The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
16-140
STATE OF LOUISIANA
VERSUS
STEVE DUANE WILLIAMS
AKA AYAZ SUTARIA
************
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 317,214
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
************
JAMES T. GENOVESE
JUDGE
************
Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery,
Judges.
CONVICTIONS AFFIRMED.
SENTENCES AFFIRMED AS AMENDED,
WITH INSTRUCTIONS.
Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Steve Duane Williams
Steve (Stephen) D. Williams
Rapides Parish Detention Center III
7400 Academy Drive
Alexandria, Louisiana 71303
In Proper Person
J. Phillip Terrell, Jr., District Attorney
Ninth Judicial District
Jermaine L. Harris, Assistant District Attorney
Post Office Drawer 1472
Alexandria, Louisiana 71309-1472
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana
GENOVESE, Judge.
Defendant, Steve Duane Williams (a/k/a Ayaz Sutaria), was convicted by a
jury of one count of possession with intent to distribute cocaine and one count of
possession of hydrocodone. After a habitual offender hearing, he was adjudicated
a third felony offender and sentenced to twenty years at hard labor on the cocaine
conviction and five years at hard labor on the hydrocodone conviction. He appeals
his convictions and sentences. Through appellate counsel, he alleges insufficiency
of the evidence and excessive sentences. Defendant has also filed a brief with pro
se assignments or error, alleging various due process violations. For the following
reasons, we affirm Defendant’s convictions and sentences, but amend his sentence
on the conviction of possession with intent to distribute cocaine to require that only
the first two years of that sentence be served without benefit of parole. We also
direct the trial court to give notice to Defendant of his right to post-conviction
relief.
PROCEDURAL HISTORY
Defendant was charged in October 2013 by a bill of information with one
count of possession with intent to distribute a controlled dangerous substance,
Schedule II, cocaine, a violation of La.R.S. 40:967(A)(1), one count of possession
with intent to distribute a controlled dangerous substance, Schedule III,
hydrocodone, a violation of La.R.S. 40:968(A)(1), and one count of possession of
marijuana, second offense, a violation of La.R.S. 40:966(E)(2).
After commencement of Defendant’s jury trial, the State nolle prossequied
the charge of possession of marijuana. At trial, Defendant was found guilty as
charged on count one, possession of crack cocaine with intent to distribute. On
count two, he was found guilty of the lesser offense of possession of hydrocodone,
a violation of La.R.S. 40:968(C). Defendant then filed a Motion for Post Verdict
Judgment of Acquittal and a Motion for Mistrial, which were denied. Thereafter,
the State charged Defendant as a habitual offender pursuant to La.R.S. 15:529.1.
At his habitual offender hearing, Defendant was adjudicated a third felony
offender. He was subsequently sentenced to twenty years at hard labor on the
conviction for possession of cocaine with intent to distribute, without the benefit of
parole, probation, or suspension of sentence, and five years at hard labor on the
conviction for possession of hydrocodone. The two sentences were ordered to be
served concurrently for a total of twenty years imprisonment. Defendant filed a
Motion to Reconsider Sentence, which was denied by the trial court.
FACTS
At trial, Eddie Andrus, a detective with the Rapides Parish Sheriff’s Office,
Metro Narcotics Division, testified that on April 30, 2013, he conducted an
investigation involving Defendant. He stated that a woman, who had been
apprehended with crack cocaine, informed the police that she had purchased the
cocaine from someone she knew only as “Sonny.”1 She then took the police to
2108 Mason Street, Alexandria, Louisiana, the address where she had purchased
the drug. Within twenty-four hours of receiving this information, the police
obtained a search warrant for that address.
On May 3, 2013, as the police drove up to the house on Mason Street, they
saw a man standing in the doorway. When the man saw them, he turned and raced
towards the back of the house. Detective Andrus identified the man in the
doorway as Defendant. As the door was still open, Detective Andrus said they
announced themselves and entered. There was an elderly woman sitting in the
front room, who was Defendant’s mother. As they moved towards the back of the
1
In the trial transcript, the person who sold the crack cocaine was referred to as “Sonny.”
In the search warrant affidavit and in Defendant’s pro se brief, the person who sold the cocaine is
referred to as “Sunny.”
2
house, they saw Defendant exit a room, closing the door behind him. Defendant
advised the officers not to enter because there was a vicious dog in the bedroom.
Despite the warning, Detective Andrus entered the room. In the room, he and
other detectives saw a marijuana blunt in an ashtray in plain sight. They located
two baggies of a substance they believed to be crack cocaine, a pill bottle
containing fifteen pills, and five and a half pills wrapped separately in plastic. In
the bedroom, they also found a letter addressed to Defendant at the Mason Street
address. Upon searching Defendant incidental to his arrest, they found two
thousand four hundred and sixty-five ($2,465.00) dollars in his pocket. Along with
the money was a Louisiana identification card with Defendant’s name, picture, and
the Mason Street address on it. There was no evidence in the bedroom that
Defendant was employed.
Detective Andrus stated a second man was found sleeping in a back
bedroom. He explained that the second man and Defendant’s mother were not
arrested. Although he agreed that they had access to the bedroom which contained
the drugs, there was no evidence they were involved.
Detective Andrus testified that the pill bottle, labeled Alprazolam, was
prescribed to Belinda M. Howard. He explained that Belinda Mills Howard was
the woman who was initially caught with the crack cocaine purchased from
“Sonny” at the Mason Street address.
John Treadway, also a detective with the Rapides Parish Sheriff’s Office,
Metro Narcotics Division, was with Detective Andrus when they arrived at
Defendant’s house. His testimony corroborated Detective Andrus’ testimony.
Detective Treadway also stated that the “vicious” dog in the bedroom was
whimpering under the bed when they entered the room and did not come out as
they searched. When he entered the room, Detective Treadway stated that he saw
3
the marijuana blunt in an ashtray on the dresser and that he located the baggies of
crack cocaine and the pill bottle together behind an old gas heater.
Alex King, a forensic chemist with the North Louisiana Criminalistics
Laboratory, did the analysis to determine the composition of the drugs found in the
Mason Street house. Mr. King testified that the pills were pharmaceutical
preparations containing hydrocodone with a non-narcotic ingredient. The off-
white substance was determined to be cocaine. Mr. King further testified that the
two baggies together contained 25.98 grams of cocaine.
Reginald Cooper, a lieutenant with the Alexandria Police Department,
testified that in the year 2000, he had searched the Mason Street house based on
information given to him by a confidential informant and had located a trunk full
of drugs. On that occasion, Defendant was arrested and charged with distribution
of cocaine as part of the investigation. In that prior case, Defendant pled guilty and
was sentenced to fifteen years in prison.
