State v. Spikes

683 So. 2d 1363, 1996 La. App. LEXIS 2739, 1996 WL 663799
CourtLouisiana Court of Appeal
DecidedNovember 8, 1996
DocketNo. 96 KA 0334
StatusPublished
Cited by1 cases

This text of 683 So. 2d 1363 (State v. Spikes) 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. Spikes, 683 So. 2d 1363, 1996 La. App. LEXIS 2739, 1996 WL 663799 (La. Ct. App. 1996).

Opinion

JaSHORTESS, Judge.

Willie E. Spikes (defendant) was charged by bill of information with three counts of distribution of cocaine, La. R.S. 40:967. After trial by jury, he was convicted on all counts. The court sentenced him to 150 months imprisonment at hard labor on the first count. On the second and third counts, the court sentenced defendant to sixty months imprisonment at hard labor on each count, to be served concurrently with each other but consecutively to the sentence on the first count. Defendant was given credit for time served.

Defendant was granted an out-of-time appeal. He did not, however, file formal assignments of error as required by Louisiana Code of Criminal Procedure article 844. Since defendant articulated three assignments of error in his appellate briefs,2 we will consider the merits of these assignments of error, per State v. Galliano, 648 So.2d 911 (La.1995), citing Code of Criminal Procedure article 916(1) and (5).

Defendant has assigned these errors: (1) that the trial court erred in refusing to order the State to disclose the identity of its confidential informant, (2) that the trial court erred in admitting into evidence “personnel files” of one of the State’s witnesses, and (3) that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses with which he was charged.

SUFFICIENCY OF THE EVIDENCE

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. If the entirety of the evidence, including erroneously admitted evidence, is insufficient to support the conviction, the defendant must be discharged as to that crime, which would moot the other as[1366]*1366signments of error. State v. Hearold, 603 So.2d 731, 734 (La.1992).

Islf the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, however, the defendant is not entitled to an acquittal. Instead, the reviewing court must then consider the assignments of trial error to determine whether he is entitled to a new trial. If the reviewing court determines there has been prejudicial trial error, the defendant must receive a new trial. He is not, however, entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 40-41, 109 S.Ct. 285, 290-291, 102 L.Ed.2d 265 (1988); State v. Hearold, 603 So.2d at 734.

As defendant has alleged the evidence herein was insufficient to support his convictions, we must first review the entirety of the evidence, both admissible and inadmissible.

Defendant and his wife, Toñita Abrams Spikes (Abrams), were charged in a joint bill of information with selling crack cocaine once on August 4, 1992, and twice on August 14, 1992, in Bogalusa. Defendant and Abrams were not married at the time the offenses allegedly were committed. The purchaser of the drugs was Gordon Parker, an itinerant “drugbuster.” Parker, a black man, worked undercover with various law enforcement agencies, volunteering (for a daily fee and mileage, paid in cash) to go into predominantly black areas and buy drugs.3 He telephoned the Bogalusa police chief and offered his services, which were accepted. Parker testified he lived in Terrytown (Gretna), Louisiana, and commuted to Bogalusa daily for approximately eighteen days, beginning in late July, 1992. During that time he made drug buys resulting in the arrests of 75 people on 90 to 95 charges.

Three police officers comprised the Boga-lusa Drug Task Force: Mike Edwards and Ed Gomez of the Bogalusa Police Department and Detective David Feinberg of the Washington Parish Sheriffs Office. Edwards was the coordinator. On each evening Parker worked with the task force, the officers searched Parker’s person and vehicle, gave him a police radio to place under the seat of his car and a specific amount of money, and directed him where to go to buy drugs. The officers |4followed Parker but stayed far enough away that they would not be seen and recognized. They were not close enough to see or hear the transactions but relied solely on Parker. Parker’s transactions were not recorded on videotape or audiotape or by camera, and he did not wear a body microphone, commonly called a “wire.” After each transaction, Parker radioed the officers, then met them in some secluded area to deliver the drugs he had purchased. At that meeting he would provide the officers with the name and a brief description of the person from whom he had purchased the drugs.

Parker testified that on August 4,1992, he drove to Second Avenue and parked in a bar’s parking lot. Shortly thereafter defendant and Abrams arrived in a black truck. Parker bought one rock of cocaine from defendant for $100.00. He then left, contacted the task force, and gave the cocaine to the officers ten minutes later. He stated he told Gomez defendant’s name and the place and approximate time of the drug purchase. He also provided a description of the truck the dealer was driving, although he was unable to obtain a license number. Gomez recorded this information on the envelope containing the cocaine.

Parker further testified that on August 14, 1992, he bought three rocks of crack cocaine from Abrams for $30.00. He stated Abrams was seated in the passenger seat of the black truck, but defendant was not present. Parker returned later that night and bought two more rocks from defendant and Abrams for $20.00. After each transaction he met with the officers, turned over the evidence, and described the dealers and their vehicle, including the license number.

Parker stated that before purchasing drugs from defendant, he heard other people [1367]*1367can him “Willie” or ‘Wild Bill.” Edwards and others told him ‘Wüd Bül” was Willie Spikes. Parker unequivocally identified defendant in court as the man from whom he made the three purchases. He stated he has never made a misidentification.

After each purchase, the officers drove through the area looking for the persons and truck described by Parker. A Heense check showed the truck was owned by defendant. Edwards assumed defendant was in the area of the drug buy because he saw his truck, but he did not see defendant. Gomez and Fein-berg alsojjjsaw defendant’s truck. Although they were riding in the same vehicle on August 14, Gomez testified they did not see defendant, while Feinberg said he saw him standing in the Fourth Street and Second Avenue area.

Edwards stated defendant’s father owns a bar on the street where defendant’s truck was seen. Kasandra Ishman corroborated that fact and testified she has seen defendant working in that bar.

Parker described defendant to the officers as a medium-complexioned black man of medium build, about 5'9" to 5'10" tall, weighing about 180 pounds, with a “low crop” hair style and wearing a thin gold chain. He did not describe defendant’s clothing, and he failed to note defendant’s mustache. Parker bought drugs from three other dealers on August 14, and each was described simply as a black man, medium build, about 5'9" to 5'10" tall, weighing about 180 pounds.

Defendant sought to impeach Parker’s credibility through the testimony of Ishman, a cocaine addict who testified she had not used cocaine for eight months before the trial.

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Related

State v. Milto
751 So. 2d 271 (Louisiana Court of Appeal, 1999)

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Bluebook (online)
683 So. 2d 1363, 1996 La. App. LEXIS 2739, 1996 WL 663799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spikes-lactapp-1996.