CHUTZ, J.
Defendant, Kendrick Taylor, was charged by amended bill of information with possession of a schedule II controlled dangerous substance (cocaine) between 28 and 200 grams, a violation of La. R.S. 40:967(F)(1)(a).
On July 15, 2013, Franklinton Police Sergeant William Manning received a dispatch concerning a possible methamphetamine lab located in room 121 of the Liberty Inn Motel on Washington Street. Upon arrival, Sergeant Manning spoke to hotel employee, Christy Mitchell, who had contacted the police. With the clerk's assistance, Sergeant Manning entered the motel room but did not find any materials related to the production of methamphetamine. He did observe in plain view numerous items that he believed were being used to make powdered cocaine into crack cocaine. Having alleviated his concern about the possible methamphetamine lab, Sergeant Manning left the room, returned to his unit, relocated to a nearby parking lot, and began surveillance.
Sergeant Manning and another officer, Captain Randall Penton, maintained surveillance until a maroon vehicle pulled into a parking spot in front of the room, and a black male exited the vehicle and entered the room. As Sergeant Manning and Captain Penton approached the room to make contact with the subject, he exited the room. Upon observing Sergeant Manning's police cruiser, the subject began to walk away hastily. When Sergeant Manning directed him to stop, the subject ran.
Sergeant Manning and Captain Penton gave chase, following the subject into a wooded area and creek bed behind the motel. As he tracked the subject by following fresh footprints and churned water, Sergeant Manning heard a phone ringing and located a cell phone under a pile of debris. Next to the cell phone was a large compressed package of what appeared to be powder cocaine, as well as some individually wrapped crack cocaine rocks. Eventually, the subject, who was identified at trial as defendant, was apprehended in the woods by Captain Penton.
Franklinton Police Sergeant James Folks conducted a search of the motel room after securing a search warrant. During the search, additional narcotics and paraphernalia were recovered. Subsequent chemical testing indicated that the police had seized 196.57 grams of cocaine from the wooded area and motel room.
In his second assignment of error, defendant contends the evidence presented at trial was insufficient to support his conviction for attempted possession of cocaine between 28 and 200 grams.
A conviction based on insufficient evidence cannot stand, as it violates due process.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime.
As applicable here, it is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II, which includes cocaine.
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). An attempt is a separate but lesser grade of the intended crime. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27(C).
A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. One need not physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. A person not in physical possession of the drug is considered to be in constructive possession of a drug when the drug is under that person's dominion and control. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) his knowledge that illegal drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) his physical proximity to the drugs; and (6) any evidence that the particular area was frequented by drug users.
Defendant does not dispute the amount of cocaine seized or that the substance seized was actually cocaine. Instead, he argues that there is a lack of evidence demonstrating either his actual or constructive possession of cocaine. Further, he contends that there is minimal evidence to tie him to the motel room. The facts related to these arguments ultimately intersect, so we address them together.
Defendant did not testify at trial. Christy Mitchell, a motel employee, testified at trial that room 121 was registered to defendant beginning on July 13, 2013 — two days prior to the incident. There was not an official receipt or registration card for defendant's room on the date of the incident. Ms. Mitchell explained, however, that the motel's owners have trouble writing and speaking English, so their practice is to allow other employees, including her, to catalog rentals, and she had been too busy to fill out the card on the day of the incident. She testified further that between the time defendant registered for the room on July 13 and the time of the incident, no one else registered for that room.
Additionally, Ms. Mitchell was unequivocal in her identification of defendant as the individual who exited the maroon vehicle and entered room 121 on the day of the incident. When Sergeant Manning investigated the registration information for the maroon vehicle, he discovered that it was owned by Alan Taylor, one of defendant's family members. This vehicle was parked directly in front of room 121. Based on these facts, the jury could have reasonably concluded that defendant had rented — and was still renting and occupying — room 121 at the time of the incident.
Defendant was not found to be in actual possession of any drugs or drug paraphernalia. Upon his arrest, defendant was carrying only cash. Therefore, we must determine whether the state adequately proved defendant's actual and/or constructive possession of the cocaine at some time prior to his arrest.
First, the state sufficiently proved defendant's possession of the drugs found by Sergeant Manning during his pursuit. Sergeant Manning testified that although he had lost sight of defendant, he was aware of the direction of defendant's flight because of fresh footprints and churned water in the creek bed. During this pursuit, Sergeant Manning located a cell phone and drugs located in close proximity to each other. After defendant had been taken into custody, the cell phone Sergeant Manning recovered from the creek bed began to ring. When he asked defendant if he needed to answer it, defendant replied that it was a family member calling, and he was not worried about it. Based on the direction of defendant's flight, Sergeant Manning's ability to track defendant's path, and defendant's implicit admission to owning the cell phone discovered in the same stash as a quantity of drugs, the jury could have reasonably concluded that defendant had possessed the cocaine before its abandonment.