Captain Larry Coutee, a thirty-eight year veteran with the Alexandria Police
Department, was qualified as an expert in the field of distribution, packaging, and
manufacturing of crack cocaine. He testified that he was also involved in the 2000
drug investigation which resulted in Defendant being convicted of distribution of
crack cocaine. Captain Coutee further testified that, in the instant case, the amount
of crack cocaine found, a less than twenty-six grams, was consistent with
distribution of cocaine. He estimated the cost of the drugs Defendant had in his
possession to be worth more than two thousand five hundred ($2,500.00) dollars,
much more than what a person would usually spend at one time for personal use.
He also explained that in the case of a dealer pedaling crack cocaine, there
generally will not be regular drug user paraphernalia found with the drugs, which
is another indicator that the drugs were not for personal use. Finally, he noted that
4
a large amount of money in the pocket of a suspected drug dealer can also be
deemed to be evidence of his or her occupation as such.
Anthony Ferrell, Defendant’s nephew, testified that the cocaine located
behind the old gas heater belonged to him. He explained that he had been living
with his grandmother, Defendant’s mother, at the Mason Street house, in the same
room where the drugs were located. At the time of Defendant’s trial, Mr. Ferrell
was in prison for offenses unrelated to drugs. At the time of his testimony, he had
about two-and-a-half more years left to serve before he would be released from
incarceration. He stated that shortly before he went to prison, he left the cocaine
behind the gas heater for when he got out. Mr. Ferrell stated that the cocaine was
for his personal use. He further stated that Defendant moved into the house after
he became incarcerated, which was two to three months prior to Defendant’s
arrest. Mr. Ferrell also claimed that Belinda Howard had spent the night at his
grandmother’s house, had left the pill bottle, and had never returned to retrieve it;
however, he was not clear about when Ms. Howard had stayed overnight and had
no explanation as to how the pill bottle got behind the gas heater with the cocaine.
Defendant testified in his own defense. After a long diatribe about how he
was picked on by police officers because he was African American, he explained
that he had been living somewhere else, but was in the process of moving in with
his mother. He stated that he had already changed his address to the Mason Street
house and that that was the reason the letter found in the bedroom was sent to him
at that address. He further stated that when he saw the police advancing on the
house, he ran to put his puppy in the bedroom because he did not want the police to
shoot the dog. He denied that the cocaine was his and stated that he did not even
know the cocaine and the pill bottle were in the room.
5
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find two
errors patent.
In the first error patent, we note an illegally excessive sentence relative to
parole. Defendant was sentenced, as a third felony habitual offender, to serve
twenty years at hard labor on his conviction of possession with the intent to
distribute cocaine. The number of years to be served without the benefit of parole,
probation, or suspension of sentence is not entirely clear. At Defendant’s
sentencing hearing, the trial court stated in pertinent part:
I’m going to sentence you for possession with intent, CDS II to
twenty years. . . . And will be without – under the statute will be[]
without benefit of probation or suspension, but it doesn’t say without
benefit of parole. So I’m going to do a minimum of ten years without
benefit of parole, probation or suspension of sentence.
....
It’s day per day? Okay. Well, I was reading the statute and it
just said – it just said without benefit of – any sentence imposed under
the provisions of this section shall be at hard labor without benefit of
probation or suspension of sentence. And I didn’t know what the
distinction there was.
....
So if for some reason that doesn’t make it day per day, I’m
going to do ten years without benefit of probation, parole or
suspension of sentence. Otherwise it will be in accordance with the
statute in DOC rules.
At the hearing on Defendant’s Motion to Reconsider Sentence, the
prosecutor, Mr. Harris, stated that he wished to clarify the sentence on the
conviction for possession with the intent to distribute cocaine:
BY MR. HARRIS:
He was sentenced to 20 years on the Count One,
Possession with Intent to Distribute CDS II. I think there
6
was some confusion because one portion, I believe the
Court said that it was 10 years suspended without parole
and then I guess the other 10 years would’ve been
eligible, but I believe that’s not appropriate under the
Statute for Habitual Offenders so I want the – and I
believe you said that later, but the minutes don’t reflect
that.
BY THE COURT:
Okay. Yeah, I said it would be a minimum, unless
the law provides otherwise. So if the law provides
otherwise, then I defer to that. It would be, it would be
all 20.
BY MR. HARRIS:
So could the minutes reflect that, that that is in fact
not the case and for clarification purposes, it’s 20 years
hard labor on the Count One pursuant to the Habitual
Offenders statute.
The trial court later issued “Written Reasons for Determination Pursuant to
R.S. 15:529.1” which stated that the twenty year sentence for possession of cocaine
with the intent to distribute is to be served without benefit of parole, probation, or
suspension of sentence. Thus, it appears that the entire twenty year sentence was
imposed without benefit of parole. This renders the sentence illegally excessive.
In State v. Dossman, 06-449, 06-450, pp. 2-3 (La.App. 3 Cir. 9/27/06), 940
So.2d 876, 879, writ denied, 06-2683 (La. 6/1/07), 957 So.2d 174, this court
addressed a similar situation:
Although Section G of the habitual offender statute requires all
enhanced sentences to be imposed without benefit of probation or
suspension of sentence, it does not authorize the trial court to impose
enhanced sentences without benefit of parole. La.R.S. 15:529.1(G).
“[T]he restrictions on parole eligibility imposed on multiple offender
sentences under La.R.S. 15:529.1 ‘are those called for in the reference
statute.’” State v. Tate, 99-1483, pp. 1-2 (La.11/24/99), 747 So.2d
519, 520 (citation omitted). The penalty provision for unauthorized
entry of an inhabited dwelling, the reference statute in the present
case, does not authorize the trial court to impose any portion of the
sentence without benefit of parole. La.R.S. 14:62.3. Thus, the trial
court improperly denied parole eligibility. Accordingly, we amend
Defendant’s sentence to delete the denial of parole eligibility. See
7
State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193 and
State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.
Further, we instruct the trial court to make an entry in the minutes
reflecting this change. See Tate, 747 So.2d 519.
The statute at issue, La.R.S. 40:967(B)(4)(b), requires that only the first two
years of the sentence to be served without the benefit of parole. Accordingly, we
amend Defendant’s sentence for possession with the intent to distribute cocaine to
require that only the first two years of his sentence be served without the benefit of
parole. The trial court is instructed to make an entry in the court minutes reflecting
this change.
