State v. Sierra

83 So. 3d 239, 11 La.App. 5 Cir. 161, 2011 WL 6821397, 2011 La. App. LEXIS 1606
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-KA-161
StatusPublished
Cited by6 cases

This text of 83 So. 3d 239 (State v. Sierra) 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. Sierra, 83 So. 3d 239, 11 La.App. 5 Cir. 161, 2011 WL 6821397, 2011 La. App. LEXIS 1606 (La. Ct. App. 2011).

Opinion

WALTER J. ROTHSCHILD, Judge.

|gOn June 10, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Sierra, with possession of cocaine in excess of 28 to 200 grams in violation of LSA-R.S. 40:967(F). Defendant pled not guilty to this charge at his arraignment on July 23, 2010. The trial court denied defendant’s motions to suppress the evidence and statement on September 23, 2010.

On October 25, 2010, defendant entered a plea of guilty as charged pursuant to State v. Crosby.1 On this same date, defendant was sentenced to six years imprisonment with the Department of Corrections. The first five years of the sentence was ordered to be served without benefit of parole, probation, or suspension of sentence.

Defendant now appeals on the basis of two assignments of error: 1) the trial court erred in denying his motion to suppress the evidence, and 2) the trial court |serred in denying his motion to suppress the statement. For the reasons stated herein, we affirm the conviction and sentence, but remand the matter to the trial court for correction of the commitment.

[243]*243At the suppression hearing in this matter, JPSO Detective Elvin Módica testified that on the evening of April 22, 2010, he was assisting Detective Eric Boland and set up surveillance at the Best Buy on Veterans Highway in Metairie. Detective Módica explained that information was received from a reliable confidential informant (Cl) that a Hispanic male would be arriving at the Best Buy at 6205 Veterans Boulevard between 7:30 and 8:00 to deliver a quantity of cocaine in a silver Dodge Durango. According to Detective Módica, the informant gave Detective Boland a physical description of the Hispanic male. The informant said that the male was approximately 26 years old and about 5'8" with a heavy/large build. Because of this information, surveillance was set up during the time frame provided by the informant. Detective Módica testified that Detective Boland observed the vehicle arrive at Best Buy and a Hispanic male exited the vehicle while speaking on a cell phone. Detective Módica said at that point they decided to conduct an investigatory stop.

As Detective Módica and a second detective approached defendant, they identified themselves as police officers. Detective Módica said defendant appeared to get nervous. Detective Módica testified that defendant was holding a Marlboro cigarette box in his hand and “kind of turned and tried to discretely drop the box and began to walk away” from them. Detective Módica testified that he did not lose sight of the box after it was dropped. Defendant was detained. The second detective retrieved the Marlboro cigarette box and it contained an off-white powder inside that later tested positive for cocaine. Defendant was turned over to Detective Boland.

|4Detective Eric Boland testified that he had received specific information from a Cl, who had been used in the past many times and was paid by the Jefferson Parish Sheriffs Office, that a Hispanic male would be delivering a quantity of cocaine to the parking lot of Best Buy on Veteran’s Highway and would be arriving in a 2002 Dodge Durango. The Cl described the male as approximately 5'8" and as having a heavy-build. He testified that surveillance was set up in the parking lot and a vehicle matching the description given by the Cl arrived. He said that defendant matched the description of the male who was supposed to deliver the cocaine and that he exited the passenger side of the vehicle. He stood by his vehicle and immediately used his cell phone. He did not make any attempt to walk towards the store. It was decided that an investigatory stop would be conducted.

Detective Boland testified that defendant was advised of his rights, appeared to have understood them, and did not ask for an attorney. He said that they conversed in English and that there was no need for an interpreter, but out an abundance of caution, he obtained a Spanish interpreter. Detective Boland denied that defendant was forced, threatened, or coerced into making statements. He also denied that defendant was promised anything in exchange for his statement.

Detective Dmitri Ikonitski testified that he also assisted Detective Boland in this investigation. He explained that he was asked to assist as an interpreter because he is fluent in the Spanish language. He testified that he assisted with translation and in advising defendant of his rights. He stated that he advised defendant of his rights in Spanish and read the Miranda rights from a Spanish card. He testified that defendant was also asked if he understood his rights, and with these rights in mind, whether he wanted to answer questions and speak to the officers. He said that defendant responded positively. He [244]*244said that defendant never requested an attorney. He testified that defendant was not forced, threatened |5or coerced into making a statement, but was cooperative. He also testified that defendant was not promised anything in exchange for making the statements. Detective Ikonitski testified that defendant fully understood his rights and voluntarily signed the waiver form, agreeing to speak with him.

Detective Ikonitski also obtained a consent to search from defendant. He identified his own writing in the Spanish consent to search form. Detective Ikonitski said he read the form to defendant and defendant had a chance to read the form and to comprehend its contents. Detective Ikon-itski testified that he went over this form with defendant, who was consenting and giving them permission to search the entire premises of his house at 424 Urban-dale Street, Apartment # 1, in Marrero. Detective Ikonitski testified that defendant was not forced, threatened, or coerced into signing the form and was not promised anything in exchange. Detective Ikonitski stated that defendant signed the form and freely allowed a search of his home.

Detective Ikonitski testified that Jennifer Rodrigue, who he believed was defendant’s wife or live-in girlfriend, also consented to a search of the residence. Detective Ikonitski identified the consent form and recognized his signature. He testified that no one forced, threatened, or coerced her into signing the form.

At the conclusion of the hearing, the trial court found no constitutional violations with the evidence seized, the search, or the statements given by defendant. The trial court denied all motions to suppress.

By this appeal, defendant raises two issues involving the trial court’s ruling on the motions to suppress. The State contends that these issues were not properly preserved for appellate review, and that the appeal should therefore be dismissed.

The record in this case indicates that defendant’s guilty plea was accepted pursuant to Crosby, which allows appellate review if, at the time the plea is Centered, defendant expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, 338 So.2d 584 (La.1976). Absent specification of the specific adverse ruling, the Louisiana Supreme Court has held that an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which go to the heart of the prosecution’s case, such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196.

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Cite This Page — Counsel Stack

Bluebook (online)
83 So. 3d 239, 11 La.App. 5 Cir. 161, 2011 WL 6821397, 2011 La. App. LEXIS 1606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sierra-lactapp-2011.