendant's writ application, ordering the trial court to grant defendant an appeal as to his cocaine conviction.

STATEMENT OF FACTS

New Orleans Police Officer Jose Torres testified that on January 21, 1998, he was traveling westbound on N. Broad Street, near Lapeyrouse Street, when he observed a gold Volkswagen Jetta with an expired temporary tag. He activated his emergency lights and siren in an attempt to stop the vehicle. The vehicle turned off N. Broad Street and looped around the block. At N. Broad Street, defendant exited the vehicle, placed a white object under his sweatshirt, and crossed the street.

Officer Torres exited his vehicle and chased defendant, who tossed a white plastic bag to the ground as he fled. Officer Torres apprehended defendant and recovered the bag from a grassy area. The bag contained cocaine. Officer Torres also found a .380 caliber Larson handgun next to the bag of cocaine. Officer Torres stated on cross-examination that he did not see the defendant throw the gun to the ground or see it tumble from the bag.

New Orleans Police Department Criminalist Teresia Lamb, qualified by stipulation as an expert in the testing, analysis and identification of controlled dangerous substances, tested the substances in four of six bags comprising State's exhibit number one. The substances tested positive for cocaine. The total weight of the cocaine was slightly over one hundred fifty grams.

ERRORS PATENT

A review of the record reveals one error patent. The trial court sentenced defendant to imprisonment without benefit of parole, probation or suspension of sentence. La. R.S. 40:967(F)(1)(a) provides that a person convicted of possessing cocaine in the amount of twenty-eight grams or more, but less than two hundred grams, shall be sentenced to imprisonment at hard labor for not less than ten years, nor *644 more than sixty years. La. R.S. 40:967(G) provides that the sentence of a person sentenced under Subsection F shall not be suspended. The provision bars a defendant's eligibility for probation or parole only prior to his serving the minimum sentence.

Defendant was convicted of an attempt. La. R.S. 14:27 provides that a person convicted of an attempt of the variety in the instant case shall be imprisoned in the same manner as for the offense attempted, with such imprisonment not exceeding one-half of the longest term of imprisonment prescribed for the offense so attempted. Thus, there effectively is no minimum sentence for a person convicted of attempted possession of cocaine in an amount more than twenty-eight grams but less than two hundred grams. Therefore, defendant's sentence must be amended to delete the provision denying him the benefits of probation and parole.[2]

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant claims that the trial court erred in admitting evidence of the handgun found by Officer Torres near the bag of cocaine.

The minute entry from the date of trial notes that after the jury was sworn defense counsel filed an oral motion in limine, which the trial court denied. There is no indication of what evidence this motion covered. Defense counsel did not object when Officer Torres testified about his discovery of the gun. However, defense counsel objected to the introduction of the gun in evidence, referring to reasons set forth prior to trial. Thus, it appears that the admissibility of the gun, and evidence pertaining thereto, was contested by the defense, and the issue is preserved for review.

Defendant characterizes the issue as one of relevance. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Relevant evidence is generally admissible. La. C.E. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

A trial court's ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Lewis, 97-2854, p. 20 (La.App. 4 Cir.5/19/99), 736 So.2d 1004, 1017, writ denied, 99-2694 (La.3/17/00), 756 So.2d 325; State v. Badon, 95-0452, p. 8 (La.App. 4 Cir.11/16/95), 664 So.2d 1291, 1296. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. See State v. Lambert, 98-0730, pp. 21-22 (La.App. 4 Cir.11/17/99), 749 So.2d 739, 755; State v. Brooks, 98-0693, pp. 16-17 (La.App. 4 Cir.7/21/99), 758 So.2d 814, 822-23, writ denied, 99-2519 (La.2/25/00), 755 So.2d 247.

Strictly speaking, evidence as to the seizure of the gun, and the gun itself, were not relevant to the issue of whether defendant possessed the cocaine. However, this evidence was subject to admissibility under La. C.E. art. 404(B) as integral act evidence, that is, evidence so "related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it." State v. Brewington, 601 *645 So.2d 656, 657 (La.1992). The test for admissibility of integral act evidence is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness. State v. Colomb, 98-2813, p. 4 (La.10/1/99), 747 So.2d 1074, 1076.

In Colomb, police arrested the defendant after seeing him standing at the open door of his van stopped in the middle of the street in area known for drug trafficking with five or six known drug traffickers gathered around him.

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Cite This Page — Counsel Stack

Bluebook (online)
781 So. 2d 640, 2001 WL 170945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-lactapp-2001.