State v. Watson

993 So. 2d 779, 2008 WL 3851699
Louisiana Court of Appeal·Decided August 19, 2008·No. 08-KA-214·Published·Cited by 24 cases

Opinion

993 So.2d 779 (2008)

STATE of Louisiana
v.
Glenn WATSON.

No. 08-KA-214.

Court of Appeal of Louisiana, Fifth Circuit.

August 19, 2008.

*781 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges FREDERICKA HOMBERG WICKER, GREG G. GUIDRY, and ROBERT L. LOBRANO, Pro Tempore.

FREDERICKA HOMBERG WICKER, Judge.

In this criminal proceeding, defendant Glenn Watson appeals his convictions and sentences for felon in possession of a firearm and possession of cocaine, violations of La.R.S. 14:95.1 and La.R.S. 40:967(C), respectively. Mr. Watson assigns the following errors: (1) It was error to deny the motion to quash in view of the unreasonable delay in arraigning appellant and bringing him to trial; (2) The evidence was insufficient to support the verdict beyond a reasonable doubt. He also requests an error patent review. For the following reasons, we affirm.

PROCEDURAL HISTORY:

On October 20, 2005 the Jefferson Parish District Attorney charged Glenn Watson with one count of being a felon in possession of a firearm, a violation of La. R.S. 14:95.1, and one count of possession of cocaine, a violation of La.R.S. 40:967(C).[1] On March 1, 2006, Mr. Watson filed the following pro se motions: (1) Motion for speedy trial; (2) motion to quash the bill of information based on delay in arraignment; and (3) motion to suppress evidence. A few months after, on May 18, 2006, the trial judge denied the motion to quash and referred the remaining motions *782 to another date when newly appointed counsel would be present. On this date, defendant was also arraigned and pled not guilty.

On June 14, 2006, defense counsel filed, among other things, pretrial motions to suppress evidence, confession, and identification. The court heard and denied prior to trial the motion to suppress evidence and a motion for preliminary examination. The motion for speedy trial was never heard. On October 31, 2006, before trial, the trial judge asked if the motion to suppress was the only outstanding motion. He stated he wanted the record to be clear as to what was pending. Defense counsel asked the court to also consider the outstanding motion for a preliminary examination. Defense counsel did not ask the trial judge to consider and rule on the motion for speedy trial. Therefore, this motion was waived.

Later, on August 30, 2006, the State amended the bill of information dismissing the cocaine charge and changing the La.R.S. 14:95.1 charge to a charge of illegal carrying of a firearm while in possession of a controlled dangerous substance under La.R.S. 14:95(E). Subsequently, on October 31, 2006, the state again amended the bill of information, this time reinstating the previous charges of one count of being a felon in possession of a firearm under La.R.S. 14:95.1, and one count of possession of cocaine under La. R.S. 40:967(C). On that same day, defendant, who had waived his right to jury trial, was tried by the judge and found guilty as charged.[2]

Soon thereafter, on November 7, 2006, Mr. Watson filed a motion to arrest judgment or alternatively a motion for new trial challenging the sufficiency of the evidence. On November 8, 2006, the trial judge denied these motions and, finding that defendant had waived sentencing delays, proceeded with sentencing. Defendant was sentenced to 12 years at hard labor without benefit of probation, parole, or suspension of sentence and to pay a fine of $2,000, as to the firearm count, and to four years at hard labor, as to the cocaine count, to be served concurrently.

On June 27, 2007, Glenn Watson filed a motion for out of time appeal, which was granted on July 6, 2007. Because this motion was filed more than 30 days beyond the time period for filing an appeal under La.C.Cr.P. art. 914, the proper procedure for reinstatement of appeal rights would have been to file an application for post-conviction relief. State v. Counterman, 475 So.2d 336 (La.1985). However, since the state did not object to any procedural irregularities in the ordering of the out-of-time appeal, and the trial court granted the appeal appointing the Louisiana Appellate Project, a dismissal of this appeal to allow the defendant to properly seek reinstatement of appeal rights under Counterman, would only prolong the delay without serving any useful purpose. State v. S.J.I., 06-2649 (La.6/22/07), 959 So.2d 483. Therefore, this appeal is properly before this court. State v. S.J.I., supra.

FACTS

The evidence and testimony at trial revealed the following:

*783 On July 19, 2005, Gretna Police Department officers Bill Johnson and Wayne Williams were conducting surveillance on the Oasis Motel with regard to narcotics trafficking. Johnson observed Mr. Watson, the defendant, leave his motel room and drive to the Westbank Expressway. Johnson followed in his unmarked police vehicle and stopped Mr. Watson for failure to wear a seatbelt. Mr. Watson did not stop his vehicle immediately, but Johnson did not see Watson attempt to conceal anything in the vehicle prior to the stop. During the stop, Mr. Watson revealed to Officer Johnson that Mr. Watson's girlfriend owned the vehicle. Johnson also learned that there was an outstanding attachment for Watson. Johnson had Watson, who was alone in the vehicle, exit the vehicle, and placed him under arrest. Mr. Watson was then searched incidental to arrest, and Johnson located a clear plastic bag containing several off-white rocks in Watson's left shoe. Johnson also searched the vehicle incidental to the arrest, and found a firearm and Mr. Watson's photographic identification together in the center console.

The State introduced a chain of custody report on the clear plastic bag and its contents, as well as Charles Krone's testimony. Mr. Krone is an expert forensic scientist. Mr. Krone testified that the off-white rocks found in Mr. Watson's shoe tested positive for the presence of cocaine.

The State then presented the testimony of Luis Munguia, JPSO latent fingerprint supervisor and an expert in fingerprint analysis. Munguia identified Mr. Watson in the courtroom and explained that he had taken Mr. Watson's fingerprints on the day of trial. The State introduced those fingerprints into evidence. The State also introduced into evidence defendant's fingerprints taken at the time of Mr. Watson's prior conviction. Munguia testified that the two sets of fingerprints belonged to the same person. The State then introduced a certified copy of Mr. Watson's prior conviction for armed robbery on August 26, 1997.

DISCUSSION

Sufficiency of Evidence:

Mr. Watson argues that the evidence was insufficient for a rational trier of fact to find him guilty beyond a reasonable doubt. In particular, he contends that the arresting officer's testimony was not credible, rendering the verdict irrational as to his conviction for felon in possession of a firearm. The State responds that the trial court's credibility determinations were rational and therefore not subject to challenge on appeal.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1

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