Petition — Lewis v. Louisiana State Penitentiary

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IN THE

SUPREME COURT OF THE UNITED STATES RECEIVED

APR 3 0 1980

OCTOBER TERM, 198

OFFICE OF THE CLERK

SUPREME COURT, US.

NO. 79-6514

SAWYER LEWIS,

Petitioner

THE LOUISIANA STATE PENITENTIARY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JACQUES F, BEZOU

GARON, BRENER & McNEELY

1304 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

Attorneys for Petitioner

Garnet

>! pay

TABLE OF CONTENTS

Opinions Below,....cccccccccccces cvecccccccccce Lb

Jurisdiction. .cccccccces Cobecterssaeensodscsone 18

Questions Presented,........+.6. thtescmibacee -

Constitutional Provisions Involved......... coe 2

Statement of the Case........... eccccccrcceces &

Reasons for Granting the Writ............+++0. 6

GRR DORGS 3.00 000665606 00500040r bb es eos een Oe

GOGCEELeate OF SERVER: oc cccticcvdccccerss sstee Be

Appendix | _— *enerree eoeeneenv eve een eve ewaea een aaa eaeaaneananeaeee

State of Louisiana v. Sawyer Lewis,

No. 257-998, Section "A", Criminal

District Court for the Parish of

Orleans, Transcript of Writ of

Habeas Corpus Hearing on August

16th, 1977, before the Honorable

Ceeraee By Willtwe cs Fecacawecedh ct dese nes - &

Aprendix B

Sawyer Lewis v. Louisiana State Peniten-

tiary, In the United States Court of

Appeals for the Fifth Circuit, No. 79-

1646, Opinion of the United States Court

of Appeals for tte Fifth Circuit, Febru-

GED Ry Bec icsicksekkosedacsecetotetiesn OF

Appendix C

Sawyer Lewis v. Louisiana State Peniten-

tiary, In the United States District

Court for the Eastern District of Louisi-

ana, Civil Action No. 77-3577, Section "E",

Judgement dated December 22, 1978, signed

by the Honorable Fred J, Cassibry.........70

Appendix D

Sawyer Lewis v. Louisiana State Peniten-

tiary, In the United States District

Court for the Eastern District of Louisi-

ana, Civil Action No. 77-3577, Section "E",

Report and Recommendation, signed by Veroni-

ca D. Wicker, United States Magistrate,

dated November 30, 1978.....ccccccccccecse th

Appendix E

State of Louisiana v, Sawyer Lewis, Supreme

Court of Louisiana, No. 60,817, Denial of

the Application for Writs of Certiorari,

Mandamus and Prohibition, dated November

DU PUURUEGSeeEebeb eb scdcccbésecdecececese T0

Appendix F

in State of Louisiana v, Sawyer Lewis, No. 257-

CRe rie 's 998, Section "A", Criminal District Court

rr for the Parish of Orleans, Transcript of

6% Pye the trial on the merits heard on February

\ 2 (es a 79

TABLE OF CITATIONS

Cases: Page

Avery v. Alabama, 308 U.S. 444 (1940)............ 7

Coplon v, United States, 191 F.2d 740

(3.6, Cir . 1950) eee eeweweaeeeeaeaneeaeeanee eee eev eee eaeeeee 8

Fitzgerald v. Estelle, 505 F. 2d 1334

(5th Cir, 1975) eoeeew ew ev eaeaeaeaeaeaenee eeeneewev eee eaeaeeaneeaeae 6, 7

Gideon v, Wainwright, 372 U.S. 335 (1963)........ 7

Government of the Canal Zone v. C, 479 F.2d

12953 (5th Cae. PPtbewbehusithed webs 64060600406 9

Howard v, Henderson, 519 F.2d 1176

(5th Cir, TVET Neha Wend pidccldeedueties ene eeeeneeaee 7

Johnson v. Zerbst, 304 U.S. 458 CReeel be ceduacs oe F

Jones v. Cunningham, 313 F, 2d 347

(4th Cir. 2 eeneeeeee eoeeneevneaevneeaeaeenee sateen

Katz v. United States, 389 U.S, 347,

(88 Se Ct. 507 a oh eee

King v. Beto, 305 F. Supp. 636 (S.D. Tx. 1969)... 8

McMann v. Richardson, 397 U.S. 759(1970)......... 7

Mapp v. Ohio, 361 U.S. 643 (1961)......... Pr

Powell v. Alabama, 287 U.S. 45 (1932)...... a

Reece v. Georgia, 350 U.S. 85 Caneel bk be ede c‘e ose #

Starnz v. McGuire, 512 F, 2d 918 (D.C, Ste since o

State v, Lawson, 256 La. 471, 236 So. 2d 804

(1970).... owe eee eaevneaeaee ereeeveaeaeeveeaeeeeeee vee ere ee

State v. Womack, 283 So, 2d 708 (La. >) Se |

United States v, Childs, 571 F. 2d 315

(5th Cir. SONU den th webs cehisecviceus eoeneeae eee 7

United States v. DeCoster, 487 F. 2d 1197

(D.C, Cir, PoP Vedas enebeNekdedeiv de snededn ad 9

United States v, Edwards, 488 F. 2d 1154

(5th Cir. SVE sckGnns whee ereneee eeneeenee Se Peres |

Ybarra v. Illinois, 100 S. Ct. 338 C97 EF cosecens 6

United States Constitution:

Fourth Psa nGake hei: 6d aean weed é 6, 12

SERE GPM cccecicccceccadoee ‘eevioccne Ze Oy Fy

Statutes Cited:

Louisiana Code of Criminal Procedure,

SEC LFSS coceccvcnsvecesses eecccccseccece 12

28 Ue. GC, Sec. BERD + é0% sd ba0eneesanz l

-iv-

RECEIVED

APR 30 1980

OFFiCe OF THE CLERK

SUPREME COURT, U.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 198

~. %9-6514

SAWYER LEWIS,

Petitioner

THE LOUISIANA STATE PENITENTIARY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Sawyer Lewis, respectfully prays that a

writ of certiorari issue to review the opinion of the

United States Court of Appeals for the Fifth Circuit

entered in this proceeding on February 4, 1980.

OPINIONS BELOW

The opinions of the Court of Appeals, the Federal

District Court, and the Louisiana Supreme Court are not

reported and appear in the Appendix hereto. On August 16,

1977, Appellant's Writ of Habeas Corpus was denied before

the trial judge, but no written opinion was issued by him.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on February 4, 1980, and this petition

for certiorari was filed by May 4, 1980. This Court's

jurisdiction is invoked under 28 U.S.C, § 1254(1).

QUESTION PRESENTED

1. Whether a defendant is denied a substantial

defense where his retained counsel failed to file a

motion to suppress illegally obtained evidence or to

object timely to the introduction of illegally obtained

evidence, which was the only evidence presented against

the defendant that resulted in a life sentence without

benefit of parole? Said another way, is a defendant de-

prived of any constitutional right under the Sixth and

Fourteenth Amendments when his lawyer fails to use the

only defense available to him which not only results in

life imprisonment without parole, but also forfeits de-

fendant's right to appeal the issue of the admissibility

of that damning evidence?

CONSTITUTIONAL PROVISIONS INVOLVED

1, The Sixth Amendment of the United States Consti-

tution provides in pertinent part that:

"In all criminal prosecutions, the accused

shall. . . have the Assistance of Counsel

for his defense,"

2. The Fourteenth Amendment of the United States

Constitution provides in pertinent part that:

", . . mor shall any State deprive any

person of life, liberty, or property,

without due process of law. . ."

STATEMENT OF THE CASE

1, On December 29, 1976, petitioner was patronizing

the Streamline Tavern at 3235 Fern Street, New Orleans,

Louisiana. At approximately the same time, officers of

the New Orleans Police Department's Felony Action Squad

were on their way to the said lounge for the purpose of

ascertaining whether one Lincoln Lewis (no relation to

the petitioner) was present therein, They had no search

warrant.

The arresting officers at the trial of this

matter stated that as they approached the tavern in

their unmarked vehicle, one of several black males

"loitering" in front of the tavern "hurriedly" entered

the lounge. At that point, the officers exited their

vehicle and pursued this individual. (It is to be

noted that petitioner disputes this testimony and con-

tends that he was sitting at the bar and not outside of

it at the time the officers arrived.)

Once inside the location, the officers testified

that the defendant, Sawyer Lewis, who was allegedly hold-

ing a brown leather-type jacket in his hand, shoved some-

thing into the coat pocket, dropped the jacket into a

booth, and walked away. At that point, one of the offi-

cers, John F, Marie, approached the booth, picked up the

jacket, and instituted a search of its pockeis whereupon

he allegedly discovered a quantity of heroin in tinfoil

packets which were additionally concealed in rubber bal-

loons, Officer Marie testified that at the time of the

search, one of the rubber balloons was ripped at its

bottom thereby exposing a quantity of the heroin. The

petitioner was then arrested,

2. On January 6, 1977, a true bill was returned by

the Orleans Parish Grand Jury in a matter entitled,

"State of Louisiana v, Sawyer Lewis, No. 257-998," in-

dicting the said Sawyer Lewis for an alleged violation

of La, Revised Statute 40:966, Possession of heroin with

the intention to distribute. On January 11, 1977, the

Petitioner was arraigned and on February 28, 1977, he

was found guilty as charged by jury verdict. On March

31, 1977, Mr. Lewis was sentenced by the trial court

to life imprisonment without the benefit of parole. At

the trial of this case, petitioner was represented by

one George E, Mouledeaux, Esq., retained counsel, who

having interviewed Mr. Lewis on at least one occasion

and having had access to the transcript of a preliminary

examination failed to file a motion to suppress the evi-

dence, On or about May 5, 1977, petitioner dismissed

the said George E. Mouledeaux and retained undersigned

counsel who then filed a petition for writ of habeas

corpus in the Criminal District Court for the Parish of

Orleans, On August 16, 1977, petitioner's writ of habeas

corpus was denied before the trial judge, the Honorable

Charles R, Ward. A petition for writs of certiorari,

mandamus and prohibition was filed with the Supreme

Court of Louisiana on October 12, 1977, which writ was

denied on November 23, 1977. (Two of the seven justices’

opined that the writ should have been granted, Justice

Dennis stated that the evidence was illegally seized and

that the writ should have been granted.) On December 1,

1977, a petition for writ of habeas corpus was filed in

the Federal District Court, bearing the No. 77-3577,

Section "E,"' which was also denied by the Honorable

Fred J, Cassibry on December 26, 1978. A notice of appeal

was filed by the petitioner on January 3, 1979, and the

Honorable Fred J, Cassibry signed an order certifying

this record as having probable cause for an appeal pursuant

to Rule 22(b) of the Federal Rules of Appellate Procedure,

On February 4, 1980, the Court of Appeals for the Fifth

Circuit affirmed Judge Cassibry's decision precipitating

this writ,

3. At the hearing on petitioner's writ of habeas

corpus before the trial court, Mr. Mouledeaux, appellant's

former retained counsel, testified in the following re-

gards:

A. That the arresting officers did not have

probable cause to follow the appellant into the tavern.

(The transcript of that hearing is attached hereto as

Appendix A. p. 15, line 27; p. 16, lines 1-3, Appendix

A.)

B. That the defendant had a right to bring a

motion to suppress. (Appendix A, p. 18, lines 21-25.)

C. That there was sufficient time for a

motion to suppress to be prosecuted. (Appendix A, p. 6,

lines 3-6.)

D. That the defendant would not lave been pre-

judiced in any way had the motion to suppress been pur-

sued. (Appendix A, p. 19, Lines 10-15.)

E. That he, Mr, Mouledeaux, did not object to

the introduction of the evidence on the grounds that it

resulted from an illegal search although he had prepared

such a motion, (Appendix A, p. 6, lines 23-27.)

F, That a motion to suppress was not filed be-

cause he felt that such would be a breach of his profes-

sional responsibility (Appendix A, p. 19, lines 21-27;

p. 20, lines 1-6); evidently because, although the arrest-

ing officers had no probable cause to follow the petitioner

into the bar, they did have a right to enter it and, once

inside, had a right to search any coat found on the premises,

(Appendix A, p. 15, line 27; p, 16, lines 1-3, p. 16,

lines 15-27; p, 17, lines 1-6.)

REASONS FOR GRANTING THE WRIT

The issue which is presented for review is one

which is unique and is ripe for determination by the

Court, Failure to grant review here would deprive a

man of a lifetime of liberty without parole because

of the gross incompetence of his retained counsel, a

result that has no place in a civilized culture, The

sole evidence, heroin, was seized from appellant's

jacket blatantly violative of the Fourth and Fourteen-

the Amendments to the United States Constitution,

Ybarra v. Illinois, 100 Sup. Ct, 338(1979), but can

the Sixth Amendment be utilized to correct this gross

error of retained counsel? We feel that it must.

