The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
04-499 consolidated with 04-500
STATE OF LOUISIANA
VERSUS
JIM HOWARD, JR.
**********
APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NUMBER 67,007
HONORABLE JOHN PHILIP MAUFFRAY, JR., DISTRICT JUDGE
**********
BILLIE COLOMBARO WOODARD
JUDGE
**********
Court composed of Chief Judge Ulysses G. Thibodeaux, Billie Colombaro Woodard,
and Oswald A. Decuir, Judges.
CONVICTION AND SENTENCE AFFIRMED.
Walter E. Dorroh, Jr., Assistant District Attorney
David W. Burton, District Attorney
28 th Judicial District
Post Office Box 1940
Jena, Louisiana 71342
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana
Christopher A. Aberle
Louisiana Appellate Project
Post Office Box 8583
Mandeville, Louisiana 70470
(985) 871-4084
COUNSEL FOR DEFENDANT/APPELLANT
Jim Howard, Jr.
WOODARD, Judge.
Defendant, Jim Howard, Jr., appeals his conviction and sentence for conspiracy
to distribute a controlled dangerous substance. For the following reasons, we affirm
his conviction and his sentence.
*****
On January 11, 2001, Carla Whitstine, a detective with LaSalle Parish Sheriff’s
Office; Karlyon Holston, a deputy with Rapides Parish Sheriff’s Office; Sharon
Smith, a confidential informant; and two undercover agents, working with the Metro
Narcotics Task Force were cruising in their vehicle looking to set up a drug purchase.
At approximately seven o’clock in the evening, they encountered the Defendant, Mr.
James Howard, Jr., standing in front of a red van in a convenience store parking lot.
Smith got out of the vehicle and approached him. When she returned to the vehicle,
she told the agents that he wanted to know what they wanted. She testified that she
went back and told him that her friends wanted two rocks of crack cocaine.
A few minutes later, Earnest “Kicker” Jones walked up to the vehicle and said
that Howard wanted to know what they wanted. The agents told Jones they wanted
two rocks of crack cocaine. After a brief period, Jones returned and told the agents
to follow Howard in their vehicle because he did not want to do business in front of
the store. All three witnesses testified that they saw Howard get into the red van.
Jones got into his vehicle, and the two vehicles followed the red van down the road.
Eventually, the undercover agents and Smith saw the red van parked next to
Jones’ vehicle, then the van left the scene. Not sure of what was happening, the
undercover agents and Smith drove past Jones’ vehicle. Shortly afterwards, Jones
signaled the agents over and gave them two rocks of crack cocaine in exchange for
forty dollars. He told them that if they wanted more drugs, to come to him, that
Howard had “hooked him up.”
Six months later, officers arrested Howard in his home. The State charged him,
with two counts of conspiracy to distribute a Schedule II controlled dangerous
substance, in violation of La.R.S. 14:26, 40:964(A)(4) and 40:967(A)(1), and two
counts of distribution of a Schedule II controlled dangerous substance, in violation of
La.R.S. 40:964(A)(4) and 40:967(A)(1).
1
On June 20, 2003, a jury, deadlocked on the other charges, found Howard guilty
of one count of conspiracy to distribute a controlled dangerous substance. On
November 5, 2003, the trial court sentenced him to fifteen years at hard labor and
ordered him to pay court costs.
On June 24, 2003, the State filed a habitual offender bill against Howard. The
trial court found him guilty, vacated the previously imposed sentence, and imposed
life imprisonment pursuant to La.R.S. 15:529.1. Alleging that the sentence was
excessive, Howard made an oral motion for reconsideration of the sentence, which the
trial court denied. He did not file a written motion.
Howard appeals his conviction of conspiracy to distribute a controlled
dangerous substance and his habitual offender sentence.
*****
E RRORS P ATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors
patent on the face of the record. In the instant case, we find none.
H EARSAY
Louisiana Code of Evidence Article 801(C) defines hearsay as “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.” Louisiana Code of
Evidence Article 802 holds that “hearsay is not admissible except as otherwise
provided by this code or other legislation.”
Howard alleges that the trial court erred when it allowed testimony of
inculpatory statements, attributed to him, because the statements were hearsay. He,
further, asserts that these statements are the only direct evidence of the alleged
conspiratorial agreement between him and Jones and that, without the statements, he
likely would not have been convicted of a conspiracy.
