State v. Seay

521 So. 2d 1206, 1988 WL 16428
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1988
Docket19394-KA
StatusPublished
Cited by38 cases

This text of 521 So. 2d 1206 (State v. Seay) 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. Seay, 521 So. 2d 1206, 1988 WL 16428 (La. Ct. App. 1988).

Opinion

521 So.2d 1206 (1988)

STATE of Louisiana, Appellee,
v.
Hoston SEAY, Appellant.

No. 19394-KA.

Court of Appeal of Louisiana, Second Circuit.

February 24, 1988.

*1208 Johnny Carl Parkerson, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., Lee Ineichen & John Spires, Asst. Dist. Atty., Bastrop, for appellee.

Before MARVIN, SEXTON and NORRIS, JJ.

NORRIS, Judge.

Hoston Seay, age 53, was charged by separate bills of information with distribution of marijuana as a principal by aiding and abetting one JoAnn Tyson, LSA-R.S. 40:966 and 14:24 (Docket No. 85-1188A), and with distribution of marijuana, R.S. 40:966 (Docket No. 85-1494A). These bills were consolidated for trial along with the related charge against Ms. Tyson for distribution of marijuana (Docket No. 85-1189A). Both Seay and Tyson were represented at trial by retained counsel, Mr. Bentley. A twelve-member jury found Seay guilty on the charge of distribution as a principal but acquitted him on the other charge. He was sentenced to serve three months at hard labor and to pay a $1,000 fine and costs, or to serve 200 days in default. Now represented by new counsel, Mr. Parkerson, Seay contends the trial court erred in the following respects:

(1) The evidence was insufficient to maintain a conviction.

(2) The defendant's cases were improperly consolidated as to charges, and as to the codefendant, without defendant's informed consent thereto.

(3) The court erred in allowing joint representation of two defendants by one attorney, without advising defendant of the dangers of joint representation.

(4) In failing to grant appellant relief due to ineffective assistance of counsel, especially in counsel's failure to compel discovery of a confidential informant.

(5) In failing to grant a new trial to serve the best interests of justice.

Because these issues do not present reversible error, Seay's conviction and sentence are affirmed.

FACTS

The first incident occurred on February 13, 1985. Officer Willie Shaw, on loan to the Morehouse Parish Sheriff's Office from El Dorado, Arkansas, was doing undercover work to investigate local drug dealings. He worked with a confidential informant (CI) who, according to Shaw, took him to City Grocery Store in Collinston. Defendant Seay was there; the CI introduced Shaw to Seay as a friend who was new in town and needed some grass. Seay replied that he didn't have anything on him, but it was "at home." He told them they could go to his house and check with his wife; he *1209 gave directions to get there. The CI and Officer Shaw proceeded to Seay's house, making an unrelated stop along the way. When they arrived at the house, they were met by a black woman, Ms. Tyson,[1] who was Seay's common-law wife. The CI, who apparently knew Ms. Tyson, introduced Officer Shaw as a cousin from out of town and told her that Seay had sent them there to get some drugs. Tyson replied that she did not have much, only two bags, but Shaw said he would take those. He gave her two $10 bills and she gave him two baggies of material that was later proved to be marijuana. As Shaw and the CI were leaving, Seay drove up to the house, got out and asked them if everything was OK; the CI told him it was, and they left. As noted, the state charged Seay with distribution of marijuana by aiding and abetting Ms. Tyson in this offense. The matter was assigned Docket No. 85-1188A; Tyson was charged by separate bill of information with distribution under Docket No. 85-1189A.

The second incident occurred on March 12, 1985. Officer Shaw was riding around and talking to people, trying to buy marijuana, when someone told him there was a guy at The Palace Club in Collinston who would sell. Shaw and the CI drove there and met a man named Freddy J who told them that for five dollars he could get them some grass. Officer Shaw watched as Freddy J walked over to a white pickup truck and got in on the passenger side; also, Seay got in on the driver's side. Shaw could not see what went on inside the truck, but Freddy J emerged with a bag of marijuana that he sold to Shaw for $25. The state charged Seay with distribution of marijuana in Docket No. 85-1494A.

In the course of the prosecution, the three charges were consolidated, although the record does not show exactly when, or on whose motion, this was done. Court minutes for April 29, 1986, the first day of trial, simply note, "trial taken up, this case consolidated with cases number 85-1494A and 85-1189A for trial." Previously, on March 5, 1986, Seay and Tyson filed a motion to allow continued representation by the same attorney, Mr. Bentley. The motion was heard on March 11, with the trial court allowing continued joint representation. The court minutes do not reflect any of this, but a transcript of the hearing and ruling has been added to the record by stipulation.

At trial on April 30, 1986, Officer Shaw was the only witness who testified as to the facts for the state. Officer Downs, Shaw's supervisor on the job, testified as to the chain of possession of the bags of marijuana. Susan Rutledge, a criminalist at the North Louisiana Criminalistics Lab in West Monroe, verified that the bags contained marijuana. In defense, Seay took the stand and denied every aspect of Shaw's testimony. Notably, he denied ever having seen Shaw before trial, and he contradicted the directions he allegedly gave Shaw and the CI to get from City Grocery to his house; he even denied knowing there was such a place as City Grocery. Tyson also took the stand and denied much of Shaw's testimony. She admitted, however, that she had seen Shaw on one previous occasion when he had come to her house with a friend of hers named Benny Wilson. The friend had introduced Shaw as his cousin and they had asked for some marijuana. Tyson testified that she told them she had none. She denied ever selling marijuana to Shaw.

Seay was acquitted on the parking lot incident with Freddy J. He was found guilty on the other charge, as was Ms. Tyson. A month later, Mr. Parkerson enrolled as new counsel for Seay and moved to continue the sentencing. On September 28, he moved for a new trial, citing all the errors urged by the instant appeal. A hearing was held on February 3, 1987, and the motion was denied. Seay was sentenced to three months at hard labor and a $1,000 fine or 200 days in default.[2] The *1210 defense filed its assignment of errors on April 29, 1987 and its motion for appeal on June 5.

ASSIGNMENT 2: Improper consolidation

By this assignment, Seay claims his cases were improperly consolidated as to charges and as to a codefendant, without his informed consent. He argues that by putting on evidence of two separate and unrelated crimes, the state was able to obtain a conviction on one of them.

We would note at the outset that all the offenses charged, two against Seay and one against Tyson, apparently could have been joined in one indictment under the provisions of LSA-C.Cr.P. arts. 493 and 494. Defendants may be charged in one or more counts together and all defendants need not be charged in each count. Since all the counts could have been joined, then consolidation was proper. LSA-C.Cr.P. art. 706.

The record, however, supports the conclusion that Seay consented to a consolidation of offenses for trial. The trial court stated on the record at the beginning of trial:

The defense and the state have agreed to try the matters together, of both defendants together, and to try Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
521 So. 2d 1206, 1988 WL 16428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-seay-lactapp-1988.