The standard for judging the effectiveness of re-

tained counsel is set forth in Fitzgerald v. Estelle,

505 F.2d 1334 (Sth Cir. 1975) (en banc) :

"In sum, whenever the actions of retained coun-

sel operate to deprive the trial of fundamental

fairness then the Fourteenth Amendment due pro-

cess had been violated notwithstanding any kind

of specific involvement by a particular state

official. If a retained counsel's actions do

not sap the proceedings' fundamental fairness,

but are challenged as less than reasonably ef-

fective in violation of the Sixth Amendment ,

State involvement through actual or construc-

tive awareness of the error by the judge, prose-

cutor, or other responsible official who could

have corrected it, must be shown,"

It follows then that to establish a denial of the

Sixth Amendment right to counsel, where defendant has

retained counsel, a showing of either that retained

counsel's performance was ''so Srossly deficient as to

render the proceedings fundamental unfair" or that re-

tained counsel's incompetence is so apparent that a

reasonably attentive official of the State should have

been aware of it and could have corrected it, must be

made, Fiztgerald v. Estelk, supra; Howard v. Henderson,

519 F.2d 1176 (Sth Cir. 1975); United States v. Childs,

571 F.2d 315 (Sth Cir. 1978).

And the Sixth Amendment to the Constitution of the

United States, made applicable to the states through the

due process clause of the Fourteenth Amendment, guarantees

to every defendant in a criminal trial the assistance of

counsel for his defense. Gideon v, Wainwright, 372 U.S.

335 (1963). This is an absolute right, requiring the

strict protection of the courts, and any conviction in a

case wherein a criminal defendant has not enjoyed this

fundamental right is void. Johnson v. Zerbst, 304 :U.S,

458 (1938).

Recognition of the inviolable constiticional right

of a criminal defendant to the effective assistance of

counsel, stems from the decision in the case of Powell v.

Alabama, 287 U.S, 45 (1932), wherein the Court spoke of

giving "effective aid in the preparation and trial of

the case,"" Id, at 71, Like the right to counsel itself,

there is little doubt but that the right to "effective

representation" by counsel is now firmly woven into our

constitutional fabric, See, e.g., McMann v. Richardson,

397 U.S, 759 (1970); Reece v. Georgia, 350 U.S, 85 (1955);

Avery v. Alabama, 308 U.S. 444 (1940). Thus, it has been

repeatedly held that a defendant may not legaliy be found

guilty except at a trial in which his constitutional rights

are scrupulous!y observed and, consequently, no conviction

can stand if the accused is denied the effective assis-

tance of counsel, See, e.g., ing v. Beto, 305 F. Supp.

636 (S.D. Tx. 1969); and Coplon v. United States, 191 F.

2d 740 (D.C. Cir. 1950).

Retained trial counsel's representation in this

matter fell well below the standard imposed upon retained

counsel by Fitzgerald, supra and its progeny as the record

clearly reflects:

1, Although counsel was retained over one month

prior to trial, he conferred with his client on but one

occasion, which consultation, because of its brevity, was

clearly inappropriate for the purpose of conducting a

legal and factual investigation, particularly in light of

the circumstances surrounding the seizure of the narcotic

substance of which Appellant was alleged to have been in

possession,

2. Although the arresting officers lacked the prob-

able cause necessary to institute a search of Appellant's

personal property, trial counsel, nevertheless, failed to

file and pursue a motion to Suppress the illegally seized

evidence,

3. By failing to pursue a motion to suppress, and

by failing to pronerly object to the introduction of the

evidence, Appellant was denied a substantial defense to

the charge, This is particularly true when it is remen-

bered that the state's entire case against the Appellant,

and the only incriminating evidence introduced therein,

arose from the unauthorized and illegal seizure.

4. Trial counsel's failure to permit the Appellant

to testify in his own behalf served to prejudice Sawyer

Lewis and constituted an incompetent and negligent deci-

sion, especially since other defense witnesses were not

called and Appellant could not have been prejudiced

thereby,

5. Trial counsel's conduct in the trial of this

case was perfunctory at best. As the record evidences,

counsel failed to vigorously cross-examine adverse state

witnesses; failed to object to numerous leading questions;

and, failed to present any affirmative matter on behalf of

the defense.

There is little doubt but that defense counsel is duty

bound to confer with his client without delay and as often

as necessary so as to elicit matters of defense, or to as-

certain those potential defenses which may be available.

See, Starnz v. McGuire, 512 F.2d 918 (D.C. 1974); U.S, v.

DeCoster, 487 F.2d 1197 (D.C. Cir. 1973). Counsel must,

therefore, promptly advise his client of his rights and

take all actions necessary to preserve such, insofar as

certain rights can only be protected by prompt legal ac-

tion. In this regard, and with particular reference to

the instant case, counsel must be prepared, where appro-

priate, to make motions for the suppression of illegally

seized evidence. See, U. S. v. DeCoster, supra; Govern-

ment of the Canal Zone v. C, 479 F.2d 1253 (Sth Cir. 1973.)

In the instant case, trial counsel conferred with Ap-

pellant only once prior to the day of trial, Testimony,

derived from the Habeas Corpus proceeding, indicates that

Mr. Mouledoux spoke with the Appellant on one occasion,

over one month prior to trial, for a period of about twenty

minutes; and returned the next day only to have Mr. Lewis

execute @ Power of Attorney so that a retainer might be

withdrawn from the Appellant's bank account. Thereafter,

counsel did not confer with his client until the morning

of the trial at which time Mr. Mouledoux informed the

Appellant that Appellant would not be permitted to take

the stand in his own defense.

Based on the record herein, it is clear that the scant

attentions paid by Mr. Mouledoux to the defendant's pending

criminal prosecution denied Appellant a substantial defense

to the State's charge, It is to be remembered thbe the

State's entire case against the Appellant revolved about

the seizure of the narcotic substance. Notwithstanding this

slender thread upon which the conviction of Sawyer Lewis

might be based, Mr. Mouledoux either through neglect or un-

informed reasoning failed to even attempt to have the evi-

dence excluded, That the defense of an unconstitutional

seizure was not raised by trial counsel, clearly suggests that

the brevity of consultation and the resultant lack of prepara-

tion, were not sufficient to prepare a vieble defense to the

charge, There can be no other explanation for this inexcus-

able failure.

As is evident. the basis of Appellant's claim of inef-

fective representation rests upon defense counsel's failure

to pursue the most logical and simple defense available --

that being suppression of the evidence illegally seized.

This was not an error which can be easily ignored for while

counsel for @ defendant has no duty to fabricate defense,

or to put forth defenses he believes to be of little worth,

he does have a duty to determine which ones do exist and to

act thereupon in full pursuit. Jones v. Cunningham, 313 F,

2d 347 (4th Cir, 1963).

-10-

In the present case, in evaluating whether Mr. Moule-

doux erred in failing to file and pursue a motion to sup-

press, an appraisal must be made of the facts known, avail-

able, or with minimal diligence, accessible to defense coun-

sel; and, a determination made as to whether those facts

raised any reasonable doubt as to whether a defense was af-

fordable, United States v. Edwards, 488 F.2d 1154 (5th Cir.

1974), While the issue of whether the search and seizure

of Appellant's personal property is not wholly before this

Honorable Court, Appellant's claim of ineffective trial

representation can only be adjudged in light of that issue

and for that reason, the question of whet..er the seizure

herein was constitutional must be considered in part.

It is clear that the arresting officers in this case

lacked probable cause to follow the Appellant into the

tavern, Even Appellant's trial counsel would agree with

this, (Appendix A, p. 15, line 27; p. 16, lines 1-3.)

Mr. Mouledoux contends, however, that the officers did

have such probable cause to search the coat belonging to

the Appellant because it was abandoned, Whether through

ignorance or neglect, however, this incorrect appreciation

of the law served to condemn Sawyer Lewis and deprive him

of any possible defenses.

In the case of State v. Lawson, 256 La. 471, 236 So.2d

804 (1970), the Louisiana Supreme Court held that if the

police do not have the right to make an investigatory stop,

property abandoned or otherwise disposed of as a result

thereof cannot be legally seized. Such is precisely, how-

ever, what occurred in this case where police officers

failed to even confront the defendant until such time as a

thorough search had been made of his personal effects.

eltan

As this Court well knows, subject to certain excep -

tions, searches conducted outside the judicial process

are per se unreasonable under the Fourth Amendment.

Katz v. United States, 389 U.S. 347, 88 Sup. Ct. 507

(1967). In the instant case, the search of the Appellant's

coat wes conducted without a .-rrant. Moreover, not one of

the recognized exceptions to warrantless searches is to be

found herein. Thus, the search of Appellant's personal be-

longings prior to his arrest constituted an unreasonable

and illegal search and seizure. Such evidence, pursuant to

the exclusionary rule enunctated in Mapp v. Ohio, 361 U.S.

643 (1961), should not have been introduced in this case.

It is to be remembered that this was not a prosecution

where the State was able to produce an overwhelming amount

of evidence as to the alleged guilt of the Appellant,

Rather, the entire conviction herein rested solely on the

testimony of the arresting officers and the introduction

into e ‘dence of the narcotic substance al’egedly discovered

in Appellant's pocket, Notwithstanding this fact, no objec-

tion to the evidence on Fourth Amendment grounds was made.

This is true even though Mr. Mouledoux knew that where a

tangible object is sought to be excluded from evidence be-

cause of an unconstitutional search and seizure, the de-

fendant must timely file a motion to suppress evidence or

be deemed to have waived the objection to its admission

based on an infirmity in the search or seizure. See, State

v. Womack, 283 So.2d 708 (La. 1973); La. C.Cr.P., Art. 703,

What is crucial and operative in this case, is the

fact that counsel's failure to Suppress the evidence was

So egregious as to render the verdict of guilty inevitable,

This is not a situation where trial tactics dictated an

attorney's decision not to proceed upon or advance a

particular matter; in fact, the question was not even

one of tactics or professional judgment. Rather, trial

counsel was faced with the situation where a motion to

suppress was the only available vehicle which could be

employed in order to preserve the rights of the defen-

dant. To have failed in this regard, denied Sawyer Lewis

a substantial defense and rendered the verdict of guilty

inevitable,

Trial counsel's other failures in the defense of the

petitioner are minor as compared with his failure to pursue

the suppression of evidence. Of particular import, however,

was counsel's failure to put the defendant on the witness

stand so that he might testify in his own behalf. Once

again, it is to be remembered that the State's case against

the Appellant was based entirely on the illegal seizure,

Since counsel failed to pursue a Motion to Suppress, and

since he intended to advance the defense that the police

had planted the evidence in the Appellant's coat, it is

common-sensical to assume that he would permit the defendant

to testify in this regard. Nevertheless, counsel informed

Appellant tat he would not permit /opellant to take the

stand even though no other defense witnesses were available,

Once again, Sawyer Lewis' defense was laid bare.

CONCLUS ION

This case presents the opportunity for the United

States Supreme Court to espouse the critical but necessary

views of Chief Justice Burger about the incompetence of

American Trial Lawyers. They should no longer be coddled

o13$-

at the expense of the poor, the misinformed, the ignorant,

and the disinfranchised, It is inconceivable that under

the facts presented here that the evidence used against

Sawyer Lewis would not have been suppressed if not by

the trial judge, certainly by the Louisiana Supreme

Court in view of the decisions cited herein, But, retained

counsel's failure ts. act in a manner consistent with the

Sixth Amendment deprived this individual of literally the

rest of his life and such conduct is simply not acceptable

in our American system of justice. It is, therefore,

respectfully submitted that this desperate man's prayer

should be answered by the granting of the writ prayed for

herein,

Respectfully submitted,

‘a

JACQUE ; ZOU 5 One

ON, BRENER & McNEELY

1304/First National Bank of

—

ree Building

New Orleans, Lovisiana 70112

(504) 581-9322

Attorney for Petitioner

othe

79-6514 od

APR 30 1980

BPPEWALY len OFFICE OF THE CLERK

SUPREME COURT, U.S.

STATE OF LOUISIANA CRIMINAL DISTRICT COURT

VERSUS PARISH OF ORLEANS

SAWYER LEWIS SECTION "A", CASE 257-998)

Transcript of writ of habeas corpus

hearing heard August 16th, 1977, in the above

named and numbered matter, before the HONORABLE .

CHARLES R. WARD, Judge presiding.

APPEARANCES:

NICK F, NORTEA, JR., ESQ.

ASSISTANT DISTRICT ATTORNEY

REPRESENTING THE STATE OF LOUISIWA

JACQUES F, BEZOU, ESQ,

COUNSEL REPRESENTING THE DEFENDANT

REPORTED BY:

ELLIS M. GILL

OFFICIAL COURT REPORTER

a 2a

/ 6: PRECEDING PAGE WAS BLANK |

1 CONTENTS

| »EFENSE WITNESSES

| George E. Mouledoux

4 ||

5’ Sawyer J. Lewis

7\ STATE WITNESSES

8i| Sheila C. Myers

9 | Nick F. Noriea, Jr.

11 Robert J. 7ibilich

28 /7

EXAMINATION PAGE |

Direct, Mr. Bezou $ Al

Cross, Mr. Noriea 24

Direct, Mr. Bezou 25

Cross, Mr. Noriea 30

Direct, Mr. Norea 37

Direct, Mr. Noriea 40

Cross, Mr. Bezou 4?

Direct, The Court 43

Cross, Mr. Bezou 45

* ve

— ? -

MR.

duly sworn by the Minute Clerk, testified as

follows:

BY MR. BE7OU:

a FF 2 Ff &

BE7 OU:

Jacques F. Bezou on behalf of petitioner

Sawyer Lewis. And we are ready

to proceed at this time, If the

Court please, I would like to

call on cross examination

George E. Mouledoux,

GEORGE E. MOULEDOUX, who, having been

DIRECT EXAMINATION

Please state your full name for the record,

sir?

George E. Mouledoux,

What is your occupation?

Attorney at Law, -

And how long have you been so engaged?

Fourteen and a half years,

Are you a member of the Bar of the State

of Louisiana?

I am.

Are you familiar with Sawyer J. Lewis,

the gentleman sitting before us?

I am,

Did you represent him.in the matter entitled

number 257-998 A, State of Louis‘tana

: /&

o9ea

/8 nr

—————————————

i -a.

