State v. Sewell

894 So. 2d 1286, 2005 La. App. LEXIS 556, 2005 WL 474866
CourtLouisiana Court of Appeal
DecidedMarch 2, 2005
DocketNo. 39,380-KA
StatusPublished
Cited by1 cases

This text of 894 So. 2d 1286 (State v. Sewell) 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. Sewell, 894 So. 2d 1286, 2005 La. App. LEXIS 556, 2005 WL 474866 (La. Ct. App. 2005).

Opinion

I,GASKINS, J.

The defendant, Ricky Sewell, was convicted by a jury of five counts of distribution of cocaine. He was sentenced to serve five years at hard labor without benefit of parole, probation, or suspension of sentence for each count. The sentences for the first three counts were ordered to be served consecutively. The sentences for the fourth and fifth counts were ordered to be served concurrently with the sentences for the first three counts. The defendant appeals, claiming insufficiency of the evidence against him and that the sentences imposed are excessive. For the following reasons, we affirm the convictions and sentences.

FACTS

Police received information about drug trafficking in Monroe, Louisiana, and began an undercover investigation targeting the defendant. Detective David May coordinated the investigation. Officers Jay Ri-gal and Nikki Johnson of the West Monroe Police Department worked undercover.

[1289]*1289On January 9, 2001, Rigal was supplied with $100 of prerecorded money and an audio transmitter. May showed Rigal a photograph of the defendant from the Automatic Fingerprint Identification System (AFIS). Rigal and an informant drove to 203 North 11th Street where they met the defendant. May and other officers remained a few blocks away. The defendant told Rigal to pull his car into the driveway. The defendant went inside the house and returned with five rocks of crack cocaine which Rigal purchased for $100. The transaction was completed through the car window. Rigal stated the defendant was approximately three feet away. This investigation was Rigal’s seventeenth undercover operation.

12Later that night, Rigal again viewed the defendant’s photograph and confirmed that it was the defendant who sold him drugs. Rigal submitted the drugs as evidence. The audio system failed to record the transaction.

On January 11, 2001, Johnson was given prerecorded money and an audio transmitter. She was instructed to target the defendant or another specified individual. May showed Johnson the photograph of the defendant before she and the informant drove to the house at 203 North 11th Street. The informant knocked on the door and entered the house. The defendant then came to the door and waved for Johnson to enter. Johnson went inside the house, leaving the audio transmitter in the vehicle. She purchased five crack cocaine rocks from the defendant for $100. Johnson identified the man in the photograph as the defendant who sold her drugs and she submitted the drugs as evidence.

On January 24, 2001, Johnson went to the same location to make a drug purchase. She was approached by several people who offered to sell her drugs. She saw the defendant exiting a residence across the street and chose to buy drugs only from the defendant. Johnson bought six crack rocks from the defendant for $100.

On January 25, 2001, Johnson observed the defendant unloading a white pick-up truck in the vicinity of the previous purchases. She bought another six crack rocks from the defendant for $100.

Johnson made a final purchase of six crack rocks from the defendant on January 31, 2001, for $100. The defendant gave Johnson his cell phone number. The last three transactions were recorded by audio monitoring and |3those tapes were played in court. Johnson testified the man who sold her the crack cocaine answered to the name “Ricky.”

A forensic chemist verified that all five purchases submitted as evidence were crack cocaine. An arrest warrant was issued for the defendant on March 23, 2001. The defendant was interviewed at the police department, advised of the arrest warrant, and released when he agreed to reveal his suppliers and assist in the investigation. The defendant failed to cooperate and was arrested on April 22, 2001.

At trial, May, Rigal, and Johnson testified. Both Rigal and Johnson identified the defendant in court as the person who sold them crack cocaine.

The defendant took the stand in his own defense. He testified that at the time of the offense, he lived at 203 North 11th Street with his grandmother, his girlfriend, a nephew, and two male boarders. He attacked the validity of the officers’ identification of him, arguing that other men who looked similar to him lived at the residence. The defendant claimed that he and his nephew are approximately the same height.

The defendant stated that he had never met Rigal or Johnson, never owned or [1290]*1290used a white pick-up truck, never had a cell phone with the number stated by Johnson, and that the officers’ testimony was untrue. He stated that when he was initially interviewed, May told him that “he had warrants” for him and that “he wanted me to tell on someone else about a drug deal. And so I told him that if I find out something about it or say something, you know I heard something about it, that I will make him aware 14of what he wanted to know.” He testified that he was photographed at the interview.

The defendant’s girlfriend, Martha Quarles, testified she had never seen the defendant distribute cocaine; however, she admitted that she had a conviction for distribution of crack cocaine. She stated she had never talked to police about the defendant selling crack cocaine or told police that he had no legitimate means of income. Officer Thomas Rhodes testified on rebuttal that Quarles told him the defendant had no legitimate means of income in December 2002.

The defendant was convicted of all five counts of distribution of cocaine. On February 27, 2004, he was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence for each count. The first three counts were ordered to be served consecutively. The fourth and fifth counts were ordered to be served concurrently with the sentences for the first three counts. A motion to “amend or modify sentence pursuant to La. C. Cr. P. article 822” was filed and denied. No motion for post verdict judgment of acquittal was filed. The defendant appealed his convictions and sentences.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence adduced at trial was not sufficient to support a verdict of guilty of the charges of distribution of cocaine. This argument is without merit.

Although a question of sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal, this court may consider | Bsufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273. The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, swpra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984).

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Bluebook (online)
894 So. 2d 1286, 2005 La. App. LEXIS 556, 2005 WL 474866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sewell-lactapp-2005.