The second error patent arises out of the fact that the record before this court
does not indicate that the trial court advised Defendant of the prescriptive period
for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus,
the trial court is directed to inform Defendant of the provisions of article 930.8 by
sending appropriate written notice to Defendant within fifteen days of the rendition
of this opinion and to file written proof in the record that said notice has been
given. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied,
05-1762 (La. 2/10/06), 924 So.2d 163.
ASSIGNMENTS OF ERROR
The following assignments of error have been submitted by Defendant’s
appellate counsel and also by Defendant pro se:
ATTORNEY ASSIGNMENTS OF ERROR:
1. The evidence presented at trial, when viewed in a light most
favorable to the prosecution, was insufficient to sustain the
convictions.
2. The trial court erred in admitting evidence without having the
[S]tate establish that the evidence was[,] in fact[,] what it was
purported to be.
8
3. The sentences imposed by the trial court were cruel, unusual and
excessive, in violation of Article I, § 20 of the Louisiana Constitution
of 1974.
DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR2:
[1.] Should the [c]ourt have allowed [Defendant] proper due process
which would have allowed a preliminary examination?
[2.] The [c]ourt [erred] by not allowing [Defendant] his right to a fair
trial.
[3.] By the [c]ourt not [allowing Defendant] a Preliminary
Examination, probable cause was never cross-examined[,] and the
court violated [Defendant’s] rights[] by forming a[] conviction off of a
partial record[,] whereas an appeal will be base[d] off of a partial
judgment[] because certain evidence is not [a part] of the record[;] the
affidavit of probable cause in support of the application for search
warrant, initial police report, and supplemental police reports.
[4.] The evidence presented at trial was insufficient to sustain the
conviction on possession with the intent to distribute.
[5.] The trial court failed to carry [its] burden of proof, probability of
misidentification that [Defendant] was the offender [involved] in the
incident of Belinda Mills.
[6.] The trial court [committed] fatal error in denying the
[Defendant’s] rights to Due Process.
[7.] The trial court [erred] in suppression of exculpatory evidence to
aid the defense in preparing a proper defense for [Defendant].
ATTORNEY ASSIGNMENT OF ERROR NUMBER ONE
In brief, Defendant asserts that the State failed to prove that he had
knowingly possessed the crack cocaine with intent to distribute or that he
knowingly and illegally possessed hydrocodone.
When the issue of sufficiency of evidence is raised on appeal,
the critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
2
For clarity, Defendant’s seven pro se assignments of error have been categorized into
five specific errors as argued in his brief and as hereinafter addressed.
9
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v.
King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the
factfinder is to weigh the respective credibility of each witness.
Therefore, the appellate court should not second guess the credibility
determinations of the factfinder beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ
denied, 99-3259 (La. 5/5/00), 761 So.2d 541.
Further, in State v. Ortiz, 96-1609, p. 12 (La. 10/21/97), 701 So.2d 922, 930,
cert. denied, 524 U.S. 943, 118 S.Ct. 2352 (1998), the Louisiana Supreme Court
stated:
When circumstantial evidence is used to prove the commission of the
offense, La.R.S. 15:438 requires that “assuming every fact to be
proved that the evidence tends to prove, in order to convict, it must
exclude every reasonable hypothesis of innocence.” This is not a
separate test to be applied when circumstantial evidence forms the
basis of a conviction; all evidence, both direct and circumstantial must
be sufficient to satisfy a rational juror that the defendant is guilty
beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142
(La.1985).
Defendant was convicted of possession of cocaine with intent to distribute
and illegal possession of hydrocodone. Cocaine is a Schedule II controlled
dangerous substance. La.R.S. 40:964(A)(4). Louisiana Revised Statutes
40:967(A)(1) provides that it is illegal to possess cocaine with the intent to
distribute the drug. At the time Defendant was charged, hydrocodone with a non-
narcotic ingredient was a Schedule III controlled dangerous substance. La.R.S.
40:964(D)(d). It is illegal to possess hydrocodone without a valid prescription.
La.R.S. 40:968(C).
Defendant argues that he did not know the cocaine or the bottle of
hydrocodone pills were in the bedroom. He points out that other people had access
10
to the room. Defendant testified he was in the process of moving into his mother’s
house; thus, he had his mail forwarded to her house. Defendant insisted he was
unaware that the cocaine was in the room, hidden as it was behind an old gas
heater, next to a pill bottle that contained hydrocodone pills with Belinda M.
Howard’s name on the label. He further points out that Ms. Howard, who directed
the police to the address on Mason Street, indicated she purchased the cocaine
from someone named “Sonny.” Defendant argues the State failed to prove both
that he possessed the drugs and that he had the intent to distribute the cocaine.
Accordingly, he alleges that there was insufficient evidence to sustain the
convictions.
The first circuit, in State v. Griffin, 07-974, pp. 9-11 (La.App. 1 Cir. 2/8/08),
984 So.2d 97, 107-08, discussed possession of drugs and whether the evidence was
sufficient to establish that the defendant had the specific intent to distribute crack
cocaine, as follows:
On the issue of whether the evidence sufficiently proved
possession, the State is not required to show actual physical
possession of the narcotics by a defendant in order to convict. See
State v. Trahan, 425 So.2d 1222, 1226 (La.1983). Constructive
possession is sufficient. A person is considered to be in constructive
possession of a controlled dangerous substance if it is subject to his
dominion and control, regardless of whether it is in his physical
possession. Id. However, the mere presence in the area where
narcotics are discovered or mere association with the person who does
control the drug or the area where it is located is insufficient to
support a finding of constructive possession. See State v. Harris, 94-
0970, p. 4 (La.12/8/94), 647 So.2d 337, 338 (per curiam).
A determination of whether there is “possession” sufficient to
convict depends on the peculiar facts of each case. State v. Gordon,
93-1922, p. 9 (La.App. 1st Cir.11/10/94), 646 So.2d 995, 1002.
Factors to be considered in determining whether a defendant exercised
dominion and control sufficient to constitute possession include his
knowledge that drugs were in the area, his relationship with the person
found to be in actual possession, his access to the area where the drugs
were found, evidence of recent drug use, and his physical proximity to
the drugs. State v. Toups, 2001-1875, p. 4 (La.10/15/02), 833 So.2d
910, 913.
11
Guilty knowledge is an essential element of the crime of
possession of cocaine. However, since knowledge is a state of mind,
it need not be proven as fact, but rather, may be inferred from the
circumstances. State v. Major, 2003-3522, pp. 8-9 (La.12/1/04), 888
So.2d 798, 803. Herein, the defendant does not contest his possession
of the cocaine. However, the defendant does contest the knowledge
element of the offense.
....