Detective Whitstine made two statements he objected to at trial. First, the
detective testified that after Smith had a brief conversation with Howard, she returned
to the vehicle and told the agents that Howard wanted to know what they wanted.
Both agents testified they, personally, did not hear this conversation between Smith
2
and Howard. The trial court ruled that the detective’s testimony as to what Defendant
said to Smith was admissible under La.Code Evid. art. 801(D)(4).
Article 801(D)(4) provides:
D. Statements which are not hearsay. A statement is not
hearsay if:
....
(4) Things said or done. The statements are events speaking for
themselves under the immediate pressure of the occurrence, through the
instructive, impulsive and spontaneous words and acts of the
participants, and not the words of the participants when narrating the
events, and which are necessary incidents of the criminal act, or
immediate concomitants of it, or form in conjunction with it one
continuous transaction.
In State v. Williams,1 this court stated:
The res gestae doctrine in Louisiana is broad and includes not
only spontaneous utterances and declarations made before or after the
commission of the crime, but also testimony of witnesses and police
officers pertaining to what they heard or observed before, during, or after
the commission of the crime, if the continuous chain of events is evident
under the circumstances. A defendant’s comments to police officers,
which formed an integral part of the transaction, were admissible under
the res gestae exception.
Further, in State v. Matthews 2 and State v. Thompson,3 undercover officers
testified to statements which the defendants made that they did not hear. In each case,
however, the officers had recent prior conversations with the defendants concerning
the purchases of the drugs and the defendants’ statements, as third persons had relayed
to them to the officers, linked the defendants’ actions with the previous conversations
with the officers and, as such, formed part of the res gestae of the crimes. Therefore,
1
614 So.2d 252, 254 (La.App. 3 Cir. 1993) (citations omitted).
2
98-252 (La.App. 5 Cir. 10/14/98), 720 So.2d 153.
3
27,543 (La.App. 2 Cir. 12/6/95), 665 So.2d 686.
3
the appellate courts found that the trial courts did not err when they ruled the
statements were admissible pursuant to La.Code Evid. 801(D)(4).
Likewise, we do not find error in the trial court’s decision in the instant case.
“The testimony of a police officer may encompass information provided by another
individual without constituting hearsay if offered to explain the course of the police
investigation and the steps leading to the defendant’s arrest.”4 Howard’s question to
Smith indicated that a drug purchase was possible and, as such, formed an integral
part of the transaction.
Moreover, both declarants in this case, Smith and Howard, were in court and
testified regarding the statement. At trial, Smith testified that after she and the two
agents saw Howard standing outside the convenience store, she approached him and
inquired whether he had any drugs for sale. She testified that she returned to the
agents, waiting in the vehicle and told them, “Jim wants to know what we want.”
Howard testified that when Smith asked him about drugs for sale, he told her, “You
know I don’t do that anymore.”
Finally, Howard objected only to Detective Whitsine’s testimony. He did not
object to Smith’s testimony regarding his statement, nor did he object when Deputy
Holston testified regarding the same statement. Hearsay that is not objected to
becomes substantive evidence.5 Furthermore, objections not made at the time of
occurrence are waived on appeal.6 Therefore, Howard waived his right to object to
the admissibility of this statement.7
For all the above reasons, the assignment of error concerning this statement is
without merit.
The second statement Howard objected to at trial is the statement which Kicker
Jones made, as Detective Whitstine repeated, that if the agents wanted more drugs,
to come and see him (Jones) because Howard had “hooked him up.” Kicker Jones did
not testify, but all three witnesses, Smith, Whitsine and Hoston, testified to this
statement.
4
State v. Smith, 98-1417, p. 16 (La. 6/29/01), 793 So.2d 1199, 1204.
5
State v. Dabney, 02-934 (La. 4/9/03), 842 So.2d 326.
6
See La.Code Crim.P. art. 841.
7
State v. Smith, 98-1417 (La. 6/29/01), 793 So.2d 1199.
4
At trial, Howard stated that, although he knew Kicker Jones, he did not see him
at the convenience store that evening and that although the red van parked in front of
the store was his father’s van, his brother, Dwayne, was driving it that day, and he was
in the back of the store playing pool at the time.