MR.

versus Sawyer Lewis?

I don't know if the number is correct, I

did represent him in a matter in this

Court entitled State of Louisiana

versus Sawyer J. Lewis.

Do you remember what the charge was, sir?

Yes, It was possession of narcotics with

intent to distribute,

You remember what narcotics was involved,

sir?

What's that, sir?

You remember what narcotics?

Heroin,

Now, at what stage of the proceedings did

you represent Sawyer Lewis, sir?

Before trial.

Did you represent him at the preliminary

examination?

No, I did not,

Were you appointed to represent Mr. Lewis?

Or, were you retained?

NORIEA:

I object to the relevancy.

THE COURT:

Overruled,

BY TE WITNESS:

Retained by Mr. Lewis to represent him.

whe

DIRECT EXAMINATION RESUMED BY MR. BE7ZOU:

Q Now,dii vou hive an opportunity to visit with

Mr. Lewis prior to the trial of

this matter?

A Yes, siz, & 266.

Q And where was that that you visited him,

sir?

A In the Parish Prison,

Q On how many occasions?

A I don't remember exactly. Two, three, four,

times.

Q You are sure about that? *

A Yes. Absolutely sure. Because that's my

standard procedure when I represent

some one to see them as many times

as necessary before a trial,

Q I see,

A Or before any proceedings are disposed of

or any plea is entered,

Q It's your testimony you did in fact represent

this gentleman before the trial

itself; is that right, sir?

A Before the case went to trial in this

Courtroom I represented Sawyer J,

Lewis.

Q Do you recall about how long before you

wert to trial that you were retained

eee

oF &£

to represent this man?

I can't be exactly specific,

Would it have been sufficient time to file

any motions if you deemed necessary?

Ateolutely,

Absolutely?

(Witness nods head in the affirmative, )

Now, did you have access to the transcript

of the preliminary examination?

I did,

Did you read the transcript of the preliminary

examination?

I did,

It's a fact, Mr. Mouledoux, that you filed

no pre-trial motions in this case?

Correct,

Are you aware that the penalty for possession

with intent to distribute heroin

was mandatory life?

T am, And I was,

You were at that time?

Correct,

It's a fact, Mr. Mouledoux, you did not file

a motion to suppress the evidence

in this case too; isn't that right,

sir?

I think the record will reflect chat,

al a

of, / 20

Would you explain to the Court why you did

not file any pre-trial motions in

the case, Mr. Mouledoux?

I did not think they were necessary since

Was it

That's

Now, you did read the preliminary examination,

Yes, I

Let me

the District Attorney had pretty well

opened its file to me.’ And, 1, after

having aiscussed the matter with my

client, I was satisfied that the

information that I had was sufficient

to proceed with the trial of this

matter,

your opinion, then, that after

reading the transcript of the

preliminary examination and after

conducting your investigation, which

I assumed included speaking with the

defendant, there was no possibility

and no duty on your part to file a

motion to suppress the evidence in

this case?

correct,

the transcript, you testified?

did,

refresh your memory, because I don't

think you would remember the transcript

nor anyone verbatim after this lapse of

oe .

time. .- ;

At page two of the transcript of the pre- i

liminary examination, the police

officer testified, John F. Marie,Jr.,

testified on direct examination.

By the Assistant Prosecutor,

Mr. Philipp, as follows: "At

approximately 6:30 P, M., my partner,

Officer Warren Keller, and I were

making a routine wanted check at the

Streamline Tavern, located at 3235

Fern Street, As we pulled up our

police car to that location, observed

the defendant along with several

other black males loitering in front

of the bar. At that time as I

alighted out of my police car and

began to approawh the bar, the

defendant broke and ran inside the

tavern, At that time, I immediately

followed the defendant into the

barroom and observed him run to the

right side of the barroom, reach in

and grab a coat which was in a booth,

place something inside the left front

coat pocket of that coat and discard

it into the booth and then walk away."

“3

Now,

on the basis of that portion of the

testimony, you feel that the police

had probable cause to detain this

man, to search him, to search his

coat?

I would have to decline to answer that

question at this time until I speak

to the Court and ask the Court

whether Iwill be permitted to

divulge confidential information

given to me by my client,

MR. BE7OU:

Excuse me, Your Honor, the question

THE WITNESS:

is not--the question at this

point is from the testimony I

read to him from the preliminary

examination. On the basis of

that, he will have an opportunity

at a later time, I'm sure, on

cross examination, to expand,

I want to know his answer to this

particular question now,

You're asking me--

THE COURT:

Just a minute. I feel Mr. Mouledoux

is correct. Because you're asking

anes =

him to answer a question without

giving you the basis upon which

he is going to predicate his

answer,

Now, Mr. Mouledoux has said that he

has made a decision based upon

information supplied to him by

the defendant, Now, if the

defendant wishes to waive his

right to exert the attorney-

client privilege, I will permit

Mr. Mouledoux to testify.

I want to interrogate the defendant

and determine whether or not he

is going to waive that privilege,

Otherwise, Mr. Mouledoux will not

be able to answer completely.

MR. MOULEDOUX:

Yes, Your Honor, I think the law is

to the effect if you bring an

action against your attorney or

doctor or anyone who has a

privilege, that the person, that

the privilege is then destroyed

when the witness has testified,

MR. BE7OU:

The poit of this, Your Honor, is that |

at On

re 3e

I'm going to get into the other

considerations. 4nd I am going

to ask him specifically what

Mr. Lewis told him about the

case at a later time, I'm

concerned now with bringing this

matter to the Court and what I

consider a logical order. That

is to first of all go into the

trmscript of the preliminary

examination, And then I would go

into his conversations with

Mr. Lewis after that, I assure

you I will. And I think it will

just confuse the matter to bring

in any extraneous matter at this

time,

THE COURT:

I think you are correct that the

attorney-client privilege is

waived, But then Mr, Mouledoux's

answer would be based upon the

information received from the

defendant which he is not dis-

closing at this time. And based

upon the preliminary examination

of the transcript he felt it was

=i te

not prudent co file a motion

to suppress. It's going to

be a partial answer. Because

I would not know what he conversed

with the defendant about, what

his answers were.

Now, if you wish to go into it piece

meal, it would be in this vein,

I would permit it.

Mr. Mouledoux, can you answer in light

of the question and in light of

what the ruling would be?

MR. MOULEDOUX:

I would request the Court specifically

to ask Mr. Sawyer Lewis if he at

this time in spite of what the

law may be, that he specifically

state he waives the client-

attorney relationship.

Your Honor, anything I may say here

could be used against him at a

future trial,

THE COURT:

Out of abundance of precaution, would

you stand by the microphone,

(Mr. Lewis complies.)

Mr. Lewis, anyone who speaks with an

a aes

attorney in an attorney-client

relationship has a privilege,

The attorney is prohibited from

telling anyone what the client

has divulged to him in his

confidential relationship. This

means you have a privilege of

your communication to Mr. Mouledoux

when he represented you that you

would be privileged so that he

may not testify or divulge to

anyone what you have told him

without your consent.

The question, now, is: Do you give

BY MR. SAWYER J,

Yes,

BY THE COURT:

Mr. Mouledoux consent to divulge

what you told to him during the

course of his representation to

you for these charges to the

Court or anyone else?

LEWIS:

sir.

You understand, now, that you aré

waiving that privilep of

confidentiality that you once had?

Now Mr. Mouledoux may divulge to

anyone what you have previously

-13<

49 | 35

i} told him in confidence?

21 wr . BEZOU:

| Excuse me, Your Honor, I think the

‘j law has a privileged way of a

4 purpose of acting when hearsay

s| is involved,

7\ THE CouRT:

e | Well, with regard to this case, but

8 not regard to any other case,

10 In regard to the charge against you,

1 meaning possession with intent

12 to distribute a controlled

13 dangerous substance, heroin, Do

14 you understand this, now?

15 BY MR. SAWYER J. LEWIS:

Yes, sir,

17 BY THE COURT:

18 Do you consent to have Mr. Mouledoux

19 divulge to the Court and anyone

we 20 else what you told him at the

21 time he represented you?

23 BY MR. SAWYER J. LEWIS:

23 Yes, sir,

24 THE COURT:

25 I feel that's sufficient. Answer the

26 question,

27 BY THE WITNESS:

«fio

1! A On the basis of the--

2 || DIRECT EXAMINATION RESUMED BY MR. BEZ70U:

a| Q On the basis of what I read to you from page

two of the transcript of the preliminary

examination. Based on that information

alone, do you feel that in your mind

/ the police had probable cause to

/ chase after Sawyer Lewis and search

8 / his coat?

‘10 | A Based on that alone, I would say they did

il not, On that alone,

12 Q I understand that, I refer you then to page

13 three,"I didn't see the man I was

14 looking for originally. I walked over

15 to the coat, knowing no one had been

16 around the coat otter than the defendant, |

17 quickly looked into the right front

18 pocket, figuring that the--" excuse me,

19 maybe we can cut this thing short,

\ 20 Would it be your opinion, then, on the basis

21 of the preliminary hearing of the

22 preliminary examination cold and the

23 basis of that alone that you would have

24 felt the police did not have probable

25 cause to apprehend that man or search

28 his coat?

27 A Well, I have to qualify my statement, They

;

didn't have probable cause to follow

* him into the place. That's as far as

- I will go on answering that question,

; Q Well, if they didn't have probable cause to

. | follow him in there, they didn't have

/ probable cause to do anything once they

7 | were in there.

e| A Maybe I must qualify it further. Maybe they

7 didn't have probable cause to follow |

™ him specifically in the place because

ie he was standing on the sidewalk and

= merely walked inside, But, that's--I

” will stand on that statement, But they |

on had a right to go inside the barroom,

15 Q Do you feel that they would have had probable |

as cause to search a man's coat in the |

7 detail they did? If you recall they |

18 went into the pockets very carefully.

18 You think they had probable cause to :

_ 20 do that wittmt them seeing a weapon or

21 || without the coat being on his person

a2 or without them being in danger of

as their lives?

24 A Since at the time they went into it he wasn't

a5 near it, I feel it was, that they had

26 a right to go through any coat on the

27 premises,

a7 /

a tis

; A I feel the police had right to search any

| abandoned or stored material when |

“i no cne was near it. These answers

| I'm giving you now are predicated

Zi also on what he told me later,

‘i Q Now, even though you felt that perhaps--well,

| you testified there was no reason to |

. follow him into the bar, It was your

” opinion that the police could have had

” probable cause to, could have md a |

” right to serch that abandoned, what

- you call abandoned jacket? Don't you

” feel as a lawyer you had a duty to |

” file a motion to suppress the evidence?

” 4 You're asking me to answer a questim before

u7 T hae bem able to give the reason why

- I didn't file the motion to suppress.

” Q I'm interested to know the reason you didn't

N 20 file the motion to suppress,

a A | Now, we're getting to it, Because Mr, Sawyer

23 Lewis advised me he didn't go near

23 that senks He didn't put anything in

24 that coat, Tmt the police walked over

35 | to the coat and they put something in

26 the pocket. Which was then a matter

27 for the jury to determine on the trial °

FLX

aite

+ > ?

THE COURT:

BY THE WITNESS:

THE COURT:

DIRECT EXAMINATION RES JMED BY MR. BE7OU:

THE COURT:

DIRECT EXAMINATION RESUMED BY MR, BE7OU:

I had a motion--

Was it your opinion, then, that, was it your

on the merits, Now, that--

ee a

Mr. Mouledoux, =e you aware that the present

constitution of the state of Louisiana

gives anyone a right to file a motion

to suppress-- |

I feel that's becoming argumentive now.

I don't feel that's a proper

question,

Just a minute,

Do ypu feel--oh, excuse me, Your Honor,

I feel you are getting into matters

which I must aswer myself rather

than Mr. Mouledoux.

Did Sawyer Lewis have standing to bring a

motion to suppress in your opinion?

You mean did he have a right under the law?

Yes. Did he have a right under the law?

Certainly he had the right,

abtwolute opinion that no Court of law

atte

could reasonably find that the police

did not have probable cause to search

that coat? |

A Cbviously. If I felt, definitely I would

have filed a motion to suppress that

I prepared and decided at the last

moment after speaking with Mr. Lewis

fain, there was no need to file a

motion to suppress,

Q In whk&h wy would Mr. Lewis had been prejudiced

if you filed a motion to suppress,

Mr. Mouledoux?

A I don't think he would have been prejudiced, |

Q At all? |

A I don't see were he would have been ae

Q You do know since you did not file the motion |

to suppress that issue was not Kebaewnl 4

for appeal? |

A That's correct, |

Q You knew that when you filed it?

A That's correct. I also know my professional

responsibilities are to present motions

to the Court not frivolous or not untrue

or not which are abviously misleading

to both the Court and defendant,

Q So you felt the final motion to suppress

in the case would be a breech of your

zs : . - 3

=i.

3¥

“we

a A I do. For the simple reason Mr. Lewis

Save me a completely different

Story than which came out in the

*| hearing, preliminary hearing, in

. the Magistrate Court,

7 Q Of course that isn't the issue, I don't

s | believe, Mr. Mouledoux,

9 | A I made a professional determination.

10) MR. NORIEA:

i Objection, He is arguing with the

12 witness, Your Honor,

13 DIRECT EXAMINATION BY MR, BE7ZOU:

14 Q Mr. Mouledoux, did you object to the

15 introduction of that evidence at trial?

16 A I did,

17 Q On what grounds, sir?

18 A I don't remember. The Court overruled. |

19 Q Did you specifically object to the introduction

i. 20 of the heroin on the grounds that it

21 had been the fruits of an illegal

22 search?