As to the evidence of defendant’s intent to distribute crack
cocaine, it is well settled that intent to distribute may be inferred from
the circumstances. [State v.] Hearold, 603 So.2d [731] at 735
[(La.1992)]. Factors useful in determining whether the State’s
circumstantial evidence is sufficient to prove intent to distribute
include: (1) whether the defendant ever distributed or attempted to
distribute illegal drugs; (2) whether the drug was in a form usually
associated with distribution; (3) whether the amount was such to
create a presumption of intent to distribute; (4) expert or other
testimony that the amount found in the defendant’s actual or
constructive possession was inconsistent with personal use; and (5)
the presence of other paraphernalia evidencing intent to distribute.
State v. House, 325 So.2d 222, 225 (La.1975).
In the absence of circumstances from which an intent to
distribute may be inferred, mere possession of illegal drugs is not
evidence of intent to distribute unless the quantity is so large that no
other inference is reasonable. See State v. Greenway, 422 So.2d 1146,
1148 (La.1982).
In the instant case, we find the evidence was sufficient to establish
constructive possession of the drugs by Defendant. It is true, as noted above, that
simply being present in the area where narcotics are discovered does not
necessarily support a finding of constructive possession. However, when
Defendant saw the police exit their vehicle in front of the house, he rushed back to
the bedroom. As the police began searching the house, Defendant came out of the
bedroom, closing the door behind him, and claimed that there was a vicious dog
inside the room. He told the police not to enter. The dog, however, was seemingly
more afraid of the police than they were of it, as the dog remained under the bed
the entire time they were searching the room. The exaggeration of the dog’s
ferociousness in an apparent attempt to keep the police out of the room could have
12
convinced the jury that Defendant knew the drugs were there, thus evidencing his
guilty state of mind.
Defendant’s nephew, Anthony Ferrell, testified that the cocaine was his and
that he had left the cocaine in two baggies on the floor behind the gas heater to
await his return from prison. According to Mr. Ferrell’s testimony, he went to
prison in 2013. At Defendant’s trial in 2015, Mr. Ferrell testified that he had two
and a half years more prison time to serve. The jury could easily have found it
hard to believe that someone would stash twenty-five hundred ($2,500.00) dollars
of crack cocaine loosely in two baggies behind a heater, knowing that he would not
return to that room for at least five years. Obviously, the jury chose not to believe
Mr. Ferrell’s testimony. “It is the role of the factfinder to weigh the respective
credibility of the witness, and therefore the appellate court should not second guess
the credibility determination of the trier of fact beyond the sufficient evaluations
under the Jackson standard of review.” State v. Johnson, 01-1084, p. 3 (La.App. 3
Cir. 2/6/02), 817 So.2d 120, 123. See also State ex rel. Graffagnino v. King, 436
So.2d 559 (La.1983).
Further, even if the drugs did belong to Mr. Ferrell prior to his being
incarcerated, someone still sold Ms. Howard crack cocaine the day before from
that location, and it was not Mr. Ferrell. If this was the case, it appears that
Defendant was aware of the cocaine and commenced selling it, thereby taking
dominion and control of the drug. It is well established jurisprudence that a person
can have constructive possession if he jointly possesses drugs with another and if
he willfully and knowingly shares with his partner the right to control the drugs.
State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, writ denied, 09-
2485 (La. 4/23/10), 34 So.3d 269.
13
We also find that the evidence was sufficient to establish that Defendant
possessed the cocaine with intent to distribute. Captain Larry Coutee testified as
an expert in crack cocaine manufacturing, packaging, and distribution. Captain
Coutee testified that the street value of the crack cocaine found in Defendant’s
possession was around twenty-five hundred ($2,500.00) dollars. He further stated
that in most cases, someone who was only using cocaine could not afford to
purchase that much cocaine at one time. Captain Coutee explained that crack
cocaine is cooked and comes out as rocks, which are broken up into small pieces
and sold for around twenty ($20.00) dollars apiece. The fact that Defendant had
over two thousand four hundred ($2,400.00) dollars in his pocket, mostly all
twenty ($20.00) dollar bills, also indicated that he was dealing rather than keeping
all of the drug for personal use; and, Detective Andrus testified there was no
evidence that Defendant was employed at the time of his arrest. Furthermore, if
Defendant possessed the drug for personal use, there should have been some drug
paraphernalia, such as a pipe from which to smoke the drug, and no pipe or any
other smoking paraphernalia were found. Finally, as previously noted above,
Defendant had a history of selling crack cocaine from that address.
With regard to the hydrocodone, Defendant argues in brief that the evidence
was insufficient to establish that he possessed hydrocodone with intent to
distribute; however, Defendant was found guilty only of illegal possession of the
hydrocodone pills. Though there was no clear evidence he was distributing the
drug, Defendant produced no evidence that he had a valid prescription for the drug.
Whereas the jury had sufficient reason to conclude that Defendant was in the
business of selling crack cocaine, and the pills were found hidden with the cocaine,
it was reasonable for the jury to conclude that Defendant illegally possessed the
pills.
14
Considering the evidence in a light most favorable to the prosecution as we
are compelled to do, we find that the evidence was sufficient for the jury to find
Defendant guilty of possession of the crack cocaine with intent to distribute and
guilty of illegal possession of the hydrocodone pills. Accordingly, there is no
merit to this assignment of error.
ATTORNEY ASSIGNMENT OF ERROR NUMBER TWO
Defendant contends that the trial court erred when it allowed Alex King, the
forensic chemist who testified regarding the drugs submitted for testing, to identify
the pills found in a pill bottle labeled “Alprazolam” as hydrocodone with a non-
narcotic ingredient by visual inspection only. Defendant argues that while visual
inspection of a drug such as pills has been held to be sufficient, testimony alone
without other corroborating evidence, whether direct or circumstantial, was not
sufficient.
In State v. Smith, 12-2358, pp. 4-6 (La. 12/10/13), 130 So.3d 874, 877-78
(emphasis added), our supreme court held:
Substantial jurisprudence exists, in fact, for the proposition that a
contraband drug may be identified by circumstantial evidence as well
as direct testimony with respect to scientific tests conducted on the
substance. See, e.g., United States v. Eakes, 783 F.2d 499, 505 (5th
Cir.1986) (Such circumstantial proof may include “ ‘ “evidence of the
physical appearance of the substance involved in the transaction,
evidence that the substance produced the expected effects when
sampled by someone familiar with the illicit drug, evidence that the
substance was used in the same manner as the illicit drug, testimony
that a high price was paid in cash for the substance, evidence that
transactions involving the substance were carried on with secrecy or
deviousness, and evidence that the substance was called by the name
of the illegal narcotic by the defendant or others in his presence.” ’ ”)
(quoting United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984)
(quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th
Cir.1976))); State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d
709, 713-14 (“The federal courts subscribe generally to the view
that the ‘government need not introduce scientific evidence to
prove the identity of a substance . . . as long as there is sufficient
lay testimony or circumstantial evidence from which a jury could
find that a substance was identified beyond a reasonable doubt,
15
the lack of scientific evidence does not warrant reversal.’