The state also sufficiently proved defendant's constructive possession of the drugs seized from room 121. As discussed above, the jury could have rationally concluded that defendant was still renting the room on the day of the incident. His was the last registration card filled out for room 121, a car registered to one of his family members was parked directly outside the room, and Ms. Mitchell unequivocally identified him as the person she witnessed enter into and exit from room 121. Sergeant Manning and Captain Penton maintained constant surveillance on the room following Sergeant Manning's brief entry, and no other individuals ever entered room 121. Therefore, the jury reasonably could have concluded that defendant constructively possessed the cocaine in the motel room.
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In this case, there was no objection to the instruction on the responsive verdict of attempted possession of cocaine between 28 and 200 grams. The jury's ultimate reasoning for returning this responsive verdict is not clear in the record, but it is possible that this verdict represented a "compromise." Regardless of the jury's ultimate reasoning, the evidence presented at trial was sufficient to convict defendant of the charged offense, so it was also sufficient to support defendant's conviction for the responsive offense of attempted possession of cocaine between 28 and 200 grams.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the factfinder.
This assignment of error is without merit.
In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress the evidence seized from the motel room. He alleges that Sergeant Manning's warrantless entry of the motel room was unlawful, and his observations could not serve as a basis for the probable cause used to ultimately secure a search warrant.
Trial courts are vested with great discretion when ruling on a motion to suppress.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the state to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant.
A police officer needs both probable cause to search and exigent circumstances to justify a non-consensual, warrantless intrusion into private premises.
Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.
Sergeant Manning testified at the suppression hearing and at trial
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When the Ms. Mitchell informed Sergeant Manning that she had observed a possible methamphetamine lab in room 121, Sergeant Manning's training and experience led him to believe this information was credible. Reports by citizen informants based on first hand knowledge, who are willing to be identified, carry a high indicia of credibility and reliability in the determination of probable cause.
This assignment of error is without merit.
In his third assignment of error, defendant argues that the trial court erred in failing to suppress Ms. Mitchell's single-photo identification of defendant. He contends this single-photo procedure was unduly suggestive and resulted in a substantial likelihood of misidentification.
An identification procedure is unduly suggestive if it displays the defendant so that the witness's attention is focused on the defendant.
Thus, a defendant attempting to suppress an identification must prove the identification was suggestive and that there was a substantial likelihood of misidentification by the eyewitness. Even should the identification be considered suggestive, that alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure.
If the identification procedure is determined to be suggestive, courts look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification. These factors include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.
Following his pursuit of defendant and recovery of the discarded evidence, but prior to defendant's apprehension, Sergeant Manning returned to the motel and spoke with Ms. Mitchell. She advised Sergeant Manning that the individual who had fled was the person who had been staying in room 121. After obtaining defendant's name from the registration card, Sergeant Manning printed defendant's driver's license photo from the NCIC database. Ms. Mitchell identified the person in the photo as the individual who was staying in room 121 and who had fled from the police. She was shown the photo individually and not as part of a photo lineup. Ms. Mitchell's identification took place approximately thirty minutes after she witnessed defendant enter room 121, exit from it, and then flee.
Considering the totality of the circumstances, the trial court did not err or abuse its discretion in denying defendant's motion to suppress the single-photo identification. Ms. Mitchell had ample opportunity to view defendant as he returned to the motel, and she testified at trial that when defendant exited room 121, he began to walk directly toward her. Ms. Mitchell's degree of attention was heightened at this point because she knew what was going on and was terrified that something bad would happen. She was unequivocal in her identification of defendant both on the day of the incident and at trial. Lastly, the time between Ms. Mitchell's observation of defendant and her identification of him was a relatively short thirty minutes. Therefore, even if the single-photo identification procedure might have been somewhat suggestive, there was not a substantial likelihood of misidentification.
This assignment of error is without merit.
In his fourth assignment of error, defendant argues that the trial court erred in allowing the state to introduce testimony that defendant implicitly admitted to owning a cell phone found near an abandoned stash of cocaine. He contends that this inculpatory statement was not freely and voluntarily given or proven to be made following the issuance of a
We note first that defendant's assignment of error combines the issue of the free and voluntary nature of his statement (and the attendant
In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. Code Crim. P. art. 841(A). A new basis for an objection may not be raised for the first time on appeal. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection.
At trial, defendant raised a hearsay objection to Sergeant Manning's description of defendant's statement. As described above, Sergeant Manning testified that he recovered a cell phone and a stash of cocaine near the creek where defendant fled. After defendant was taken into custody, the cell phone rang, and Sergeant Manning asked defendant whether he needed to answer it. According to Sergeant Manning, defendant implicitly admitted to owning the cell phone by stating in response that the person calling was a family member and he "wasn't worried about it." Defense counsel objected that this statement was hearsay, but the trial court overruled the objection.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C). A declarant is unavailable as a witness when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court, including a situation in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.
Defendant qualifies as an unavailable declarant because of his privilege not to testify at trial. Further, his statement regarding the identity of the caller as a family member — thereby implicitly admitting ownership of the cell phone recovered near the abandoned contraband — was one that tended to subject him to criminal liability. Therefore, the trial court properly denied defense counsel's objection to the statement, as it constituted an exception to the hearsay rule under La. Code Evid. art. 804(B)(3).