23 A No, I didn't. I represented my client on

24 the basis of the information he gave me,

25 Q Mr. Mouledoux, you testified earlier that you

26 spoke with Mr. Lewis on several occasion;

27 is that right, sir?

-20<

a Te Tne TATED, Ri nena

—

\ Q Did you also peak with him on the ornin

9 ||

| of the trial? |

‘ A Yes, I did, |

"d Q Did Mr. Lewis at anytime ever advise you

ej that he wanted to testify on his own

4 behalf? |

8 | A We discussed it. But he didn't tell me |

8 | absolutely specifically that he wanted

- to testify.

“ Q He never said that to you?

= A Absolutely not, If I remember correctly,

7 we had the whole lunch period for him

" to decide whether or not he was |

“ actually going to take the witness

-" stand, I also found during the lunch |

a7 hour he had given me some eron-ous |

18 | information as to his past background,

as Q What erroneous information? |

4 20 A As to his arrest record,

21 Q Arrest record?

23 A Yes, sir.

23 Q Don't you know that's not admissible?

a4 A I didn't say I was going to admit anything,

= to have a problem with bim on the

a6 witness stand, I didn't say that,

27 Q Would it be a problem if it were really an .

-21-

PLiait

arrest record?

A What I'm trying totell you is that the man

had not been truthful co me about his

past record, I didn’t say his con-

vicetion record or police record.

Q Well, I get the impression, then, you were

punishing him for not being truthful?

THE COURT:

I don't think that's a proper

question. Disregard that.

MR. BE7OU:

I apologize to the Court,

BY THE WITNESS:

A Mr. Lewis decided on his own that he was

not going to take the witness stand,

DIRECT EXAMINATION RESUMED BY MR, BE7OU:

q That's your testimony?

A Aboolutely.

Q It was nothing to do with whether or not he

had arrest or anything like that?

A No. That's something 1 found out during the

lunch hour,

Q Mr. Mouledoux, Mr. Lewis is also bringing

this action on the grounds you were

intoxicated at the time of trial.

Do you deny that, sir?

A Absolutely, -On May 13th, 1974, I gave up

-22<

— eee eee eee

drinking. And I hae witnesses to

that fact. Of course, I don't nave

anybody that's been with me twenty-

four hours a day. On May 13th, 1974,

was the last day I had a drink,

Is it your testimony that was the last time

you had an alcoholic beverage?

Other than a glass of wine at dinner time,

yes, that's my testimony.

Mr. Mouledoux, have you ever been treated for

alcoholism?

Not at all. It was voluntary abstinence on

my part,

Would you tell us, if you can, the significance

of May 13th, 1974?

That's the day I quit drinking, May the 12th,

Theda drink, May the 13th, I didn't,

I think you will find that's on a

Monday. It was a pretty wet Sunday,

Mr. Mouledoux, where were you the morning of

the trial before you arrived in the

Courtroom?

I presume I was at my home,

And it's your testimony you had no alcoholic

beverages that morning?

Correct; absolutely,

So, if Mr. Lewis were to testify he smelled

3S .

-23-

Co . os

aie

MR.

alcohol on wur breath, he would be

incorrect?

It wasn't my breath he was smelling. He

didn't say anything to me at the

time even,

He didn't say anything to you about wanting

to testify either?

We discussed his possibility of testifying,

BE7OU:

I tender the witness, Your Honor,

CROSS EXAMINATION

BY MR. NORIEA:

MR,

Mr. Mouledoux, isn't it a fact I told you

about the whole case before trial?

Certainly. I can't say the whole case,

But I knew enough altmoit the case when

I went to trial, There were no

surprises,

Didn't I give you as much or more information

you could have obtained in a bill of

particulars and prayer for oyer?

No doubt in my mind. I already said that

before the qustion was asked.

NORIEA:

No further questions,

BE7OU:

. ee

No further questions. from this witness,

mid

~24-

cr 40

— —

- o o @o “I o ao

Your Honor,

THE COURT:

MR.

Thank you.

BE70OU:

If the Court please, I would like to

call Sawyer Lewis to the stand.

SAWYER J, LEWIS, who, having been duly

sworn by the Minute Clerk, testified as follows:

DIRECT EXAMINATION

BY MR. BE7OU:

Please state your full name?

Sawyer James Lewis.

Are you presently incarcerated under the

author£hiewro£ the Louisiana Department

of etbevtiees’

That's right.

Your sentence is life?

That's right,

Were you represented by Mr. George Mouledoux

at the time you were convicted of

possession of heroin with intent to

distribute?

Yes, sir.

Was that in this Courtroom right here before

this Judge?

Right,

You remember when that was?

ower ees

February the 28th, 1977,

You know what the verdict was, sir?

Mr. Lewis, you heard Mr. Mouledoux testifying

that he met with you on several

occasions. Would you relate to the

Court as best you can on what occasion

you met with Mr. Mouledoux and under

what circumstances, sir?

Twice,

When was that, sir?

The day my mother-in-law sent him my lawyer

retainer, And the next day he come

and got the money. And haven't seen

him since the trial,

I can't hear you very well.

The day he came over to represent me, let me

know he was my lawyer. And the next

day he come got the money. And I

haven't seen him since till trial. |

How long before the trial did he cowto see

you?

No time,

No. The first time he saw you, was that

before the trial?

Right, representing me.

How long before the date of the trial was thati,

¢/

-26-

/ eae

ese ere ££

the first time ne came to see me?

Over a month.

Over a month?

Yes. I would say about, scmething Like

around the lith, I believe,

And how long dd he visit with you that day?

Oh, about, I guess about fifteen, twenty

minutes,

Where was that, sir?

In the Parish Prison.

And you retained him at that’ time to be your

lawyer?

Yes, sir, I did.

And when's the next time you saw him?

Next day he cgme to get the money, that was

it. He ain't said nothing else,

You said he came to get the money. You didn't

have money in the Parish Prison; did

you?

No. In my bank account,

Sorry:

In my bank account,

Something you signed?

Right. Power of Attorney.

Did you éitauss the case at that time with

him?

No, I didn't,

a2 Ju

Yh 5 | 49

When was the next time you saw him?

At -@eier.

Did you speak with him the morning of

trial?

Yes, we talked, It wasn’t abcut trial,

though,

Did you speak with him about the possibility

of your testifying ? |

Right,

What did you tell him?

I asked him could I testify on my behalf

because I have nobody else to witness

for me. He told me, "No." He said

it wouldn't do no goal because it's

up to the jury to find me guilty.

Did you advise him only once that you

wanted to testify? Would you tell

us how you advised him you wanted to

testify?

We discussed about, testifying. He got his

investigator go look up my record and

come back to the table right there wien

I was sitting, the same place. Got his

imestigator to come trek and find out I

was convicted for marijuana. He said

that would be looking bad against me,

_He say, "I advise you not to take the

~28-

rw ae

MR,

stand.” Isaid, "I want to. Nobody

else to vouch for me. If I don't

take the sand, it will look like I

em guilty anyway."

Mr. Lewis, you are also alleging

Mr. Mouledoux was intoxicated at the

time of the trial. Would you tell

us why you felt he was intoxicated?

Ke had the smell of liquor on his breth.

He was nervous, Everything he cross

examined I had to tell him out of

the transcript. Because I read the

transcript out the hearing. ~ had

to tell him that the officers were

contradicting his statements and all

of this.

Were you sure that the smell on his breath

was liquor?

That's right. I know liquor when I smell

ie. |

Mr. Mouledoux ever tell you at anytime he

was going to file motions on your

behalf?

BEZOU:

I tender the witness, Your Honor,

CROSS EXAMINATION

~29=

af 2. 255 re

MR.

MR,

NORTEA:

Mr. Lewis, did you talk with Mr. Mouledoux

the morning of trial?

Right,

And how many total times did you talk to

Mr. Mouledoux?

We talked quite frequently. We said a few

things before the trial.

Previous, prior to that, how many times

did you see Mr. Mouledoux?

Twice,

How many times did you see Mr. Bezou?

BE70OU:

Objection, That's totally irrelevant

to this proceedim.

THE COURT:

Sustained,

CROSS EXAMINATION RESUMED BY MR. NORIEA:

Did you tell Mr. Mouledoux you wanted to

take the witness stand?

That's right.

Did you tell Mr. Mouledoux that the police

planted this stuff in your coat?

Did I tell him they plated it?

I don't know how it got there. I don't

know how he got that. I don't even

know.

-30-

Q You don't know what you told Mr. Mouledoux?

A I didn't tell him that.

Q What did you tell him?

A What I told him, I was in the barroom and

they come to me and said they found

dope in my pocket,

Q That's all you told him?

A Yes,

Q You didn't think it was wise to tell him

anything more?

A What more could I tell him? I was in--

Q Didn't you tell him your driver's license

was in the coat too?

MR. BE7OU:

Objection,

THE COURT:

Just a minute. What's your objection?

MR. BE7OU:

The witness was trying to complete the

answer,

THE COURT:

Yes. I sustain that. Let's hear the

complete answer,

CROSS EXAMINATION RESUMED BY MR, NORIEA:

Q What else did you tell Mr. Mouledoux?

A I told him, for us going to trial, I told

him they came in there, the police

=Sie«

6 eas Ng

- OD PF ff

came in there, there was a crowd of

people in the place ail over, had

about twenty-five, thirty people in

the place. Okay, the officer came in,

I was sitting at the bar. My jacket

was in the booth with my driver's

license and light bill in it. That's

what I told him, And the next thing

I know they cae in, walked to the haat:

came to the front, came over with the

coat in his hands and dope in the other

hand and said, “You are under arrest."

How did they know to come to you?

The driver's license was in the pocket,

Was it dark in the bar?

No, it wasn't, The door was opened,

It is your testimony you were not in front?

Sir?

It's your testimony you were not out in

Front of the bar when the police came?

Exactly; I wasn't, I was sitting at the

bar when they came and arrested me at.

You say Mr. Mouledoux was drinking. You’

know for a fact he was drinking?

I know liquor when I smell it.

Did you tell him during the trial that

you thovght he shald stop the trial

»32-

: d=

because he was intoxicated?

No, I didn't,

Why didn't you do that?

I have nothing to do with his private life,

I thought he knew what he was doing.

People are capable of drinking and

doing things without mistakes. it's

not the alcohol. You can be drunk as

you want and go on and nobody stop you.

Why don't you think Mr. Mouledoux did _

his job?

Because he didn't,

THE COURT:

MR.

No,

BEZOU:

I'm going to object to the opinion,

The witness is not qualified,

CROSS EXAMINATION RESUMED BY MR, NORIEA:

MR.

Are you mad because you were con. icted?

BE7OU:

Objection,

THE COURT:

Sustained,

CROSS EXAMINATION RESUMED BY MR, NORIEA:

At the time you spoke with Mr. Mouledoux,

how long did you speak to him?

Which time?

“f

=$9-

4p en , 09

yo) ”- @ 3? &

The time, start off at Parish Prison,

How long did you speak to hin the

first time?

About fifteen, twenty minutes,

You recall that day?

I believe it was the llth, if I'm not

mistaken,

January the llth?

Right.

Or February we. tah

No. Not in February. He didn't come,

After January I didn't see him no more.

When was the second time you spoke to him?

The 12th, to get the money,

Did you pay money in the Parish Prison?

No. He had to get it out of my account,

I had to give the Power of Attorney,

You didn't speak with Mr. Mouledoux about

the case the second time?

No, I didn't, All he came to get the

money and he left,

You give Mr. Mouledoux the names of any

of the people in the bar that day?

No, I didn't, I told him, you know, check

around the bar and see anybody wanted

to witness for me.

Who were you with at the bar that day?

49 ee

a ne eee

tl A Who I was with?

a OQ Ves

Pp 25. ae

| A i usually be by myself,

"Oe You didn't know amone in the bar?

“E A Yes, I knew.

8 | Q You didn't give anybody the names of people

7 |

co testify in your behalf?

8 Objection, Your Honor. He just

10 testified that he didn't give

i Mr. Mouledoux notice because

12 he didn't know who was in the

13 bar at that time,

14 THE COURT:

15 ~ I sustain that,

16 CROSS EXAMINATION RESUMED BY MR. NORIEA:

17 Q How long had you been at the bar?

18 A I would say about, I camein about two and

19 a half hours before they arrested me,

: 20 four o'clock,

S 21 Q Who did you speak with in those two and a

22 half hours?

23 A I spoke with a lot of people. |

24 Q You didn't kmw their names?

25 A Yes, I know their names;

26 Q What are their names?

27 MR. BE7OU:

nn ee =

I obfZect to the relevancy and materi-

THE COURT:

ality of these questions,

I sustain it,

Was

BY THE WITNESS:

A Yes, sir.

BY THE COURT:

It's

BY THE WITNESS:

A Yes, sir.

MR. NORIEA:

Your

THE COURT:

it your defense you did not

possess that dope that that

dope did not belong to you?

your defense the police planted

the dope or mistakenly thorht

the dope came from your coat

pocket?

Honor, I think these questions

are relevant based on witnesses

that can testify on his behalf.

We are only dealing with whether or

not it was a matter of

incompetency not to file a

motion to suppress based upon

the knowledge Mr. Mouledoux may

have had as a result of the

o96=

MR. BE

THE CO

MR. NO

THE CO

sworn

BY MR,

preliminary examination and

conversation with the defenda

All right. You're excused, Mr. Lex

70U:

Your Honor, the Court please, the

matter is submitted unless th

Court would want a brief from

the defendant,

URT:

You have any witnesses?