Howard argued that the statement Detective Whitstine had reported was
hearsay. The trial court overruled his objection, and ruled that the statement was not
only admissible under La.Code Evid. 801(D)(4) but was also admissible under
La.Code Evid. 801(D)(3)(b). Article 801(D)(3)(b) provides that a statement is not
hearsay if:
(3) Relational and privity admissions. The statement is offered
against a party, and the statement is:
(b) A statement by a declarant while participating in a conspiracy
to commit a crime or civil wrong and in furtherance of the objective of
the conspiracy, provided that a prima facie case of conspiracy is
established.
Howard further argued that the State failed to establish a prima facie showing of a
conspiracy.
In State v. Matthews,8 the second circuit held:
A prima facie case of conspiracy is presented when the state
introduces evidence which, if unrebutted, would be sufficient to establish
the facts of the conspiracy. State v. Nall, 439 So.2d 420 (La.1983). The
statements of the declarant may be considered by the trial court in
making the preliminary determination of whether there is prima facie
evidence of a conspiracy. However, the statements by themselves will
not establish a prima facie case of conspiracy. State v. Myers, 545 So.2d
981 (La.1989). The state must provide other evidence that is
independently admissible to support the prima facie case of conspiracy.
The standard for determining the admissibility of statements made
by co-conspirators is less than that required to convict a defendant of
conspiracy to commit an offense. Such statements, if admissible, only
constitute evidence which the jury may consider in reaching its
conclusion as to whether a defendant did or did not unlawfully
participate in a conspiracy to commit an offense beyond a reasonable
8
26,550 (La.App. 2 Cir. 12/21/94), 649 So.2d 1022, 1029, writ denied, 95-
0435 (La. 6/16/95), 665 So.2d 341. See also, State v. Nguyen, 02-0410 (La.App. 3
Cir. 10/2/02), 827 So.2d 1248.
5
doubt. Accordingly, a trial court’s determination as to the admissibility
of such evidence, i.e., whether the state has made a prima facie showing
of a conspiracy as to make the co-conspirators’ statements admissible or
inadmissible under LSA-C.E. Art. 801(D)(3)(b), will not be overturned
absent clear error. State v. Lobato, 603 So.2d 739 (La.1992), remanded
on other grounds.
In brief, Defendant argues:
Those statements are not admissible as coconspirators statements
because the court erred in concluding that the State had established a
prima facie case of conspiracy.
Although the court did find that a conspiracy existed, the evidence
connecting Howard and Kicker is the testimony that they may have
spoken to each other in the parking lot and that they briefly spoke again
on the road when Kicker pulled up next to him. Given that Howard and
Kicker may well have been friends who talk to each other this evidence
is thoroughly ambiguous and cannot suffice to allow the district court to
conclude that Howard and Kicker conspired with each other to provide
the undercover operatives with cocaine. In fact, under the circumstances,
the only information that indicates that Howard could have been
conspiratorial liable for Kicker’s act of selling cocaine was the offending
hearsay statement itself.
In brief, the State responds that the sequence of events was sufficient to
establish a prima facie case of conspiracy. Testimony at trial established the
following: first there was an approach by Smith to Howard and a conversation
between them ensued regarding the purchase of drugs. Jones, then, approached the
undercover agents regarding the purchase of drugs. The witnesses observed Jones
having a conversation with Howard, after which they were instructed to follow him
in their vehicle. All three witnesses observed Howard enter the van. The undercover
agents followed the red van and Jones’ vehicle to a secluded spot and observed Jones’
vehicle and the red van side-by-side. Shortly afterwards, Jones delivered the drugs.
This course of events, coupled with the statement Jones made that the
Defendant had hooked him up, were sufficient to establish a prima facie showing of
conspiracy. “The standard for determining the admissibility of statements made by co-
conspirators is less than that required to convict a defendant of conspiracy to commit
6
an offense.”9 Therefore, the trial court did not err when it allowed the statement to be
admitted into evidence pursuant to La.Code Evid. 801(D)(3)(b) and (D)(4).
Howard also complains that the statements Kicker Jones attributed to him that
he wanted to know what the agents wanted to purchase and that he did not want to do
business in the parking lot, to which all three of the State’s witnesses testified, were
hearsay and erroneously admitted.
However, under the circumstances of the present case, this court need not
resolve whether the trial court erred when it permitted the witnesses’ testimonies
regarding what Jones said the Defendant had said. The error, if any, is harmless
because Howard failed to object at trial to the statements when all three witnesses
repeated them. As previously noted, hearsay that is not objected to becomes
substantive evidence.10 Objections not made at the time of their occurrence are
waived on appeal.11 Further, if the inadmissible hearsay evidence is merely
cumulative or corroborative of other testimony adduced at trial, its admission is
considered harmless.12
Finally, Howard alleges ineffective assistance of counsel for failure to
adequately object to all the hearsay statements attributed to him.