This assignment of error is without merit.
In his fifth assignment of error, defendant complains that the non-unanimous jury verdict in this case rendered his conviction unconstitutional.
Louisiana Constitution Article I, § 17 (and by extension La. Code Crim. P. art. 782, which is essentially the codification of the constitutional provision) allows for non-unanimous jury verdicts by at least 10 of 12 votes in non-capital cases, where the punishment is necessarily confinement at hard labor. Defendant was charged with possession of cocaine between 28 and 200 grams, a non-capital crime necessarily punishable by confinement at hard labor.
It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. In order to do so, a party must raise the issue of unconstitutionality in the trial court, the alleged unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized.
Nevertheless, we address this oft-repeated issue to reiterate this court's position that this argument regarding non-unanimous verdicts is untenable. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment.
Defendant suggests that since subsequent legal developments call
Even though
This assignment of error is without merit.
In his final assignment of error, defendant contends that the transfer of his case from one judge to another violated the random allotment process.
The record indicates that defendant was arraigned by Judge Reginald T. Badeaux, III on October 10, 2013. According to the court minutes, Judge Badeaux presided over the pretrial proceedings until December 8, 2014, when Judge Martin E. Coady began to preside over the case. Judge Coady handled all of the subsequent proceedings, including the suppression hearing, trial, initial sentencing, and habitual offender adjudication and resentencing. Nothing in the record indicates the reason for the transfer.
Defendant alleges for the first time on appeal that the transferal of his case from Judge Badeaux to Judge Coady violated the district court's random allotment procedure. However, defendant does not appear to have objected to the transfer in the district court, and appellate counsel admits that he does not know why the case was transferred. Because defendant failed to contemporaneously object to this transfer, this issue is not properly before us on appeal.
For errors not assigned, we are limited in our review under La. Code Crim. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.
Having been adjudicated a second-felony habitual offender, defendant was sentenced to twenty-two years at hard labor, without benefit of parole, probation, or suspension of sentence. For the reasons detailed below, this sentence unlawfully restricts the benefit of parole and must be vacated.
Defendant was convicted of attempted possession of cocaine between 28 and 200 grams. Had defendant been convicted of the completed offense of possession of cocaine between 28 and 200 grams, the applicable penalty provision would have called for imprisonment at hard labor for not less than five years, nor more than thirty years, and payment of a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.
Defendant's conviction was not for a completed offense, but for an attempt to possess between 28 and 200 grams of cocaine. Louisiana Revised Statutes 40:979(A) provides that a person convicted of this offense shall be fined or imprisoned in the same manner as for the offense attempted, with such fine or imprisonment not to exceed one-half of the longest term of imprisonment prescribed for the offense so attempted.
Having been adjudicated a second-felony habitual offender, defendant was subject to an enhanced sentence of imprisonment for not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.
The proper sentence for defendant (considering his underlying conviction and his status as a second-felony habitual offender) is a term of imprisonment at hard labor for a minimum of seven-and-one-half years to a maximum of thirty years. This entire sentence shall be served without benefit of probation and suspension of sentence, but the sentence may not restrict the benefit of parole. Defendant's instant sentence, which restricts parole for its entire twenty-two year duration, is illegal.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A). In the instant case, however, correction of the illegal sentence requires the exercise of discretion. Had the trial court realized that it could not restrict the benefit of parole on defendant's sentence, it might have sentenced defendant to a longer overall term of imprisonment. Accordingly, under
GUIDRY, J., concurring in the result.
I respectfully disagree with the determination that the trial court did not err or abuse its discretion in denying defense counsel's motion to suppress the evidence seized from the motel room. At the suppression hearing and at the trial, Sergeant Manning stated that dispatch relayed to him that an employee from Liberty Inn Motel contacted the police, claiming that one of the rooms contained what she believed to be some type of drug lab, possibly a meth lab. Sergeant Manning stated that in order to secure public safety, due to the volatile nature of a meth lab, he entered the room to check on the conditions based on the complaint. However, there is no evidence in the record indicating what exactly the motel employee, who was unknown to police, observed in the room that led her to believe that it was being used as a meth lab. Accordingly, while probable cause can be based on knowledge supplied to an officer by another person, there is no evidence presented indicating any facts relating to the motel employee's basis of knowledge.
Furthermore, there is no evidence indicating that Sergeant Manning independently observed any conditions upon his arrival at the scene, i.e., odor, that would give him probable cause or exigent circumstances to enter the motel room. Therefore, because Sergeant Manning did not have probable cause or exigent circumstances to justify a non-consensual, warrantless intrusion into the private premises, the search was illegal and any evidence obtained pursuant to the search warrant, which was obtained based on evidence observed in plain view in the room during the illegal search, should have been suppressed.
However, because I find that the evidence recovered by Sergeant Manning during his pursuit of the defendant in the woods, which the defendant did not seek to suppress, is sufficient to support the defendant's conviction and sentence of attempted possession of cocaine between 28 and 200 grams, I respectfully concur in the result reached in this matter.