RIEA:

Sheila Myers,

URT:

I want to call a witness myself,

But I will call Miss Myers,

SHEILA C. MYERS, who, having been

by the Minute Clerk, testified as follo

DIRECT EXAMINATION

NORIEA:

State your full name, please?

Sheila Carol Myers,

How are you employed?

Assistant District Attorney for the Par

of Orleans,

Are you assigned to this section of Cou

Yes, sir, assigned to Section "A",

How were you assigned on February, 28th, 1977?

nS Pu

duly

ws:

ish

rt?

A I was assigned as an Assistant District

Attorney to Section "A",

Q Do you recall the trial I prosecuted against

Iiir. George Mouledoux involving the

defendant Sawyer Lewis?

A Yes, I do.

Q During the course of that trial, did you

observe any parts of it?

A Did I observe any part of the trial, sir?

Q Yes, ma'am,

A Yes, I did. I sat in the front row, which

I generally do when someone else is

in trial.

Q During the course of the trial, the recess,

did you have occasion to speak with

George Mouledoux, the Defense Attorney?

A I spoke with Mr. Mouledoux that morning prior

to trial to go over with him to kind of

facilitate the order of the docket that

morning. I generally try to speak with

Defense Attorneys before the trial

begins,

Q How long did you speak with him?

A Maybe three or four minutes, sir,

Q Did you smell any alcohol on his breath?

MR. BEZOU:

Objection, Leading.

=3$8-

SY THE WITS:

A I detected no alcohol on Mr, Movuledoux when

I spoke with him,

Q Did you notice anything unusal about his

behavior which would lead you to

believe he was intoxicated?

MR. BEZOU:

Objection, Your Honor, Leading.

THE COURT:

Overruled, It is leading. But I

will permit it. This is an

attorney, rather, an officer of

the Court, I'm sure that she

cannot be led and words cannot

be put in her mouth by leading

questions,

BY THE WITNESS:

A During the order of the trial where I

observed, Mr. Noriea, I noticed nothing |

that would distinguish Counsel for the

defendant's behavior from your behavior |

during the trial. There were objections:

by both people and both were partici-

pating in the trial.

MR. NORIEA:

SY yore ds

ex PRE

follows:

THE COURT:

I have no further questions.

No questions,

Your Honor, I would like to take

the stand,

NICK F, NORIEA, JR., who, havig been

duly sworn by the Minute Clerk, testified as

TESTIMONY BY MR, NORIEA:

Your Honor, I'm Nick Noriea, an

Assistant District Attorney for

Orleans Parish assigned to the

Career Criminal Bureau. And I

was assigned to prosecute Sawyer

Lewis because of his status as a

career criminal, And on February

the 28th, 1977, I tried the case

against Mr. George Mouledoux--

I object to the narrative form of the

testimony,

Overruled,

TESTIMONY BY MR. NORIEA:

During the course of the trial, I spoke

to Mr. Mouledoux on numerous

-40-

MR. BE7OU:

THE COURT:

TESTIMONY BY MR. NORIEA:

I object. The issue is not Mr. Noriea's

I will ignore the opinion testimony.

Mr. Mouledoux made numerous objections

occasions, I would say at least

four, five or six times during

the day from prior to the trial

when we were getting prepared to

see if each was ready to go to

trial all the way through jury

deliberations, which was at the |

conclusions of the trial, during

the lunch break, etcetera. At

no time during the day did I

detect alcohol on the breath of

Mr. Mouledoux, At no time during

the trial did I have suspicion

that he may be in the least bit

intoxicated. As a matter of

fact, he conducted a fairly

decent trial. Having prosecuted

close to a hundred jury trials,

I thought he was probably--

opinim of Mr. Mouledoux's per-

formance at the trial.

wy se

okie

THE COURT:

BY MR,

during the course of the trial

which I thought I might be able

to sneak past him, but was unable

to sneak anything past him during

the whole trial. That's about it.

Cross examination?

CROSS EXAMINATION

BE7OU:

Mr. Noriea, you spoke with Mr. Mouledoux

prior to this hearing this morning?

No. I mean [I saw him in the Court. I asked |

him whet was going on. He asked me if

———— ——— — -—_——_ —----- ——

I had a copy of the motion you had filed.

And I said, "No, I had thrown it wg

CS. ty ae a j

LS Se ay

You have known him quite sometime now;

haven't you?

I would say so. As long as TI have known

you.

You are a Prosecutor; is that right?

That's correct,

It's your duty to prosecute?

That's correct,

So that you would like to see Mr. Lewis

remain in prison since you are the

Prosecutor of that capital conviction;

is that right?

~42-

Sie sets Od

ences «

A I think the jury decided that.

Q I'm asking you.

A If that's the jury's wishes.

Q Would you answer my question, please?

}

HE COURT: |

No. I'm going to sustain, or I'm not |

going to permit the question on |

my own motion, I feel that his

opinion is irrelevant,

I have no further questions, Your

Honor.

MR. NORIEA:

There's no other witnesses,

THE COURT: |

I think I want to hear from Mr. Robert |

Zibilich. Mr. Zibilich will |

testify in this case, I'm calling |

Mr. 7ibilich as a witness to the |

Court relative to the sobriety of

Mr. George Mouledoux,

ROBERT J. 7IBILICH, who, having been i

duly sworn by the Minute Clerk, testified as

follows:

EXAMINATION BY THE COURT:

Q Mr. 7ibilich, how long have you been see

with Mr. Mouledoux? :

o4$<

a PP. 6

At least seventeen years,

You are a member of the Bar of the state of

Louisiana?

I am,Your Honor,

Practicing in Orleans Parish? |

208, sir, |

Particularly, you practice a great deal in

the Criminal District Court for the

Parish of Orleans?

308, sit,

Were you ever in a partnership with

Mr. Mouledoux in the practice of law?

We were associated together for quite some

time,

Particularly prior to the date of this trial,

February 28th, 1977, did you have

occasion to see Mr. Mouledoux often?

Quite frequently. I don't see Mr. Mouledoux

quite as much recently. But I would |

Say up until probably January or

February of this year, I saw him daily.

Can you state your observation to the sobriety

of Mr. Mouledoux for approximately one )

year prior to February 28th, 1977?

To my knowledge, he never took an alcoholte

drink during that period, This was not

true sometime long past.

Orn 2

THE COURT:

Cross examination relative to the

topic of sobriety?

CROSS EXAMINATION BY MR. BEZOU:

Q Mr. 7ibilich, do you recall the conversation |

we had last Friday in your office?

A I do.

Q Do you recall me asking you specifically

about the intoxication issue?

A Yes, I recall several things coming up;and

when you said, "intoxicated," I said,

"No, I can't believe that." TI said,

"It's possible, I'm not with him all

day long." I specifically told you to

my knowledge he had quit drinking,

Q You don't recall telling me that perhaps he

still drinks on weekends, sir?

A I did not tell you that at all,

Q I'm not saying you did, I was trying to get .

our recollection straight. You were not

with him the morning of the trial;

were you, sir?

A No, I was not,

MR.BEZOU:

No further questions, Your Honor,

MR. NORIEA:

The State is prepared to submit it on

6 oO

wh Su

Your

The

the testimony heard today in Court.,!

Honor, if the Court please, the |

matter is submitted unless the i

Court would want a brief specifically

on the legal issue of the ccoetacd

of filing a motion to suppress

evidence in a case like this. I

think the record is clear that a

lawyer would have a duty to file

a motion to suppress under these

circumstances to protect the aaa

of the defendant, whether that

duty has been breeched, and on that

issue alone the defendant is entitled

to habeas relief,

record is clear from what, even from

said, and from what Mr. Lewis said,

what Mr. Mouledoux says Mr. Lewis

and from what the preliminary

examination reveals, that a motion |

to suppress was warranted here,

There was no good cause for the

police to go after Mr. Lewis. There

was no good cause for them to go

into his coat. There was no good

cause for them to arrest this man

mY al

Ole) he a

and charge him with possession of

heroin with intent to distribute.

That"’s an essential issue to this

case. 4nd it's a critical one in

view of the fact Mr. Levis received

a life sentence, It ould also be

due to the fact there is a sacred

duty critical here. This man's

rights should have been protected.

No lawyer can assume, especially

when he testifies there was no

prejudicial facts had a motion been

filed on behalf of Sawyer Lewis.

‘

It's irrelevant Sawyer Lewis may

have said he didn't own the heroin,

It's irrelevant becase the motion

to suppress the evidence the police

would have testified. Their

testimony cal1ld have been contra- |

dicted by the testimony on the

preliminary examination. 9%n hind-

—+ ee << eee

sight, if you look at the testimony

of the police officer at the trial

and compare it with the preliminary

examination, you see two things.

One: A germaine, important

contradiction, And, two: still

lh Pa

62 °

no probable cause,

if you read the testimony of Officer

Marie and Kelle r at the trial and

you read the testimony of Officer

Marie at the preliminary examina- |

tion, still there's enough doubt.

There's enough reason for a lawyer

to have filed a motion to suppress

the evidence. Even if the Court

can agree with me this is absolutely

the case Were q motion to suppress

would not be granted, that's not

the issue, The issue is reasonable-

ness. And I would submit to the

Court that the Court should and

would be of the opinion that a

lawyer should reasonably assume

that a motion to suppress the

Warrant would be in a case like

this to protect the defendant's

rights, And we, as lawyers, have |

a duty to do those things especially

when the sentence could be i

mandatory life, which Mr. Mouledoux

knew before going to trial,

Predemitting the other aspect of

the case, the fact of intoxication,

63 |

bere " :

MR.

But,

NORIEA:

predemitting Sawyer Lewis wanted

to testify and was not allowed to

testify, all we have is one person's

testimony against the testimony of:

another person. And you're left |

in a deadlock. |

you are not left in a deadlock about

the cold,hard facts of this record |

at trial. You have before you the

preliminary examination in print;

you have the transcript of the trial

in print and the testimony of

Mouledoux and Lewis today which

supports my minion that a motion to

suppress should have been filed and

in fact is not filed. There weren't

any pretrial motions for that

fact, Your Honor,

may say, I don't think an attorney |

has a duty to file motions totally |

frivolous and without basis of

property abandoned. On the second

part, I told Mr. Mouledoux more '

about the case than he could have

gotten in the bill of particulars,

prayer for oyer and as well as if

-49-

there was any discovery in the

attempt motion to suppress if he

wanted to file that. He knew just |

about the entire case befae he went

to trial that morning. That aianel

be one of the things I spoke with |

him about prior to trial, That I !

noticed nothing was out of the !

ordinary with his breath or that

he was seties unnormal, I submit |

it on that, |

THE COURT: |

The application for writ of habeas corpus

is denied,

MR. BE7OU: :

To which ruling we respectfully object, |

Your Hawr, |

* * * *

>ee

«$0

? iC oa

I, ELLIS M. GILL, Official Court |

Reporter, Criminal District Court, Parish of |

Orleans, Section "A", hereby certify that the |

foregoing pases of transcript in the case entitled |!

and numbered State of Louisiana versus Sawyer J,

Lewis, case number 257-998, is a true and correct

copy of my shorthand notes done to the test of ny |

ability and understanding,

a) ; oy,

LL ws Ma. 1M. SL

Pltis M. tir

Official Court Reporter

PAs ae as ca 7s

Ap ftw dX &

IN THE UNITED STATES COURT OF APPEALS

FOR TRE FIFTH CIRCUIT

MA 1

No. 79-1646 i’ ST py

SAWYER LEWIS,

Petitioner-Appellant,

versus

LOUISIANA STATE PENITENTIARY,

Respondent~Appellee.

Appeal from the United States District Court for

the Eastern District of Louisiana

( FEBRUARY 4 , 1980)

Before MORGAN, REAVLEY and HATCHETT, Circuit Judges.

PER CURIAM:

Sawyer Lewis was convicted by a jury of possession of

heroin with intent to distribute in violation of LA. REV.

STAT. ANN. § 40:966 (West Supp. 1979) and sentenced by the

court to life imprisonment without benefit of parole. Lewis

filed a petition for a writ of habeas corpus in the trial

court alleging ineffective assistance of counsel. After

conducting an evidentiary hearing, the trial court denied

the writ. Lewis' habeas petition to the federal district

court was also denied. We affirm.

The standard for judging the effectiveness of retained

counsel is set forth in Fitzgerald v. Estelle, 505 F.2d .

1334, 1338 (5th Cir.), cert. denied, 422 U.S. 1011 (1975):

In sum, whenever the actions of retained

counsel operate to deprive the trial of :

fundamental fairness then the Fourteenth

Amendment due process had been violated

notwithstanding any kind of specific

involvement by a particular state official.

If a retained counsel's actions do not sap

the proceedings' fundamental fairness, but

are challenged as less than reasonably

effective in violation of the Sixth Amend-

ment, state involvement through actual or

constructive awareness of the error by the

judge, prosecutor, or other responsible

official who could have corrected it, must

be shown.

Thus, to establish a denial of the sixth amendment

right to counsel where defendant retained his own counsel

requires a showing of either (1) that retained counsel's

performance was "so grossly deficient as to render the

proceedings fundamentally unfair" or (2) that retained

counsel's incompetence is so apparent that a reasonably

attentive official of the state should have been aware of it

and could have corrected it. Id.; United States v. Childs,

571 F.2d 315 (Sth Cir. 1978); Howard v. Henderson, 519 F.2d

1176 (5th Cir.), cert. denied, 423 U.S. 1036 (1975).