Identification of a controlled substance does not require direct
evidence if available circumstantial evidence established its identity
beyond a reasonable doubt. . . . Identification based upon familiarity
through law enforcement coupled with present observation of the
substance at hand will suffice to establish the illicit nature of a
suspected substance.”) (quoting United States v. Harrell, 737 F.2d
971, 978 (11th Cir.1984) (other citations omitted)); State v. Chatman,
599 So.2d 335, 347 (La.App. 1 Cir.1992) (“As long as there is
sufficient lay testimony or circumstantial evidence from which a jury
could find beyond a reasonable doubt that a substance was identified
beyond a reasonable doubt, the lack of scientific evidence does not
warrant reversal.”) (citing United States v. Sanchez DeFundora, 893
F.2d 1173, 1175 (10th Cir.1990)).
At trial, Mr. King testified that “the pharmaceutical tablets in this case are
items A, B and G, and those items were visually characterized pharmaceutical
preparations containing hydrocodone with a non-narcotic ingredient[,] which is a
Schedule III in Louisiana at that time.” He further explained:
If they look like – if they are pharmaceutical tablets and they don’t
look like they’ve been messed with in any way – the markings are
intact on them. The shape and size of the tablets are intact.
Sometimes if the tablets come in contact with bodily fluids or
moisture you’ll lose that so we’ll have to do a more in depth analysis.
That wasn’t the case on this evidence. So when the pharmaceutical
tablets that come from a legitimate manufacturer and dispensed by a
pharmacy, we just do a visual examination on those. We use a
reference library that’s used nationwide by law enforcement. So we
do have paperwork to back up that visual examination. But that’s all
that’s necessary for that type of evidence.
In a fifth circuit case, State v. Murphy, 09-432 (La.App. 5 Cir. 11/24/09), 28
So.3d 496, writ denied, 10-16 (La. 6/25/10), 38 So.3d 334, several pills were
discovered in defendant’s shoe. At trial, a forensic chemist testified that upon
visual inspection he determined, using reference material as in the present case,
that the pills were a Schedule IV drug. The arresting officer also testified that he
identified the pills using a reference book which described various narcotics and
showed pictures of the pills. The fifth circuit determined that despite the lack of
scientific evidence, the expert’s visual examination and testimony, together with
16
the officer’s testimony, was sufficient. In Murphy, the fifth circuit referred to a
third circuit case, State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734,
writ denied, 08-1083 (La. 1/9/09), 998 So.2d 712, that discussed visual inspection
of a pill suspected of being hydrocodone, as follows:
Even without the benefit of direct scientific evidence, we find
that the expert testimony of Mr. Waguespack was sufficient to show
the pills contained clonazepam. The Louisiana Supreme Court has
adopted the view of the federal courts that the “ ‘government need not
introduce scientific evidence to prove the identity of a substance . . .
as long as there is sufficient lay testimony or circumstantial evidence
from which a jury could find that a substance was identified beyond a
reasonable doubt, the lack of scientific evidence does not warrant
reversal.’ ” State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d
709, 713 (quoting United States v. Sanchez DeFundora, 893 F.2d
1173, 1175 (10th Cir.1990), cert. denied, 495 U.S. 939, 110 S.Ct.
2190, 109 L.Ed.2d 518 (1990)). The supreme court further found,
“[i]dentification based upon familiarity through law enforcement
coupled with present observation of the substance at hand will suffice
to establish the illicit nature of a suspected substance.” Harris, 02-
1589 at 6, 846 So.2d at 714 (citing United States v. Harrell, 737 F.2d
971, 978-79 (11th Cir.1984)).
Further, in a case factually similar to the instant matter, the
Third Circuit found the evidence at trial was sufficient to support the
defendant’s conviction for possession with intent to distribute
hydrocodone. State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981
So.2d 734, writ denied, 08-1083 (La.1/9/09), 998 So.2d 712. In that
case, officers recovered pills from under the back seat of a police car
after the defendant exited the vehicle. Id., 07-1237 at 14, 981 So.2d at
743. At trial, an expert in forensic chemistry testified that the pills
contained hydrocodone. He stated he had not performed chemical
analysis on the pills, but had identified them by visual inspection and
comparison to pictures in a book. Id., 07-1237 at 14, 981 So.2d at
744. Additionally, a police officer testified he had seen similar pills in
the past in connection with his job, and that the pills at issue were
hydrocodone pills. Id. Relying in part on State v. Harris, the Third
Circuit found there was sufficient lay and expert testimony from
which the jury could find beyond a reasonable doubt that the pills at
issue were hydrocodone. Carter, 07-1237 at 16, 981 So.2d at 745.
Murphy, 28 So.3d at 499-500.
In the instant case, as in Murphy and Carter, while not exactly testifying that
he was the one who initially identified the pills, when asked how he concluded that
17
the pills were hydrocodone after they were discovered in Defendant’s room,
Detective Andrus answered:
Generally[,] someone on scene takes their phone and you can
Google a description of the pill and it will show results in there. And
when you click on it, it will give you an actual picture of the pill that
you’re Googling and you can visually identify to match. And it will
tell you what schedule that pill is.
Detective Andrus testified that he had been in law enforcement for more
than twelve years, six years with the Metro Narcotic Unit. He further testified that
he had received extensive training in narcotics investigations and field testing of
drugs. Mr. King testified he had been with North Louisiana Criminalistics
Laboratory for fifteen years and had qualified as an expert in drug analysis in
several district courts in Louisiana.
Based on the expert testimony of Mr. King, together with Detective Andrus’
testimony, we find that the evidence was sufficient for the jury to conclude that the
pills seized from Defendant’s house were hydrocodone. Accordingly, we find that
the trial court did not err in allowing the admission of the evidence. Thus, there is
no merit to this assignment of error.
ATTORNEY ASSIGNMENT OF ERROR NUMBER THREE
Defendant argues that the mandatory minimum sentence of twenty years
without the benefit of parole constituted cruel and unusual punishment and was
constitutionally excessive.
