State v. Sterling

558 So. 2d 1336, 1990 La. App. LEXIS 574, 1990 WL 27014
CourtLouisiana Court of Appeal
DecidedMarch 14, 1990
DocketNo. 88-KA-0747
StatusPublished
Cited by1 cases

This text of 558 So. 2d 1336 (State v. Sterling) 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. Sterling, 558 So. 2d 1336, 1990 La. App. LEXIS 574, 1990 WL 27014 (La. Ct. App. 1990).

Opinion

ARMSTRONG, Judge.

Defendant, Terrell V. Sterling, was charged by bill of information with possession with intent to distribute cocaine, a violation of La.R.S. 40:967, and possession of heroin, a violation of La.R.S. 40:966. Following a trial by jury he was found guilty as charged of possession with intent to distribute cocaine, and not guilty of possession of heroin. He was subsequently [1338]*1338sentenced to serve twenty years at hard labor. Defendant now appeals.

On June 13, 1985, after receiving information that drugs were being sold from 1409 South Johnson Street, apartment “D”, police arranged for a confidential informant to make a controlled purchase of heroin at that address from a subject named Milton Isaacs. After the purchase was made police obtained a search warrant for the apartment.

The search warrant was executed at 3:00 P.M. on June 18, 1985 by a group of police officers. Officer Steve Imbraguglio testified that he and his partner, Officer Jeffery Robertson, acting as decoys, drove up to the front of the building in an unmarked police vehicle to attract the attention of a group of men gathered outside. Officers Imbraguglio and Robertson approached the men while other officers proceeded to the rear of apartment “D”, which was located on the second floor. Imbraguglio testified that he and Robertson identified themselves as police officers and asked the men if they had any weapons. Officer Imbra-guglio stated that he and his partner questioned the men for several minutes, but that none of them were arrested, and after questioning, they were free to go.

After knocking on the rear door, receiving no response, and hearing sounds from inside the apartment, Officers Ortero, Joa-no, Palermo, Bibbins, and Cooke forced entry into the apartment. After entering, Officers Ortero, Joanos, and Bibbins observed the defendant and a subject named Brian Coleman in the living room. No one else was in the apartment. Coleman attempted to flee through the bedroom but was apprehended by one officer. The defendant fled through the front door of the apartment but was apprehended by Officer Ortero. A search of the apartment led to the discovery of a matchbox and a film canister, each containing individual packets of cocaine. Also recovered was a container with heroin in it, a gram scale, a gun, and a substance used to dilute cocaine.

After these items were found the defendant was arrested for possession of heroin and possession with intent to distribute cocaine. Officer Ortero subsequently searched the defendant and found a clear plastic bag containing eight smaller bags of cocaine in his left trouser pocket. Four hundred and ninety-one dollars was found in his right pants pocket. Officer Joanos viewed this search'and seizure of evidence from the person of the defendant.

Officer Michael Glasser testified as an expert in the field of the packaging and distribution of controlled dangerous substances such as cocaine. The defense stipulated to his status as an expert. Officer Glasser testified that the packaging of the cocaine found in defendant’s pocket, eight small bags in a larger bag, was consistent with packaging for retail sales. He also stated that the wad of money recovered from the defendant, $491.00, was consistent, as to the amount and denominations of the currency, with what would be carried by a distributor of illegal drugs. He also admitted that the money would be consistent “perhaps, with a number of things.”

Casandra Scott, the actual lessee of the apartment in question, testified that she only knew the defendant by sight and had not given him access to her apartment. She was absent from the apartment at the time of the search, and denied ownership of any of the seized contraband.

The defendant testified that he had been shooting dice in the front porch/hallway of the building when someone yelled “police” and the gamblers scattered. He stated that he was arrested in the hallway by police officers who came down the stairs. He said that police seized some money from him, “maybe close to three hundred dollars,” but no drugs. He denied being in apartment “D” when police entered, but said that he was brought there by police after being arrested.

Brian Coleman also testified that he and the defendant were shooting dice downstairs in the hallway when the police arrived. He said he ran upstairs, following another person into apartment “D.” He attempted to run through the bedroom and [1339]*1339climb out of the window but was caught by police. He was brought into “the front room” where he saw the defendant already handcuffed. Coleman claimed he did not see any of the drugs seized that day from the apartment.

Gerald Elwood testified that he was shooting dice that day with Brian Coleman and the defendant. He heard something about police and ran upstairs to the apartment of an acquaintance. He said that as he was trying to get away he ran into the defendant inside of the building.

Based upon this evidence the jury acquitted the defendant of the charge of possession of heroin, and found him guilty of possession with intent to distribute cocaine.

Our initial examination of the record reveals one error patent. The minute entry does not reflect that the defendant waived the required twenty-four hour delay between the trial court’s denial of his motion for new trial and his sentencing. La.C.Cr.P. art. 873. However, because the defendant did not object or raise this as an assignment of error, and no prejudice has been shown, the error is deemed harmless. La.C.Cr.P. art. 921; State v. Wormser, 467 So.2d 58 (La.App. 4th Cir.1985), writ denied, 474 So.2d 946 (La.1985).

On appeal defendant relies on four assignments of error. For reasons hereinafter given we find the assignments un-meritorious and affirm defendant’s conviction and sentence.

Assignment of Error Number One

By this assignment of error, the defendant claims that the evidence presented at trial was insufficient to support his conviction for possession with intent to distribute cocaine.

When assessing the sufficiency of the evidence to support a conviction, the appellate court must determine whether, viewing the record evidence as a whole, in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).

In addition, when circumstantial evidence partly forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La.R.S. 15:438. However, La.R.S. 15:438 does not set forth a separate test from Jackson v. Virginia, supra; it simply provides an evidentiary guideline to facilitate appellate review of whether any rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson v. Virginia, supra, reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 1336, 1990 La. App. LEXIS 574, 1990 WL 27014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sterling-lactapp-1990.