After discovering heroin in Lewis' coat, two uniformed

officers arrested him. Lewis was not wearing his coat at

the time of search--his coat had been lying unattended in a

booth. A pat-down of Lewis after his arrest uncovered

additional heroin concealed on his person.

Lewis claims that he was denied effective assistance of

counsel because no motion to Suppress this evidence was

filed. Although the record indicates that counsel had

prepared a motion co suvrcess. ft iss ns: .isclose his

reasons for not filing it. If counsel erred in failing to

file the motion, we hold that this error does not compel a

finding of fundamental unfairness.

«a bal

The right to effective assistance of counsel does not

mean “errorless counsel, and not counsel judged ineffective

by hindsight, but counsel reasonably likely to render and

rencering reasonably effective assistance." Herring v.

Esztelle, 491 F.2d 125, 127 (5th Cir. 1974), citing MacKenna

Vv. Ellis, 280 F.2d 592, 599 (5th Cir.), modified on other

zZrounds, 289 F.2d 928 (Sth Cir.), cert. denied, 368 U.S. 877

(1961). Mere errors of judgment or a mistaken choice of

Strategy by an attorney is insufficient to Support a finding

of lack of effective assistance of counsel in a constitutional

sense. Coco v. United States, 569 F.2d 367, 368-71 (Sth

Cir. 1978); Loftis v. Estelle, 515 F.2a 872 (Sth Cir. 1975).

Counsel was retained and met with his client more than

a month before trial. Additionally, counsel hired an investi-

gator who discovered petitioner's arrest record. The record

On appeal reflects that counsel cross-examined the state's

witnesses and objected to the introduction of evidence

during the course of the trial. Finally, counsel testified

at the state court habeas hearing that it was petitioner and

not counsel who decided that petitioner would not testify in

his own behalf at trial. The record does not demonstrate

that petitioner had a trial so fundamentally unfair as to

violate his rights to due process under the fourteenth

amendment.

Finally, the record fails to demonstrate that petitioner's

counsel was so blatantly ineffective that the Louisiana

trial court or any one of its responsible officials knew or

should have known that Lewis was receiving inadequate

7 representation. Loftis v. Estelle, supra.

The petition for the writ of habeas corpus is denied

and the decision of the district court js affirmed.

AFFIRMED.

ea re

“a Pe wd IX c tee ds | 4 42 HTB

UNITED STATES DISTRICT COURT hELsbn D.guhE 3

EASTERN DISTRICT OF LOUISIANA CLEaA

SAWYER LEWIS NO. 77-3577

Versus CIVIL ACTION

LOUISIANA STATE PENITENTIARY SECTION "E"

JUDGMENT

The Court having, on December 22, 1978, denied the application

of Petitioner for Writ of Habeas Corpus;

IT IS ACCORDINGLY, ORDERED, ADJUDGED AND DECREED that there

be judgment in favor of Louisiana State Penitentiary, and against

Sawyer Lewis, Petitioner, dismissing the latter's application as aforesaid.

New Orleans, Louisiana, this 2% Shay of December, 1978.

Nid |. fell.

UNITED STATES DISTRICT JUDGE j

kke

1978 5 me ROGOS

pec 2? * Seeeay

. r are’ — —~ ROLUADS

DATE OF £87" —<@ 7 Sf

oa 7

o 2 Decay x9

ee OER SA =

7 ; ere yam

Bpfewdi y |

o. 45. Son tga

UNITED STATES DISTRICT COURT blo S 22 di fy

EASTERN DISTRICT OF LOUISIANA Mle NIK §

CrERA

SAWYER LEWIS CIVIL ACTION Vi

versus NUMBER 77-3577

LOUISIANA STATE PENITENTIARY SECTION E (4)

REPORT AND RECOMMENDATION

Sawyer Lewis is a state prisoner, presently incarcerated

in the Orleans Parish House of Detention in New Orleans, Louisiana.

He is serving a life sentence, without benefit of parole, imposed

by the Honorable Charles R. Ward, Criminal District Court Judge,

Parish of Orleans, after being convicted by a jury on February 28,

1977, of possession of heroin with intent to distribute, in viola-

tion of La. R.S. 40:966. —

Lewis is now before this Court on his application for

a writ of habeas corpus. He seeks relief on the grounds that he

was denied due process of law and effective assistance of retained

counsel as guaranteed by the Sixth and Fourteenth Amendments of

the United States Constitution.

Although petitioner chose not to appeal his conviction

and sentence to the Louisiana Supreme Court, he filed a petition

for a writ of habeas corpus in the trial court alleging ineffective

assistance of counsel. After conducting an evidentiary hearing,

Judge Ward denied petitioner relief. The Louisiana Supreme Court

denied Lewis' application for writs of certiorari, mandamus and

Prohibition. State of Louisiana v, Sawyer Lewis, 352 So.2d 236

(La. 1977). Thus, petitioner has exhausted his state remedies and

is properly before this Court. Picard v. Connor, 404 U.S. 270,

92 S.Ct. 509 (1971); Brinks v. Georgia, 512 F.2d 673 (5th Cir.

1975); 28 USC 2254(b).

The state Cranscripts of the preliminary hearing, the

trial and the evidentiary hearing as well as the duplicate records

| = s

Tinsel

ENTERED & MAILED 12-26-78

hb) 77 we

of the Louisiana Supreme Court are before this Court and no

federal evidentiary hearing is required. Townsend v. Sain,

372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The record reflects that shortly after petitioner was

arrested, a preliminary hearing was conducted. The testimony

adcuced at that hearing shows that on December 29, 1976, at

approximately 6:30 p.m. Officers Warren Keller and John Marie,

Jr., of the New Orleans Felony Action Squad, who were making a

routine wanted check for a suspected armed robber. by the name

of Lincoln Lewis (no relation) approached the Streamline Tavern

in the 3200 Block of Fern Street, New Orleans, Louisiana. They

observed several black males loitering outside. As they alighted

from their unmarked car, they saw petitioner enter the tavern in

a "hurried" manner. Officer Marie followed Lewis into the bar,

observed him run to the right side of the room, reach into a

booth, grab a jacket, place something inside the "left" front

pocket, "discard" the jacket into the booth and walk away.

Officer Marie then walked over to the jacket and looked into the

"right" front pocket "figuring defendant might have threw (sic)

a gun in there. It's a heavily narcotics traffic bar, many gun

arrests have been made there." Although no gun was found, Marie

testified that he found two ballons: one tied in a knot and one

ripped open on the side. Further search of the jacket revealed

loose tin foil packets along with a Public Service bill, loose

keys and some change. (Tr. of Prel. Hear. pp. 2-17)

After Officer Marie retrieved the jacket and informed

his partner of its contents, petitioner, who was now standing next

to the jukebox several feet away, was instructed to walk outside.

Once outside, Lewis was frisked for weapons. Officer Marie, after

examining the remaining jacket pockets and the contents of the

tin foil packets containing a brown powder which he believed to

be heroin, placed petitioner under arrest. (Tr. of Prel. Hear.

pp. 2-18)

2 Dp

At the trial, the testimony of the arresting officers

was substantially the same except that Officer Marie testified

that he first searched the "right" front pocket and not the

"left" as was testified to at the preliminary hearing. (Tr.

p. 43)

The record reflects that although counsel did not

file a motion to suppress this evidence, he did object to its

introduction during the course of the trial. (Tr. pp. 46-49)

Lewis attacks his conviction on the grounds that the

concuct of his retained counsel violated his right to effective

assistance of counsel in that he failed to adequately prepare

his case for trial, to cross-examine adverse witnesses and object

to leading questions at trial. However, the gravaman of Lewis’

contentions is that his conviction was based solely on the testi-

mony of police officers conducting an illegal search and the

introduction of illegally seized evidence, yet counsel failed

to file a motion to suppress this evidence or call petitioner as

a witness in his own behalf.

The standard for judging the effectiveness of retained

counsel is set forth in Fitzgerald v. Estelle, 505 F.2d 1334

(Sth Cir. 1975) (en banc):

“The sum, waenever the actions of retained

counsel operate to deprive the trial of fundamental

fairness then the Fourteenth Amendment due process

has been violated notwithstanding any kind of specific

involvement by a particular state official. If a

retained counsel's actions do not sap the proceedings

fundamental fairness, but are challenged as less than

reasonably effective in violation of the Sixth Amend-

ment, state involvement through actual or constructive

awareness of the error by the judge, prosecutor, or

other responsible official who could have corrected St,

must be shown."

Thus, to establish a denial of the Sixth Amendment

right to counsel where defendant retained his own counsel requires

a showing of either (1) that retained counsel's performance was

"so grossly deficient as to render the proccedings fundamentally

unfair" or (2) that retained counsel's incompetence is so apparent

that a reasonably attentive official of the state should have been

aware of it and could have corrected it. Fitzgerald v. Estelle,

supra; Howard v. Henderson, 519 F.2d 1176 (5th Cir. 1975); United

States v. Childs, 571 F.2d 315 (5th Cir. 1978).

However, the right to effective assistance of counsel

uncer the Sixth and Fourteenth Amendments does not mean "errorless

counsel, and not counsel judged ineffective by hindsight, but counsel

reasonably likely to render and rendering reasonably effective

assistance."' Howard v. Henderson, supra; Herring v. Estelle,

491 F.2d 125 (5th Cir. 1974) citing McKenna v. Ellis, 280 F.2d

592 (5th Cir. 1960), cert. denied 268 U.S. 877, 82 S.Ct. 121

(1961).

Lewis' claims as to the conduct of counsel during the

course of his trial are without merit. The preparation evidenced

by the actual time spent with petitioner prior to trial is not

indicative of the quality of the defense presented at trial.

Herring v. Estelle, supra. The record reflects (and the testimony

of the prosecuting attorney and other witnesses at petitioner's

state court habeas hearing substantiate, Tr. pp. 61-63) that

counsel engaged in skillful and vigorous cross-examination of the

State's witnesses and made numerous and appropriate objections

during the course of the trial. Additionally counsel testified

that it was petitioner and not counsel who decided that petitioner

would not testify in his own behalf at the trial of this matter.

(Tr. p. 44)

There is nothing in the record to suggest that defendant

had a trial so fundamentally unfair as to violate his rights to

due process under the Fourteenth Amendment.

Under Louisiana law, a defendant who fails to timely

file a motion to suppress evidence is deemed to have waived

any objection to the admissibility of the evidence on the grounds

of an infirmity in the search and seizure. La. CCP 703; State v.

Womack, 283 So.2d 708 (La. 1973). An objection at trial or on

appea> comes too late. State v. Lawrence, 255 So.2d 729 (La.

1971), State v. Jenkins, 340 So.2d 157 (La. 1976).

Additionally, failure to follow prescribed state pro-

cedural rules can foreclose habeas review absent a showing of

both cause for the default and actual prejudice resulting from it.

Wainwright v. Sykes, 433 1.5. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594

(1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48

L.Ed. 2d 149 (1976). 2/

The record reflects that defendant's counsel was aware

of the facts and the law (Article 703 of the Louisiana Code of

Criminal Procedure and the relevant constitutional objection

that might be made) and made a deliberate decision not to file

a motion to suppress because in his professional judgment, the

motion was unfounded. (Tr. pp. 28-47)

1/ '

="See O'Berry v. Wainwright, 546 F.2d 1204 at

1216 (5th Cir. 1977) holding that the Stone v. Powell,

428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d (1976) require-

ment that the State provide an “opportunity” for full

and fair litigation of a Fourth Amendment claim is

satisfied where the state court is faced with the claim

and chooses to resolve it on an independent, adequate,

non-federal state ground.

See also LiPuma v. Comr's Dept. of Corr.. State

of N.Y., 560 F.2d 84 at 93> n. n ¥. cert.

denied U.S. , 98 S.Ct. 189 holding that Stone

precludes federal habeas review of a Sixth Amendment

claim, where the basis thereof is an alleged Fourth

Amendment violation fully and fairly considered by the

state courts and U.S. ex rel Carbone v. Manson, 447

F.Supp. 611 at 61 . Conn, precluding habeas

review of an alleged Fifth Amendment violation where

its resolution would require relitigation of a Fourth

Amendment issue.

+ © oe ee oem eee

At the hearin; on petitioner's writ of habeas corpus,

counsel testified that the District Attorney's Office had opened

its file to him and after a review of that file and based upon

discussions with his client, he did not think any pre-trial motions

were warranted. (Tr. pp. 29, 46) He also testified that based

upon certain portions of the transcript of the preliminary hear-

ing alone, he did not think the police had probable cause to

follow Lewis into the bar, but did have a right to go into the

bar and search the coat because it had been abandoned. (Tr. pp.

37-39) Although counsel prepared a motion to suppress, he decided

not to file it after consulting with Lewis who told him he didn't

80 near the coat or put anything in it and that it was the police

who walked over to the coat and put something into his pocket,

This was a completely different Story from that which came out

at the preliminary hearing and in counsel's opinion, based upon

a review of the District Attorney's file, a review of the pre-

liminary hearing and discussions with his client, it would have

been a breach of his professional responsibilities to file a

motion so frivolous and misleading. (Tr. pp. 39-42)

Mere errors of judgment or a mistakea choice of

Strategy by an attorney is insufficient to Support a finding of

lack of effective assistance of counsel in a constitutional sense.