Defendant was convicted of possession of a controlled dangerous substance,
Schedule II, with intent to distribute. Louisiana Revised Statutes 40:967(B)(4)(b)
provides for a range of imprisonment “at hard labor for not less than two years not
more than thirty years, with the first two years of said sentence being without
benefit of parole[.]” Defendant was sentenced, however, under the Habitual
Offender Law. The applicable habitual offender provision for a third felony
18
offender provides: “The person shall be sentenced to imprisonment for a
determinate term not less than two-thirds of the longest possible sentence for the
conviction and not more than twice the longest possible sentence proscribed for the
first conviction[.]” La.R.S. 15:529.1(A)(3)(a). Defendant was sentenced to twenty
years at hard labor, the mandatory minimum sentence.
Article 1, § 20 of the Louisiana Constitution of 1974, prohibits
“cruel, excessive, or unusual punishment.” A sentence which falls
within the statutory limits may nevertheless be excessive under the
circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v.
Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an
excessive sentence this court must find that the penalty is so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and, therefore, is nothing more than needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ
denied, 536 So.2d 1233 (La.1989). The trial judge is given wide
discretion in imposing a sentence, and a sentence imposed within the
statutory limits will not be deemed excessive in the absence of
manifest abuse of discretion. State v. Howard, 414 So.2d 1210
(La.1982).
State v. Walker, 96-112, pp. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-35,
writ denied, 96-1767 (La. 12/6/96), 684 So.2d 924.
A trial court must look at the particular circumstances of the
case and the defendant’s background in order to impose a sentence
that is suited for him. On review, the issue is not whether another
sentence would have been more appropriate; rather, it is whether the
trial court abused its discretion.
State v. Beverly, 03-1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107, 110
(footnotes omitted).
Mandatory minimum sentences imposed on multiple offenders
under the Habitual Offender Law are presumed to be constitutional,
and a defendant bears the burden of rebutting that presumption. State
v. Ladd, 13-1663, p. 3 (La.App. 4 Cir. 7/2/14), 146 So.3d 642, 644,
vacated and remanded on other grounds, 14-1611 (La. 3/27/15), 164
So.3d 184, (citing State v. Johnson, 97-1906, pp. 5-6 (La. 3/4/98), 709
So.2d 672, 675, and State v. Short, 96-2780, p. 8 (La.App. 4 Cir.
11/18/98), 725 So.2d 23, 27). To rebut the presumption that a
mandatory minimum sentence is constitutional, a defendant must
clearly and convincingly show that:
19
[he] is exceptional, which in this context means that
because of unusual circumstances, the 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.
Id. (quoting State v. Lindsey, 99-3302, p. 5 (La. 10/17/00), 770 So.2d
339, 343). “[D]epartures downward from the minimum sentence
under the Habitual Offender Law should occur only in rare
situations.” Lindsey, p. 5, 770 So.2d at 343 (quoting Johnson, 97-
1906, p. 8, 709 So.2d at 677).
State v. Hall, 14-1046, p. 15 (La.App. 4 Cir. 5/15/15), 172 So.3d 61, 70.
In brief, Defendant’s total argument consists of an assertion that his twenty
year sentence and his five year sentence are “constitutionally excessive as they
make no contribution to acceptable goals of punishment and are nothing more than
the purposeless imposition of pain and suffering and are grossly out of proportion
to the severity of the crime.” Defendant does not explain how the mandatory
sentence is excessive in his case or in what way he is exceptional or a victim of the
legislature’s failure to assign a sentence that is meaningful to his circumstance.
Thus, Defendant has failed to meet his burden of proof. There is no merit to this
assignment of error.
PRO SE ASSIGNMENTS OF ERROR:
Defendant’s pro se assignments of error do not correlate with his argument,
which is one long, somewhat rambling dissertation of the injustice imposed on
him, including discrimination based on race. We categorize Defendant’s seven pro
se assignments of error into five specific errors as follows: 1) Defendant was
denied a preliminary hearing; 2) Defendant’s speedy trial rights were violated
pursuant to La.Code Crim.P. arts. 578 and 701; 3) the State failed to negate any
reasonable probability of misidentification; 4) the search warrant was insufficient;
20
therefore, the evidence should have been suppressed; and, 5) prosecutorial
misconduct.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE3
Defendant argues he was not given a preliminary hearing; therefore, he was
denied the right to prepare a defense. He contends that he could have questioned
the witnesses and established impeachment evidence and Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963) evidence. However, in State v. Lewis, 09-350, pp. 4-
5 (La.App. 4 Cir. 12/16/09), 28 So.3d 548, 552, writ denied, 10-129 (La. 9/3/10),
44 So.3d 697 (footnote omitted), the fourth circuit noted:
While a preliminary examination can act as a discovery
technique, the law does not treat it as such. The primary function of a
preliminary examination is to determine whether probable cause exists
to hold the defendant for the charged offense or a lesser included one.
State v. Mayberry, 457 So.2d 880 (La.App. 3 Cir. 10/10/84).
The State need only present a prima facie case. If the evidence
does not support probable cause, the court must order the defendant’s
release from custody or bail. This is not a judicial dismissal of the
case and the State may still proceed against the defendant. As noted
in State v. Sterling, 376 So.2d 103 (La.1979):
[A] preliminary examination does not determine the
validity of the charge brought against a defendant, but
rather determines whether or not there is probable cause
to deprive the defendant of his liberty. See State v.
Jenkins, 338 So.2d 276 (La.1976).
Id., 376 So.2d at 104.
A conviction renders moot any claim of an improper denial of a
preliminary examination. State v. Jackson, 2001-1268 (La.App. 4 Cir.
2/6/02), 809 So.2d 1127 citing State v. Washington, 363 So.2d 509
(La.1978) and State v. Mayberry, 457 So.2d 880 (La.App. 3
Cir.1984).
In the instant case, Defendant has been convicted. Therefore, the matter is
moot. Furthermore, Defendant’s motion to suppress the evidence was heard on
3
Note that Defendant’s seven assignments of error have been re-designated as
assignments of error one through five as set forth above.
21
October 30, 2015, and Detective Andrus testified regarding whether there existed
sufficient probable cause to issue the search warrant. Detective Andrus was
thoroughly cross-examined, and Defendant had his opportunity to establish
impeachment evidence and Brady material. Accordingly, there is no merit to this
assignment of error.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
On September 23, 2013, Defendant filed a Motion to Quash Bill of
Information wherein he alleged La.Code Crim.P. art. 701(B)(1)(a) required that a
bill of information be filed within sixty days of his arrest. Defendant was arrested
on May 3, 2013, and the bill of information was not filed until October 24, 2013.