Generally, the issue of ineffective assistance of counsel is a matter
more properly addressed in an application for post conviction relief, filed
in the trial court where a full evidentiary hearing can be conducted. Only
if the record discloses sufficient evidence to rule on the merits of the
claim do the interests of judicial economy justify consideration of the
issues on appeal.13
However, we find the record is sufficient to resolve Howard’s claim of
ineffective assistance of counsel.
9
State v. Woodard, 03-847, p.4 (La.App. 4 Cir. 4/30/03), 847 So.2d 629,
632.
10
Dabney, 842 So.2d 326.
11
La.Code Crim.P. art. 841. Smith, 793 So.2d 1199.
12
State v. McIntyre, 381 So.2d 408 (La.), cert. denied, 449 U.S. 871, 101
S.Ct. 209 (1980).
13
State v. Schexnaider, 03-144, pp. 17-18 (La.App. 3 Cir. 6/4/03), 852 So.2d
450, 462 (citations omitted).
7
In order to prevail on an ineffective assistance of counsel claim, Howard must
demonstrate both a deficient performance and prejudice as a result of the performance.
This court has explained the test for ineffective assistance of counsel:
A defendant is entitled to effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States Constitution
and Article I, § 13 of the Louisiana Constitution of 1974. This right is
fundamental to our system of justice and a cornerstone in assuring that
defendants receive a fair trial not unduly prejudiced by their counsel's
ineffective assistance. . . .The claim is assessed by the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); Id. To prevail, the defendant must not only
show that counsel's performance was deficient, but also that a reasonable
probability existed that he was prejudiced by the deficiency. Brooks, 661
So.2d 1333. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.14
As noted above, the trial court found two out-of-court statements, Detective
Whitstine made that defense counsel objected to at trial as hearsay, not to be hearsay
statements pursuant to La.Code Evid. 801(D)(4) and 801(D)(3)(b). We have already
found no error in these rulings. These two statements, along with physical evidence
and the remaining witnesses’ testimonies, established that Howard was in the business
of selling drugs and that he conspired with Kicker Jones to promote that business.
Why defense counsel chose not to object to the remaining two out-of-court statements
attributed to Howard would be speculative. However, under the facts of this case,
Howard cannot show that failure to object to the two remaining statements most likely
resulted in a conviction. Moreover, “‘[e]ffective counsel’ has been defined to mean
‘not errorless counsel,’ and not counsel judged ineffective by hindsight, but counsel
likely to render reasonably effective assistance.” 15
Therefore, for all the above reasons, this assignment of error is without merit.
E XCESSIVE S ENTENCE
14
State v. Antoine, 00-564, p. 6 (La.App. 3 Cir. 12/6/00), 774 So.2d 353,
357.
15
Id.
8
Howard alleges his mandatory life sentence at hard labor is excessive under the
circumstances of his case. He was sentenced on November 5, 2003, pursuant to
La.R.S. 15:529.1(A)(2)(b)(ii), which, at the time of the underlying offense, in
pertinent part, provided:
If the third felony or the two prior felonies are felonies defined as
a crime of violence under R.S. 14:2(13) or as a violation of the Uniform
Controlled Dangerous Substances Law punishable by imprisonment for
more than five, or any other crimes punishable by imprisonment for
more than twelve years, the person shall be imprisoned for the remainder
of his natural life, without benefit of parole, probation, or suspension of
sentence.
In addition to the current conviction, the State proved that Howard was also
convicted of aggravated battery, a designated crime of violence, in July 1992 and
possession of cocaine with intent to distribute, punishable by more than five years
imprisonment, in June 1993. The underlying offense, conspiracy to distribute cocaine
is punishable by imprisonment of no less than five years, nor more than thirty years.16
Citing State v. Dorthey,17 in which the supreme court held that even though a
sentence under the Habitual Offender Law was the minimum the statute provided, the
sentence may still be constitutionally excessive, Howard argues:
If Howard is guilty, he is guilty only of conspiring to sell two rocks of
cocaine to undercover officers, who sought him out and initiated the sale.