Coco v. United States, 569 F.2d 367 (Sth Cir. 1978); United

States v. Meyer, 417 F.2d 1020 (8th Cir. 1969); Loftis v. Estelle,

515 F.2d 872 (5th Cir, 1975). ‘7

However, assuming arguendo that petitioner's counsel

was less than reasonably effective, the record fails to demonstrate

that petitioner's counsel was so blatantly ineffective that the

Louisiana trial court or any one of its responsible officials

knew or should have known that Lewis was receiving inadequate

representation. Loftis v. Estelle, upra; United States vy. Garza,

7¢

563 F.2d 1164 (Sth Cir. 1977); Alverez yv. Wainwright, 522 F.2d

100 (5th Cir. 1975).

In view of the foregoing, Lewis' petition for writ of

habeas corpus should be dismissed.

RECOMMENDATION

It is recommended that the petition of Sawyer Lewis

for a writ of habeas corpus be dismissed.

J yh

New Orleans, Louisiana, this WO day of November, 1978,

Respectfully submitted,

Y ; i

“Uhiati-ar

Supreme Court of Louisiana

NEW ORLEANS, 70112

STATE OF LOUISIANA Novmeber 23, 1977

Vie

SAWYER LEWIS NO. 60,817

In re: Sawyer Lewis applying for writs of certiorari, mandamus

anc prohibition

Writ cenied. We cannot say the ruling was incorrect.

/s/ PFC

/s/ IWS

/s/ FWS

/s/ JAD

(s/ Wem

TATE, J., is of the opinion the writ should be granted.

DENNIS, J., is of the opinion the writ should be granted. In

view of the facts that the defendant was faced with a life

sentence, without parole etc., which he subsequently received,

and that thé state's case was based upon an apparent illegal

seizure wnich the defendant's attorney failed to move to suppress,

the defendant was denied effective assistance of counsel.

A TRUE COPY

Clerk's Office

Supreme Court of Louisiana

New Orleans

November 23, 1977

“age

branche, Jr.

Deputy Clerk

RppEN ALL =

lis TE OF LOUISIANA CRINI [STRICT Col

" ° ”“ a land a

S 1 \/ VUnl iS

* TT. F ,y9 70en ’ " if ’ A x ‘ }

°IiSAVYER LEWIS SECTION "A", CASE 257-998

Transcript of trial on the merits h

ecard

6 February 28th, 1977, in the above named md numbered

7 matter, before the HONORABLE CHARLES &, WARD,

8! presiding.

13 ||APPEARANCES:

14 NICK NOREA, ESQ,

ASSISTANT DISTRICT ATTORNEY

15 REPRESENTING TE STATE OF LOUIS

16 GEORGE E, MOULEDOUX, ESQ.

COUNSEL REPR"'SENTING DEFENDANT

‘apeceees BY:

ELLIS M. GILL

22|OF FICIAL COURT REPORTER

_ 17

: 79

Judre

IAWA

INDEX

“STATE WITNESSES EXAMINATION BY: PAGE

,||Phtlip Aviles Direct, Mr, Norea 3

5 vVarren Keller Direct, Mr. Norea 12

Cross, Mr. Mouledoux 24

6 | P :

' John F, Marie Direct, Mr. Norea 29 |

21 Cross, Mr. Mouledoux 38

Re~Direct, Mr. Norea 45

$ ji . |

, Frank Ben Direct, Mr. Norea 49 i

it |

State and Defense ROC ERs 6 cv ue v-owk se 0 es 60 6666425 Oe

* * * *

|| -xHITBITs

8 PME, SQSVEGORSE, ORVRLONRs 46 0.60.6'06'0 656440 bo eee

” S-?, sheet of paper with 2?5 tin foil

14 packets and a balloon attached thereto.........46

1. S-3, sheet of paper with 19 tin foil

packets and a balloon attached thereto.........46

s S-4, a sheet of paper with five tin foil

- POGRSEE SCCHGHEE EHOTHEOs 6 dds vciviaceouvseesedvsaehl

18 S-5, SR. SAGE 66 6 66h 04 oS 66 08 6bs CO O6 beware

- S-6, four keys and two New Orleans Public

Service, Inc. ORE ESe 6:03 66.6 660 05s o CEES Shc 2a

20! s-7, a driver's license and an envelope

containing ol Pre eee ee rire sy re ey ee

21 |

22 * ke * te

23 |

. |

25 SO

27 | |

-2-

wt (Ne objections noted by Counsel for Pefense

I 3 .

“iduring voir dire examination or opening statement b

all.

pore State. )

te ee a Pe ee

boY THE COURT:

Call yur first witness, Mr. Norea.

Fysy MR. NOREA:

Philip Aviles.

8 | PHILIP AVILES, who, having been duly sworn

sly the Minute Clerk, testified as follows:

10 DIRECT EXAMINATION

NIBY MR, NOREA:

12 11Q State your name, please?

13 A Philip Aviles.

14 11Q How are you employed?

5 1A Criminalist with the New Orleans Police

16 Department,

17 1Q How long have you been a criminalist?

18 A Approximately three years,

I9iBY MR. NOREA:

20 At this time, the State is going to attempt

21 to qualify Officer Aviles as an expert

22 at in the field of identification of a

23 controlled dangerous substance,

24 particularly heroin.

25/DIRECT EXAMINATION BY MR. NOREA: i

26 iQ How long have you been with the Crime Lab?

27 lA Three years approximtely,

So FF» © F ®

es | oa) os

During that period of time, have you had

occasion to identify controlled dangerous |

substances?

I have.

lbw many, particularly heroin?

I rea

When

Yes,

What

Bachelor of Science Degree,

Where did you receive that?

South Eastern in Hammond, Louisiana,

And which curriculum did you take?

lly have no idea of the number of times,

A total number of cases is well over five

hundred,

you first started, did you ever receive

any special training in the field of

identifications of controlled dangerous

substances, particularly heroin?

I did on-the-job training with the

department, And since I have been with al

department, I attended schools, One |

drug enforcement administration school tod

Maklene (phonetic spelling), Virginia on

analysis of controlled dangerous substances.

And Gulf South Reserch Institute School on

gas chromatography related to separation

of various compounds, relating to cmtrolled

dangerous substances,

is the extent of your formal education?

I 2.

3 Q

Si,

at ¢

5 A

8 | A

9 lg

13 A

14 Q

15 A

17 Q

20 |} A

21 Q

24 A

25 Q

26 A

27 Q

Biological sciencosg,

How many courses did you take in chemistry?

Five courses, I believe, altogether.

Do you know the total amount of hours of college

credits you have in chemistry?

Approximately twenty semester hours,

{

Back to the job training, when you first started

with the Crime Lab, with the Police

Department Crime Lab, did you work under

anyone's supervision?

Yes, I did,

Whose supervision?

Nhen I first started, I worked under the

supervision of Mr. Walter Stratta,

To your knowledge, has he ever been qualified

as an expert in the field of controlled

dangerous substances particularly heroin?

Yes, he has,

When you first started, did he, as the

supervisor, have occasion to check your

‘

{

results, your chemical results of evidence?

Yes, he did,

Now, did his results differ from your results?

Not in the final reports, no, sir.

Have you ever had the occasion to examine

Codi: .

substances which purported to be heroin and

ay the results were negitive?

ai Yes, sir.

4 I s uM 7 “4

(BY MR, NOREA:

Si. Your Honor, I tender him over.

§ BY MR. MOULEDOUX:

No questions,

| DIRECT EXAMINATION BY MR, NOREA:

§'Q Have you ever been qualified as an expert in

10 the field before?

1A Yes, I have,

12 !1Q What sections of Court?

13 A All sections of Criminal District Court, |

14 Orleans Parish, Criminal District Court |

15 Plaquemine's Parish and Juvenile Court in |

16 Orleans Parish, |

17 |1Q Have you ever been refused qualifications? |

19 A No, sir,

IS/BY MR. NOREA:

20 TI tender on the predication.

21/RBY MR. MOULEDOUX:

22 No questions, Your Honor.

23||BY THE COURT:

24 All right, I find the witness to be an

25 expert, And as an expert may give an

26 opinion to the jury relative to his

27 analysis of substances, particularly

gualttative ana cuentitative comnosi-=-

\ tion,

‘| Ladies and gentlemen, usually a witness is

4 precluded from giving an opinion to

5 the jury. “hen a witness is found to’

S| be an expert, an exception is made,

ft Therefore, ! find that this witness

| to be an expert, And I am going to

8 permit him to give to you his opinion.

” DIRECT EXAMINATION BY MR. NOREA:

i Q Officer, did you bring any evidence with you to

* Court this mornig?

aa T Yes, I did.

Mia What did you bring? ;

as (Witness produces an enelope. )

- Your Honor, I mark this large envelope for

af identification as S-l,

as Where have you been keeping S-1?

a That has been in the safe at the Crime Labratory,

” Q How long has it been in the safe in the Crime

a Labratory?

22 1 A Since I received it on December 30th, 1976,

23 1Q From whom did you receive it?

24 lA Officer Jimmy Lewis, Narcotic's Division,

a8 Q Describe for the jury the exact condition that |

a8 envelope was in when you first received it?

27 Il a When I first received it, it was sealed, ‘nd it

Pen

Pi, ibaa iat basic

a had been sealed on all openings here with

| the evidence tape that you sec across the

3 | back, And it did not have this tape across

| the front. This is where I sealed it

5 | mllowig my analysis,

big Was there any writing on the envelope when you |

7 received it?

ots Yes. The writing you see on the front was on

9 | here when I received it, I filled it out

” the bottom at the time I received it.

ig What did you do with the envelope after you

i3 received it?

IS A After I received it, we have, well, in the

4 lahvatory, we have an evidence book that we 4

1s log all evidence coming into the labratory,.

16 And I logged this envelope, the contents of

7 this envelope in the book, And then placed

18 it in the safe until the analysis,

91 Q What date did you perform the analysis on?

201 A It was on the tenth of January, '77,

. 2111 Q Okay. And how did you get into that envelope

a3 to find the substance?

23! A I simply made an incision right across the top ,

a of the envelope here, |

251g Officer, would you open that envelope now, please

261 A Sure,

2711 Q {I will mark these S-2, This one envelope cigs

here with the blue, I mean the pink baloon,

& |) Ce ee ° Tad ,

+nis one is 5-3; this other cne is S—4,

Look at 5-2, Did you perform any chemical

| analysis on S-2?

oT A Yes, sir, I did. Where you see my initials

of P, A. next to this small piece of foil, |

H — !

7 | these are the pieces of fdl that 1

5 t

} analyzed, And also on the other. |

Si BY THE COURT: |

10 Give Mr. Mouledoux an Opportunity to ;

i examine the contents before you

proceed, (Counsel complies,)

13 DIRECT EXAMINATION BY MR, NOREA:

14, Talking about S-2, what condition was $-? when

15 you removed it from the envelope?

16 A It was as you see it here, with the exception

17 }- of my initials, It was just as you see it.

18 1Q With respect to S-2, how many papers did you

19 examine off of S-2? |

: 201A I examined five. One from each row; one from |

21 each horizontal row of foil. |

22 11 What was the results, you're finding on those |

23 five? ; |

24a Positive for the presence of heroin, :

25 11Q I will show you what's been marked previously |

26 as S-3, What condition was S-3 when you

37 | removed it from the envelope? |

és

boil sins

“3

As you see it now, with the exception of my

How many ppers off of thet, S-3, did you cxamine?

[, again, I examined one from each horizontal

row.

What were the results of your finding?

Positive for the presence of heroin,

[I would like you to look at S-4, What condition

was S-4 when you found it?

Again, as you see it on the paper, without my

initials,

Did you examine those?

I examined all five of these, yes, sir.

What were the results of your findings?

Positive for the presence of heroin,

How come you didn't examine all of thse papers

on S-2 and S-3?

Laboratory procedure is that we examine a

representative sample, In my case or in my

opinion, a representative sample, random

sample, would be one foil from each row of

foil. And with usually a minimum of four

or five foils per page.

Now, is there any doubt in your mind of the e,

I believe, fourteen papers of heroin that

you sampled out of this whole group, any

doubt in your mind that is heroin?

»1@e

}

MR. WOKLA :

Tender,

MR MOULEDOUX:

No questions, Your Honor.

THE COURT: |

Any further need of this witness? |

MR. NOREA: |

No, sir. :

THE COURT:

You're excused. You may leave,

MR. NOREA:?:

I offer this stipulation to the Defense--

THE COURT: |

No. If you tell the stipulation in Open

Court, it would be, in my opinion, |

a violation of the rules of evidence.|

Call your witness,

MR NOREA:

I call Sheila Myers.

THE COURT:

I will not permit Miss Myers to testify.

MR. NOREA:

Call Warren Keller,

For the record: I would like to call

Jimmy Lewis,

TH COURT: !

£7

oo Bien

&7 aaa

SR RN Te mm en ne errr fn Re mr ee ee ne teens crea ey

‘ -* 7", ” > ‘, a. 9 ‘ an |

‘Ss soOun as tir. Keller takes the stand, I

"t71 have hie name crlied,

8 |

TwADDDW

7ARREN FELLER, who, having been duly sworn

, By the Minute Clerk, testified as follows:

(BY THE COURT:

e All right, Sheriff, step into the foyer and

ask if Jimmy Lewis is present today.

* (The Deputy Sheriff complies with a

negative response, )

” All right, the witness's name was called

i and he is not present in Court or the

8 foyer.

" Okay. Let's proceed,

DIRECT EXAMINATION

Siwy MR. NOREA:

8 Q State yvour name, please?

> 71 A Wa

18 Q How are you employed?

ISA New Orleans Police Department.