He argued that La.Code Crim.P. art. 532(7) required that the indictment be
quashed because he had not been brought to trial in a timely manner. On the same
date, Defendant filed a Motion for Dismissal of Prosecution, alleging that the
search warrant was invalid and illegal. Hearings were scheduled to address all
three motions.
At the hearing on the Motion to Quash the Bill of Information, following
testimony, submission of documents, and arguments, the trial court ruled that
Defendant’s allegation of a 701 violation was moot. In State v. Gordon, 04-633, p.
12 (La.App. 1 Cir. 10/29/04), 896 So.2d 1053, 1062-63, writ denied, 04-3144 (La.
4/1/05), 897 So.2d 600, the first circuit explained why in the current case,
Defendant’s motion was moot pre-trial, is moot now, and quashing the indictment
was not the correct remedy in either case:
Louisiana Code of Criminal Procedure article 701, which
provides the statutory right to a speedy trial, merely authorizes pre-
trial relief. The remedy for a speedy trial violation under article 701 is
limited to release from incarceration without bail or release of the bail
obligation for one not incarcerated. Once a defendant has been
convicted, any allegation of a violation is moot. See State v. Kelly,
92-2446, p. 18 (La.App. 4th Cir.7/8/94), 639 So.2d 888, 896, writ
22
denied, 94-2087 (La.1/6/95), 648 So.2d 921; State v. Cowger, 581
So.2d 283, 286 (La.App. 5th Cir.1991). Therefore, the trial court
properly denied defendant’s motions to quash and supplements insofar
as they were based upon a violation of article 701.
In addition to the limitations provided for by article 701, LSA-
C.Cr.P. art. 578(2) provides for a two-year time limitation (from the
date of institution of the prosecution) within which the trial of a
defendant accused of a non-capital felony must be commenced. The
defendant was charged on March 27, 2003, for an offense committed
on February 4, 2002. Prior to the defendant’s August 28, 2003 nolo
contendere plea, the trial court set the defendant’s trial for September
of 2003, well within the time limitation. Thus, to the extent that
defendant’s motions were based on article 578(2), they were properly
denied by the trial court.
Defendant was incarcerated in May 2013. The bill of information was filed
October 24, 2013. While it is true that La.Code Crim.P. art. 701(B)(1)(a) provides
that an indictment or bill of information must be filed within sixty days of the
defendant’s arrest when he is in custody, the remedy for the failure to do so is
being released from custody or from the bail obligation. However, in the instant
case, once the bill of information was filed in October, that remedy was no longer
available. Additionally, once the bill of information was filed on October 23,
2013, the State had two years from the date of the institution of the prosecution to
commence trial. Institution of prosecution commences upon the filing of an
indictment or a bill of information. State v. Cotton, 01-1781 (La.App. 1 Cir.
5/10/02), 818 So.2d 968, writ denied, 02-1476 (La. 12/13/02), 831 So.2d 982.
Accordingly, the State had until October 2015 to bring Defendant to trial. La.Code
Crim.P. art. 578(2). Defendant’s trial commenced in August 2015, two months
before the deadline to commence trial.
While Defendant claims his right to a speedy trial was violated, he did not
file a motion for a speedy trial pursuant to La.Code Crim.P. art. 701(D). Thus,
there is no merit to this assignment of error.
23
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
Defendant asserts that “[i]n cases involving a defendant’s claim that he
wasn’t the person who committed the crime[,] [Jackson v. Virginia], the [S]tate is
required to negate any reasonable probability of misidentification[.]” Defendant
cites State v. Robinson, 02-530 (La.App. 5 Cir. 10/29/02), 831 So.2d 460, writ
denied, 03-100 (La. 2/13/04), 867 So.2d 676, to support his position that he was
not the person who sold the crack cocaine to Ms. Howard.
However, this is not a matter of a “misidentification.” In Robinson, the
witness testified that the defendant was the man who approached her vehicle,
offered to sell her drugs, took her money, and gave her the drugs. She had
described his clothing and included that fact that he had missing teeth in the front
of his mouth. The defendant, however, alleged on appeal that the State had failed
to negate the reasonable probability that she misidentified him. The fifth circuit
determined that the defendant was not misidentified.
In the instant case, while it was true that the person to whom he sold the
drugs did not testify at trial or otherwise identify Defendant as “Sunny,” this was
not a matter of a witness identifying one person when there was the possibility it
was some other person whom the witness saw. The issue of Defendant’s identity
was resolved by circumstantial evidence wherein it was determined that the
evidence was sufficient, including the element of who sold Ms. Howard the drug.
The jury heard the evidence and arguments and concluded that Defendant was the
one who possessed the crack cocaine and sold the drug to Ms. Howard. There is
no merit to this assignment of error.
PRO SE ASSIGNMENT OF ERROR NUMBER FOUR
Defendant also filed a Motion to Suppress Evidence 703 wherein he asserted
that the evidence should be suppressed because the search warrant was invalid.
24
Following the admission of the search warrant and affidavit into evidence, and the
testimony of Detective Andrus, the trial court denied the motion to suppress the
evidence.
Defendant argues that the search warrant was invalid because it lacked
sufficient information to establish probable cause. Detective Andrus stated in his
affidavit:
On 4-30-2013[,] your Affiant[,] Detective Andrus[,] arrested Ms.
Belinda Mills[4] with approx [sic] three grams of crack cocaine.
During a post arrest interview[,] Ms. Mills told Detective Andrus she
would like to corporate [sic] with officers. Ms. Mills then rode with
Detective Andrus, Cappel, Belgard, and Parker to Mason St. in
Alexandria where she identified the residence believed to be located at
2108 Mason St. as where she purchased her crack cocaine from. Ms.
Mills told Detective Andrus she purchased this crack cocaine from
this residence within twenty four hours of pointing the residence out.
Ms. Mill[s] also told Detective Andrus she knows the B/M who sold
her the crack cocaine from this residence as “Sunny”.
The proper standard of review for examining mixed questions of fact and
law on a motion to suppress is abuse of discretion. In State v. Everett, 11-1311, pp.
2-3 (La.App. 3 Cir. 5/9/12), 89 So.3d 463, 466, this court quoted State v.
Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ
denied, 99-33 (La. 5/28/99), 743 So.2d 658, as follows:
When a trial court rules on a defendant’s motion to
suppress, the appellate court must look at the totality of
the evidence presented at the hearing on the motion to
suppress. The appellate court should not overturn a trial
court’s ruling, unless the trial court’s conclusions are not
supported by the evidence, or there exists an internal
inconsistency in the testimony of the witnesses, or there
was a palpable or obvious abuse of discretion.