Such conduct, though criminal, is plainly at the light end of the
seriousness spectrum of distribution and possession offenses. Likewise,
although he qualifies for a life sentence based on having two prior
convictions, those convictions occurred within several months of each
other, eight years before the instant offense. Howard’s criminal history
does not depict an incurable recidivist who poses a serious danger to
society, and his offensive conduct does not warrant his permanent
removal from free society.
16
La.R.S. 40:967(B)(1).
17
623 So.2d 1276 (La.1993).
9
Trial courts have authority to deviate from a mandatory minimum sentence,
which the Habitual Offender Law proscribes; however, the trial court must be clearly
and firmly convinced that the minimum sentence is excessive under the circumstances
of the case.18
In State v. Johnson,19 our supreme court held:
A sentencing judge must always start with the presumption that a
mandatory minimum sentence under the Habitual Offender Law is
constitutional. A court may only depart from the minimum sentence if
it finds that there is clear and convincing evidence in the particular case
before it which would rebut this presumption of constitutionality.
....
To rebut the presumption that the mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that
because of unusual circumstances this defendant is a victim
of the legislature’s failure to assign sentences that are
meaningfully tailored to the culpability of the offender, the
gravity of the offense, and the circumstances of the case.
When determining whether the defendant has met his burden of
proof by rebutting the presumption that the mandatory minimum
sentence is constitutional, the trial judge must also keep in mind the
goals of the Habitual Offender Law. Clearly, the major reasons the
Legislature passed the Habitual Offender Law were to deter and punish
recidivism. Under this statute the defendant with multiple felony
convictions is treated as a recidivist who is to be punished for the instant
crime in light of his continuing disregard for the law of our state. He is
subjected to a longer sentence because he continues to break the law.
To support his position, Howard cites State v. Combs,20 in which Combs was
sentenced to life imprisonment as a third felony offender under La.R.S. 15:529.1, and
18
State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.
19
Id at 676-77.
20
02-1920 (La.App. 4 Cir. 5/21/03), 848 So.2d 672.
10
the fifth circuit found his sentence to be excessive given the circumstances of his case.
The underlying offense, committed in 1999, was for possession of a small amount of
cocaine with intent to distribute. The predicate offenses were for forgery in 1986 and
possession of cocaine in 1996. Combs, who was thirty-two, presented testimony from
his family regarding his addiction to cocaine. They testified as to his steady
employment to support his family despite his addiction. The fifth circuit noted that
none of his offenses were violent offenses and concluded that the life sentence
imposed was not proportionate to the crimes for which he was convicted. The court
further remarked that, because of a change in the Habitual Offender Law following
his conviction but before his sentencing, Combs would not have qualified for a life
term under the current law.
In the instant case, Howard was found to be a habitual offender on November
5, 2003, the same day he was sentenced to fifteen years at hard labor on the conviction
for conspiracy to distribute controlled dangerous substances. At the time the trial
court imposed the fifteen-year sentence, it reviewed Howard’s pre-sentence
investigation report and noted Howard’s extensive prior criminal history which started
in 1987 and included arrests for aggravated battery, aggravated rape, simple burglary,
simple assault, criminal damage to property, and culminating with the convictions for
aggravated battery and distribution of drugs in 1992 and 1993, respectively. These
latter convictions resulted in imprisonment with the Department of Corrections. At
the time of Howard’s sentencing on the underlying conviction, he did not introduce
any mitigating evidence which could have supported a reduction of the term of
imprisonment imposed.
Immediately following his sentencing on the conspiracy conviction, he was
found to be a habitual offender and his fifteen-year sentence was vacated. During the
habitual offender hearing, it was revealed that, at the time of the underlying offense,
he was on parole, having been out of prison a little more than four years. Again, prior
to sentencing, he presented no evidence which could have convinced the trial court he
was exceptional in that, because of unusual circumstances, he was a victim of the
legislature’s failure to assign sentences that were meaningfully tailored to his
culpability, the gravity of his offense, and the circumstances of his case. As noted,
while the Defendant orally objected to the sentence as being excessive, he failed to file
11
a written motion assigning specific grounds why the sentence would be excessive in
his case.
Accordingly, he failed to rebut the presumption that the mandatory sentence
of life imprisonment is not constitutionally excessive. Thus, this assignment is without
merit.
CONCLUSION
We affirm Howard’s conviction for conspiracy to distribute a controlled
dangerous substance and the life sentence imposed on him pursuant to the Habitual
Offender Law.
CONVICTION AND SENTENCE AFFIRMED.
12