State v. Young

764 So. 2d 998, 2000 WL 340894
Louisiana Court of Appeal·Decided March 31, 2000·No. 99 KA 1264·Published·Cited by 25 cases

Opinion

764 So.2d 998 (2000)

STATE of Louisiana
v.
Russell D. YOUNG.

No. 99 KA 1264.

Court of Appeal of Louisiana, First Circuit.

March 31, 2000.

*1000 Dorothy A. Pendergast, Metairie, for State of Louisiana.

Peter R. Borstell, New Orleans, for Defendant-Appellant.

Before: SHORTESS, C.J., PARRO and KUHN, JJ.

SHORTESS, C.J.

Russell Young (defendant) was charged by bill of information with possession with the intent to distribute cocaine. La. R.S. 40:967(A)(1). He pled not guilty. After a trial, the jury returned the verdict of guilty as charged. Defendant filed motions for new trial and for post-verdict judgment of acquittal, which were denied by the trial court. The State filed a habitual-offender bill of information and after a hearing, the court adjudicated defendant as a second-felony habitual offender. The court then sentenced defendant to 40 years at hard labor. At the time of sentencing, defense counsel also noted the excessiveness of the sentence and later filed a written motion to reconsider sentence. The trial court denied the motion to reconsider. Defendant has appealed.

FACTS

St. Tammany Parish Sheriff's Office Corporal Kenny Krieger was assigned to patrol the area of Loman and Shady Pine Roads in Lacombe. Krieger had received complaints from residents in that area that there was a "lot of narcotic traffic going on in ... the vicinity." On November 12, 1996, Krieger drove his marked police unit down Loman Road to see who was in the area. He then drove to another area where he summoned Huey Davis and Chris Abney, detectives on the Narcotics Task Force. They decided to conduct a drag operation, in which the officers would go to the area in unmarked vehicles and *1001 approach suspects in the hope that they would abandon illegal drugs.

This operation was conducted at a residence on Loman Road. Krieger arrived in his marked police unit a few minutes after Davis and Abney had exited their vehicles and talked with the suspects. When Krieger drove up, he observed three or four persons standing close to a fire. Abney was near the fire, and Davis was walking toward the fire with a person Krieger recognized as defendant. Davis then walked to an area about 20 feet away and picked up an object; the detective appeared to know where the object was located. After Davis approached him, Krieger saw the item was a white rock-like substance, which appeared to be a "big chunk" of cocaine. Defendant was placed under arrest, was advised of his rights, and was searched. Davis found four separate bundles of cash, of which three contained $100 and the fourth contained $70.

Krieger testified he was familiar with Lacombe and knew the area of Shady Pine and Loman Roads was a high drug-trafficking area; he had made several narcotics arrests in the area. On cross-examination, Krieger admitted that besides defendant's father's residence, there was only one other house on Loman Road. He admitted that when he made his first trip that night into the area, he looked at these two residences from Shady Pine Road and did not exit his vehicle to observe the men by the fire. He did not see the initial contact between the task-force detectives and the men standing around the fire.

Krieger did not see Davis search the yard before he found the suspected crack cocaine; rather, Davis walked directly to one location and picked up the object. The men at the scene were searched, but no other drugs were found. Krieger was aware that the owner of the house was Ernest Young, defendant's father (Mr. Young); he had never had any problems with Mr. Young, and the arrests he had previously made occurred closer to Shady Pine Road, not in front of the Young residence.

Krieger further testified he contacted the task force because he knew it was easier for an unmarked unit to drive into the area without being noticed. He admitted he did not see defendant attempt to run when the officers drove up to the area. As to the lighting conditions, he admitted there was only one street light, which was about 30 to 40 yards away on the corner of Shady Pine and Loman. There was no other light except that from the fire and the headlights of the police vehicles.

Davis testified he was familiar with the area and had worked investigations in the area. After speaking with Krieger regarding drug sales on Loman Road, Davis and Abney, who were dressed in blue jeans or fatigue pants with a black T-shirt containing an emblem of the Sheriff's Office Narcotics Task Force, drove an unmarked vehicle to the house. They were attempting to conduct a "drag operation" in which officers in marked vehicles follow their unmarked units. Davis explained the objective was for officers in unmarked vehicles to arrive first, talk with the suspects and observe their behavior, such as abandoning illegal drugs.

When Davis and Abney exited their vehicle, they became visible as police officers because of their shirts. Davis testified he saw defendant walk away from the fire; Davis followed defendant with his flashlight. He explained that from his experience with narcotics dealings, people will frequently try to discretely leave the scene. Because he saw defendant did not walk directly to the house, the officer believed defendant might be attempting to run toward a wooded area. He observed defendant walk around a car, and as defendant passed a small trash pile, he dropped a small white object about the size of a quarter from his hand. Davis advised defendant to stop, and he escorted him back to the area of the fire and near Abney. Then Davis returned to the area where he saw defendant drop the object *1002 and within seconds found an "eight ball," the street name for an eighth of an ounce of cocaine. Because the crack cocaine was white and was among the black charcoal and ash in the area, it was easy to see the object. Davis further testified the street value of an eight ball is $250 to $300.

According to Davis, from the time he exited his vehicle, his attention was focused on the hands of the suspects; he explained he was trained to know a suspect will use his hands if he attempts to dispose of evidence or hurt the officer. He further testified the scene was controlled and that by using his peripheral vision he did not lose track of the area where the suspected narcotics were thrown. He did not see any other persons approach the area where defendant dropped the object.

Davis further testified that during the search of defendant, he found $370 in cash, folded in several "doper rolls," which are bundles of folded rolls of small-denomination currency totaling $100. He also seized a beeper. No other individuals were arrested at the scene. Davis also stated defendant described his occupation as a cement worker and did not mention he sold firewood.

On cross-examination, Davis stated that after he and his partner were contacted, they decided to go into the area and find anything they could to make an arrest. He explained he was not planning on making a drug purchase because the suspects would usually recognize him as a narcotics agent.

He acknowledged the only street light was located at the curb of Loman and Shady Pine about 50 yards away from the men. When Davis drove up he was about 10 to 15 feet away from the fire. With his vehicle's headlights illuminating the area underneath a tree, Davis saw defendant leave the fire and walk away. Defendant was about 30 to 40 feet away from the house when Davis shined his flashlight in the same direction. He could see ahead of where defendant was walking. He told defendant to stop, but defendant

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State v. Young, 764 So. 2d 998, 2000 WL 340894 (La. Ct. App. 2000).

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