Furthermore, the defendant bears the burden of proving the inadmissibility of
evidence seized with a warrant. La.Code Crim.P. art. 703(D). In State v. Friday,
10-2309, pp. 5-6 (La.App. 1 Cir. 6/17/11), 73 So.3d 913, 920, writ denied, 11-1456
4
“Ms. Belinda Mills” and “Ms. Mills” referred to in this affidavit are the same person as
Ms. Belinda Mills Howard referred to throughout this opinion.
25
(La. 4/20/12), 85 So.3d 1258, the first circuit discussed the factors pertinent for
reviewing claims that a search warrant application failed to state probable cause, as
follows:
Article 1, § 5 of the Louisiana Constitution requires that a
search warrant issue only upon an affidavit establishing probable
cause to the satisfaction of an impartial magistrate. See also La.Code
Crim. P. art. 162. Probable cause exists when the facts and
circumstances within the affiant’s knowledge and of which he has
reasonably trustworthy information are sufficient to support a
reasonable belief that an offense has been committed and that
evidence or contraband may be found at the place to be searched.
State v. Johnson, 408 So.2d 1280, 1283 (La.1982). The facts
establishing the existence of probable cause for the warrant must be
contained within the four corners of the affidavit. State v. Duncan,
420 So.2d 1105, 1108 (La.1982); State v. Green, 2002-1022, pp. 6-7
(La.12/4/02), 831 So.2d 962, 968.
An issuing magistrate must make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit,
there is a “fair probability” that evidence of a crime will be found in a
particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,
2332, 76 L.Ed.2d 527 (1983); State v. Byrd, 568 So.2d 554, 559
(La.1990). The process of determining probable cause for the
issuance of a search warrant does not involve certainties or proof
beyond a reasonable doubt, or even a prima facie showing, but rather
involves probabilities of human behavior, as understood by persons
trained in law enforcement and as based on the totality of
circumstances. The process simply requires that enough information
be presented to the issuing magistrate to enable him to determine that
the charges are not capricious and are sufficiently supported to justify
bringing into play the further steps of the criminal justice system. See
State v. Rodrigue, 437 So.2d 830, 832-33 (La.1983).
The review of a magistrate’s determination of probable cause
prior to issuing a warrant is entitled to significant deference by
reviewing courts. “[A]fter-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de novo
review.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331. Further, because
of “the preference to be accorded to warrants,” marginal cases should
be resolved in favor of a finding that the issuing magistrate’s
judgment was reasonable. United States v. Ventresca, 380 U.S. 102,
109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
In State v. Cortes, 11-794, pp. 13-14 (La.App. 3 Cir. 2/1/12), 84 So.3d 733,
742, this court quoted State v. Williams, 04-1309, pp. 21-22 (La.App. 5 Cir.
4/26/05), 902 So.2d 485, 499, writs denied, 05-1640 (La. 2/3/06), 922 So.2d 1173,
26
924 So.2d 144, as follows: “‘In determining whether the ruling on a motion to
suppress was correct, the court is not limited to the evidence adduced at the hearing
on the motion, but may consider all pertinent evidence given at the trial of the
case.’”
We find that Detective Andrus’ affidavit was sufficient for the judge signing
the warrant to determine there was a “fair probability” that illegal drugs were sold
from the stated location. Detective Andrus testified at the suppression hearing, and
his narrative was the same as the information that was given to the judge signing
the warrant. While at trial, there was no identification of Defendant as “Sunny”
(the one who Ms. Howard reportedly said sold her the drug), the judge was given a
name, a location, and the items sought; and, the items sought were located at that
location.
Moreover, in brief, Defendant points out that Ms. Howard’s reliability was
not established in the affidavit, and that at trial, it was brought out that Ms. Howard
had a lengthy criminal history, therein casting doubt on her reliability. At trial,
physical evidence established that the pill bottle containing the hydrocodone found
next to the cocaine in Defendant’s bedroom was prescribed to Ms. Howard,
evidencing she was obviously in that house at some point.
We find the relevant information given to the judge who issued the search
warrant was sufficient, and the trial court did not abuse its discretion when it ruled
that the search warrant was valid. There is no merit to this assignment of error.
PRO SE ASSIGNMENT OF ERROR NUMBER FIVE
In this assignment of error, Defendant argues prosecutorial misconduct.
Defendant asserts that Detective Andrus lied and that the State encouraged him to
lie. He asserts that the judge who signed the search warrant “abandoned his neutral
and detached role[.]” He asserts that he was discriminated against because he is
27
black, and the police are white. He asserts that “the prosecutor improperly
introduce[d] illegal[] evidence, assassinated the character of the accuse[d] and the
prosecution made inflammatory statements before and during closing arguments
calling the accuse[d] a ‘nigger’ in front of the jury and no one did anything to stop
this assassination by prosecution[.]”
As noted above, Defendant filed a Motion for Mistrial following the
conviction, wherein he claimed that the prosecutor asked the jury, “[A]re you
going to believe a nigger in jail[?]” At the habitual offender hearing, Defendant
again raised this allegation. The trial judge noted that she did not hear that
statement, and, if she had, she would have granted a mistrial on the spot. Defense
counsel stated that he may have missed hearing the prosecutor make such a remark
and, for that reason, did not object.
At the hearing on the mistrial motion, the trial court denied the motion,
stating emphatically that she heard no such statement during closing argument and
that defense counsel must not have heard it because he did not object; therefore,
the issue was not preserved on appeal. Louisiana Code of Criminal Procedure
Article 841, in pertinent part, provides that “[a]n irregularity or error cannot be
availed of after verdict unless it was objected to at the time of occurrence.” We
find that the trial court was correct in its ruling. Finally, a review of the transcript
of the State’s closing argument shows there was no such remark made, and
Defendant makes no reference in his brief to where in the record this alleged
statement was made.
As for the remaining allegations in Defendant’s brief of wrongdoing by the
State, the police, and the trial court, the accusations are conclusory,
unsubstantiated, not found in the record, and thus, neither establish nor warrant
relief.
28
DISPOSITION
We affirm Defendant’s convictions and sentences, but amend Defendant’s
sentence for possession with the intent to distribute cocaine to require only the first
two years to be served without the benefit of parole. We instruct the trial court to
make an entry in the court minutes reflecting this change. Additionally, we direct
the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8
by sending appropriate written notice to him within fifteen days of the rendition of
this opinion and to file written proof in the record that said notice was given.
CONVICTIONS AFFIRMED.
SENTENCES AFFIRMED AS AMENDED,
WITH INSTRUCTIONS.
29