State v. Thompson

665 So. 2d 686, 1995 WL 713798
CourtLouisiana Court of Appeal
DecidedDecember 6, 1995
Docket27543-KA
StatusPublished
Cited by10 cases

This text of 665 So. 2d 686 (State v. Thompson) 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. Thompson, 665 So. 2d 686, 1995 WL 713798 (La. Ct. App. 1995).

Opinion

665 So.2d 686 (1995)

STATE of Louisiana, Appellee,
v.
Kenny THOMPSON, Appellant.

No. 27543-KA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1995.

*688 John William Focke, II, Monroe, for appellant.

Richard Ieyoub, Attorney General, Baton Rouge, William R. Coenen, Jr., District Attorney, Rayville, Johnny R. Boothe, Assistant District Attorney, Winnsboro, for appellee.

*689 Before SEXTON and WILLIAMS, JJ., and SAVOIE, J. Pro Tem.

SEXTON, Judge.

Defendant, Kenny Thompson, was convicted of one count of distribution of cocaine, a violation of LSA-R.S. 40:967(A), and was sentenced to six years imprisonment at hard labor. He now brings this appeal, urging two assignments of error. We affirm.

FACTS

On April 8, 1994, two Beauregard Parish undercover narcotics agents and a confidential informant ("CI") went to the "Water Hole" lounge in Franklin Parish to set up a drug purchase. When the three arrived at the lounge, the CI recognized one of the men standing in the parking lot and called out, "Hey, Mel!" Mel, a.k.a. Kenny Thompson, the defendant, approached the agents and asked them what they wanted. The agents told him they were looking for "sixty dollars worth," meaning an amount of crack cocaine worth $60. The defendant walked back into the crowd on the parking lot. He handed something to one of the other men. That man then brought three "rocks" of a substance, which later proved to be crack cocaine, to the agents' car. The delivery man then took $60 from the agents and gave it to the defendant.

The agents later transferred the drugs to local officers and told the officers they had purchased the drugs from someone named "Mel." The local officers knew Mel to be Kenny Thompson, and the undercover agents identified the defendant from a police photo of Thompson. Local officers subsequently arrested the defendant.

DISCUSSION

Assignment of Error 1:

The Evidence Does Not Sustain the Verdict

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of 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. State v. Bellamy, 599 So.2d 326 (La.App.2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

LSA-R.S. 40:967(A) provides in pertinent part:

Except as [otherwise] authorized ... it shall be unlawful for any person knowingly or intentionally:
(1) To ... distribute or dispense ... a controlled dangerous substance classified in Schedule II.

The lab report admitted into evidence shows that the substance the undercover agents received contained cocaine, a Schedule II CDS. The defendant's use of a "runner" to deliver the drugs does not reduce his culpability as a distributor.

Defendant makes two arguments in support of his assignment of error:

1. The undercover agents misidentified the defendant as the person who sold them crack cocaine;
2. The undercover agents fabricated their stories to "keep getting paid."

Regarding the first argument, each agent was able to positively identify the defendant as "Mel," the person who gave the crack to the runner who delivered it to the agents' car. One agent, Deputy Pichon, had seen the defendant prior to the night in question.

Although the defendant testified in his own behalf and denied any participation in this crime, the jury chose to believe the two undercover agents. It is well-settled that it is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App.2d Cir.1992), writ denied, 617 So.2d 905 (La.1993). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App.2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). Clearly, the jury chose to credit the consistent testimony of the two undercover agents over that of the defendant; the record discloses no evidence which would warrant reversal of their decision.

*690 The testimony of a single undercover police officer is sufficient to convict one charged with distribution of drugs. State v. Daniels, 607 So.2d 620 (La.App.2d Cir.1992). In this case, the agents' testimony established that defendant's conduct satisfied every element of the crime charged and that defendant was, in fact, the perpetrator of the crime.

Regarding defendant's second argument, it was shown at trial that the undercover agents received payment for their work as undercover officers. Larry Crum, the officer who set up the undercover program, testified that the agents' pay was not linked to the number of cases they developed. However, he conceded that undercover operations would not continue if the agents were unable to make some cases. Defense counsel examined the agents about their compensation, and the agents confirmed the testimony of Officer Crum. The jury chose to accept the agents' testimony, and there is no showing that their choice was in error.

Because the evidence is sufficient to support the conviction, this assignment of error is without merit.

Assignment of Error No. 2:

Ineffective Assistance of Counsel

Defendant complains that his court-appointed trial counsel provided him with ineffective assistance of counsel during the trial. This issue is more properly raised by application for post-conviction relief in the trial court, however, where a full evidentiary hearing may be conducted if warranted. State v. Deloch, 380 So.2d 67 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979). However, an ineffective assistance of counsel claim may be addressed on direct review if the record discloses evidence needed to decide the issue. State v. Ratcliff, 416 So.2d 528 (La.1982) (record was sufficient since ineffective assistance claim was explored in detail during a hearing on a motion for new trial).

With respect to the ineffective assistance of counsel claim, defendant specifically complains that:

(1) His counsel failed to investigate the case;
(2) His counsel failed to make pre-trial motions;
(3) There is no acknowledgement in the record that counsel met with the defendant or reviewed the case before trial;
(4) His counsel failed to discover the identity of the confidential informant;
(5) His counsel failed to quash the "photo lineup" used to identify the defendant;
(6) His counsel failed to call Michael Rubin, Thompson's co-defendant, to testify; and,
(7) His counsel failed to make proper evidentiary objections.

From our review of the record, we determine that the record contains sufficient information to decide the photo line-up and evidentiary issues. The record is not sufficient, however, to fairly decide whether counsel's pre-trial advocacy was adequate, or why counsel did not attempt to discover the identity of the confidential informant, or call him or the co-defendant to testify. Because there has been no evidentiary hearing on these matters, there is simply nothing in the record for this court to review. See, e.g., State v. Lockhart,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mendenhall
948 So. 2d 1255 (Louisiana Court of Appeal, 2007)
State v. Howard
888 So. 2d 375 (Louisiana Court of Appeal, 2004)
State of Louisiana v. Jim Howard, Jr.
Louisiana Court of Appeal, 2004
State v. Daniels
740 So. 2d 691 (Louisiana Court of Appeal, 1999)
State v. Henderson
721 So. 2d 85 (Louisiana Court of Appeal, 1998)
State v. Matthews
720 So. 2d 153 (Louisiana Court of Appeal, 1998)
State v. Branch
714 So. 2d 1277 (Louisiana Court of Appeal, 1998)
State v. Boykin
688 So. 2d 1250 (Louisiana Court of Appeal, 1997)
State v. Barnes
685 So. 2d 1148 (Louisiana Court of Appeal, 1996)
State v. Harris
679 So. 2d 549 (Louisiana Court of Appeal, 1996)
State v. Baker
674 So. 2d 1108 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 686, 1995 WL 713798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-lactapp-1995.