20/0 How long have you been employed on the Police

21 Department?

22 || a Six years,

23 Q You assigned to any particular unit now?

24! A Felony Action Squad,

25 Q How long have you been in the Felony Action

26 Squad?

71 A Four years,

4 0

wie

12) BY MR. MOULEDOUX:

144) DIRECT EXAMINATION BY MR. NOREA:

I direct your attention to December 29th, 1976,'

that particular date, who was your eC

Police Officer John Marie, |

Did you have occasion to go to the 3700 block |

of Fern Street? |

Yes, I did,

Officer, for what reason did you proceed to the

3200 block of Fern Street?

On December 29th, early that day, we had spoke

to Detective Raymond Reed of the Robbery

Division, Detective Reed informed--

I object to that,

Q As the result of your conversation with

Detective Reed, what did you do?

A We went to the Girt Town area where 3200 block

ro of Fern is located, to look for a subject,

Lincoln Lewis, wanted for armed robbery.

Q Do you know, was Lincoln Lewis, that's no

Sawyer Lewis; is that right?

A That's right,

23 Q Sign SUS chive. what happened; anything

24 unusal happened? Do you know the name of

25 this bar?

26, A The last place we had seen Lincoln Lewis was the

27 | Streamline Tavern located at 3235 Fern. I

wi da

——e fs

Who was driving?

I was drivim. We were proceeding in a downtown

‘

What

He placed the jacket, just dropped it onto the

this time, approximately 6:30 P. M., we

proceeded to that location. As we drove

up in front of a tavern, several black

— Te -- _-__-

males were standim in front of the tavern,

One subject, in a hurriedly fashion, went |

inside of the lounge. Officer Marie and

myself both exited the vehicle--

direction. The doorway to the lounge was

on Officer Marie's side of the car. We

exited the vehicle and we went inside the

location, AsCIgot inside the locatiop,

inside the tavern, I observed the black _

male that had ran inside the bar standing |

next to one of the booths holding a brown,

leather type jacket in his hand.

—

did he do with that brown, leather type

jacket?

ae”

Now,where was Officer Marie when you saw this

Officer Marie was in front of me, He had went

booth. Walked past me; went to the jukebox

—

which was located to the left of the door-

way.

going on?

into the doorway right before me. And after

“athe

“4

ain. soy oo 1 ee ae

24;/EXAMINATION BY TE COURT:

25 Q

«se

MR.

Yes; I did,

the subject dropped the jacket, Officer

Marie went over to the jacket and picked it

ste

up.

ee |

What did the subject do after he dropped the

jacket?

He dropped the jaket into yo aay Wee

past Officer Marie and myself, stood by thre

jukebox and was leaning against the see i

From what you observed, could you tell if he wa

taking anything from the jacket or putring'

~~ -

anything into the jacket?

No.

When he walked in front of you, did he have

anything in his hands?

No, he did not,

Did you see him put anything in his pocket?

No, I did not, |

Did you recover anything from the jacket ae

(No response by the witness.)

Did Officer Marie?

Yes, sir, he did,

MOULEDOUX:

Objection, unless he saw him do this,

Did you observe Officer Marie examine the

jacket?

o23e

ee ne eee coe

peda —~ —— -—.

F2_ oe

1B PRAM SURE ket ORs CUNT HY™ 1g AST Y NS Oe

Tell us what you observed when you sw him

examine the jacket?

As Officer Marie picked up the jacket, he walked

past me. And he advised me that was a

962, which is the police code fa narcotics).

We approached the subject, Sawyer Lewis,

who was leaning against the jukebox,

identified ourselves as police officers,

took the subject outside to where our

police car was so there wouldn't be any

type of confrontation in the bunge with the

other patrons, As we got by the car, we

frisked the subject for any weapons,

Officer Marie than began a checking the |

jacket for any further evidence. At which

time from the lower,left jacket pocket, he

removed two balloons, the type a child

would play with. One was a pink balloon.

It was tied in a knot at the time. And it

had a contents in it, which, you know,

we hadn't opened at that time. The other

balloon was an orange balloon. It was

ripped open on the bottom. And it contained

later, after we counted them, 19 aluminum

foil en PG Also, in the jacket pocket

were five leose éluniaus foil packages of

which one of them Officer Levin opened up.

ate

eae

And he examined it. And found it to contaiin-

When did he open it?.. He didn't open the balloon,

did he, at that time? |

No. The balloon was already opened much like 1

say, it was ripped open on the side or

bottom area. And you could see inside the

balloon the aluminum packages. Inside the

jacket pocket, there were five loose

aluminum foil packages. Officer Marie

opened up one of these and found a brownish

brown powder which we beligwed to be heroin.

Which pocket are you talking about; do you

remember which pocket?

The lower, left jacket pocket.

Was there anything else besides the balloon of

heroin in that pocket?

Also in the side pocket was a New Orleans Public

Service envelope which contained a utility

and receipt bill in the name of Sawyer

Lewis.

Was there anything else you found in that

pocket?

There was a set of keys, forty-three cents in

change,

Now, did Officer Marie in your presence look ir

any of the other pockets of the jacket?

Checked the top, left pocket. hed inside the

ink Vis

She ee

'Q Did you see the peson in Court holding that

top, left pocket was a Louisiana Driver's

License in the name of Sawyer Lewis, Alsoi,

forty dollars in U. S. currency wrapped

around the driver's license,

coat that he threw down?

A Yes,

Q Would you point him out now to the jury?

A The defendant before the bar,

Q How is he dressed today?

A He has a tan, leather type jacket with what

appears to be a maroon. shirt,

BY MR. NOREA:

Let the record reflect he identified the

defendant, Sawyer Lewis.

DIRECT EXAMINATION BY MR. NOREA:

Q After Officer Marie recovered the evidence,

what did y'all do?..

A We advised the subject Lewis of his rights,

emritiginctii i at 7

placed the subject, we handcuffed him and

placed him in the rear of the police car.

We continued conducting the search of the

ee ee

other pockets after we hai the subject under

—_—_—_—_—

arrest and found nothing in the other

pockets, At this time, we transported thd

subject to the Narcotic's Division, at

Png

which time the evidence was turned over to

ae Sle

241

Officer Lewis.

You turned the evidence over to Officer Lewis? |

Officer Marie turned over the evidence to |

Officer Lewis, |

Was it done in your presence?

Yes, it was.

I show you what I marked for identification as

S-1l. You recognize that envelope?

This is the envelope that Officer Lewis placed

the narcotics in,

Did you see him place the narcotics in there?

Yes, I did.

Did you do anything with the narcotics before it

was placed in this envelope?

We dated and initialled the narcotics in the

presence of Officer Lewis and then turned

it over to him,

Would you describe to the jury how you dated and

initialled the narctics?

How we dated and initialled? It's putting your

initials on the evidence, you put the date

that we received the evidence, In my case,

I used my initials which were W. J. K.

I would like you to look at what has been marked

for identification as S-2. Do you

recognize that?

This is the paper that we initialled and dted.

aff

=2@e

ae 7, oo eee

ao - & PF

=~ #8 F -&

oe emer ee we soe aoe

And this is the evidence, the aluminum

foil packages,

Who opened the pink balloon and put those

packages on the tape?

I opened it, ;

Who put the scotch tape..over those aluminum

foils? bay ete

Narcotic's Division, Officer Lewis.

Done in your presence? ..

Yes, it was,

I would like to show you what's been marked

for identification as S-2. Doyou

recognize that?

This is the orange balloon with the aluminum

foil packages found inside the balloon

which were dated and initialled by myself,

Your initials appears on S-3 also?

Yes, it did,

I will show you S-4,. Do you recognize S-4?

This is the five, loose,aluminum foil packages

inside of the jacket which I dated and

initialled,

What was done with S-2, 3 and 4?

After they were dated and initialled, they

were placed inside of the brown envelope

by Officer Lewis.

Did you observe Officer Lewis seal that envelope?

-20-

26 ||Q

27 | A

Yes, I did.

How did he seal it?

With the red type evidence tag. t

Put these three?

Right.

I show you what's been marked for identification

as S-4, You recognize S-4?

This is the leather jacket that we had taken out

of this Streamline Tavern that I observed

the defendant drop to the booth. This is

the evidence tag that Officer Marie and

myself filled out in the Felony Action

Squad Office, |

This is the same jacket that you saw the ,

defendant? !

That's the tag we placed on it, |

I show you what's been marked for identification

as S-6, Count these keys in with S-6,

These are the keys we removed from the lower,

left part of the jacket pocket. Inside

here is a New Orleans Public Service bill,

electric, for the address of 522 South

Lopez Street, This is the utility bill

for the same address, 522 South Lopez, in

the name of Sawyer J. Lewis.

What pocket was this removed from?

From the lower,left jacket pocket,

-21-

PP Pea: .

~~ © 2} 2

Same pocket that the heroin was removed from?

Yes, it was,

I show you S-7 in globo,

This is the Louisiana Driver's License by the

mame of Sawyer Lewis that we removed from

the top jacket pocket. Inside this envelop

want me to open it?

Yes.

Should be forty dollars in U. S. currency.

I believe one twenty and ten and ten ones,

Now, where did the change come from?

The thirty-four cents was in the lower, left

jacket pocket,

Officer Marie maintained this in his possession

Yes, he did,

What did he do with it?

That was placed on the evidence book at the

Felony Action Squad Office,

These events occur in Orleans Parish?

Yes, it did,

You are positive this is the man that put that

coat down in the barroom that day?

Yes, I am.

When he put that coat down, was there anyone

else around him?

No one else,

Could you tell the ladies and gentlemen of the

sho

6 Bad

oe eee

jury the general layout of the bar at

3235 Fern Street? |

A As you walk in the doorway, to the immediate

left is a jukebox. And there's a bar, I |

guess you would say an L-shape bar, it

starts to your left and it goes down the

floorway. To your right, there's, I think,

it's just two booths and several tables,

- and, I think, they have like a little,

small dance floor,

Q When the defendant put this down in the booth,

was anyone in the booth-table area?

A No, |

Q How would you describe that area, the booth and}

table area, when you observed it with

respect to other people being there?

A There was no one else arcund. They only had

customers at the bar itself,

Q Okay, now, when you observed this coat, was -

other coats in the table area?

A No, there was not,

Q Pardon?

A There was none at all,

BY MR. NOREA:

I tender the witness.

BY THE COURT:

Cross examination,

J O7

=-23-

Bie os .

- - BO

CROSS EXAMINATION

MOULEDOUX:

Officer Keller, when you drove up to the place

how many males were standing out in front |

of it?

They ka several subjects standing in front,

Wat's "several"? Ten?

I would say around four or five,

And what were the lighting conditions at this

time? |

It's fairly good lighting out in front of the

location, :

That was natural lighting from the sunshine?

No. They have, I think, a beer sign that's

lit up. Also, the light.

Between you and Officer Marie, which one went

inside first?

Officer Marie,

An how far behind him were you?

Just a few feet,

Who, between you and Officer Marie, went over

the jacket area first? Where the jacket

was on the booth, who went there first,

you or Officer Marie?

Officer Marie.

And you stated that you didn't see anyone, see

the defendant put anything in the pocket?

-24-

Vie

eee

I seen him folding the jacket. I didn't see hin’

put anything in it, no.

ute ome ~o

You didn't see him put anything in his hands 18

testified earlier?

That's right.

How many people were in the Tavern at the time

you went in?

I have no idea really. I would say anywhere

from ten or more, somthing like that,

Could there have been as many as twenty-five,

forty?

No, I don't think that many.

Not that many. Had you ever seen the defendant

before the evening of the arrest?

Date of the arrest was the first time I seen

the defendant.

Do you regularly work in this district of town?

We work in all areas of the city. We cover the

— = oe

whole city.

}

Do you know anything about the narcotic activity

in this area of a personal mowledge?

Yes, I do,

Is it a narcotic free area or heavy narcotic

area?

It's a heavy narcotic area,

What part of town is this?

This is, as far as police district, it's the

443

-25-

second district. That area is called the

i Girt Town.

|Q What are the general boundarées of Girt Town?

i They have Carrolton Avenue, Earhart Blvd.,

! Washington Avenue and Jefferson Davis, I

t believe cuts through the back.

\9 Who examined the jacket first?

A Officer Marie,

Q Did you watch him while he was examining it?

A Yes, I did.

Q And I think you testified that the evidence that

was shown to you as S-6 and S-7 which was

described as the Public Service envelope

and the keys and the drivers license and

the envelope, the money now in this

envelope, wére found in the left, fmt

pocket? se

BY MR. NOREA:

I object to the question, It's the left,

front pocket,

BY THE COURT:

I think you are testifying.

Be more specific, though.

You can exhibit it if you wish. But do not

testify.

BY MR. NOREA;:

I think they are all up there.

jor

Jo¥€

-26-=-

CROSS EXAMINATION BY MR. MOULEDOUX:

/Q This envelope right here, Officer, which is

marked S-7, That was in S-6, I think it

was the keys and a NOPST bill,zid thm these

items here, this is part of this one here,

I think, this exhibit and this change here,

Where did you find S-6, which will be this

here, the Public Service bill and keys?

A In the lower, left jacket pocket,

Q Where did you find the evidence that is marked

S-7 in?

A In the cop, left jacket pocket,

Q Officer, didn't you testify a few minues ago

you saw S-7 and S-5, it was taken out of

the lower, left pocket?

A No, I did not,

Q Did you just say the left pocket?

A The driver's license and money were foun in the

top, left jacket pocket, |

Q My question is: Didn't you tesitfy earlier cal

found it in the left pocket?

A No, I did not,

BY MR. MOULEDOUX:

Your Honor, could we go back to that part

of his testimony and check what the

Officer said?

BY THE COURT: | ;

SOS

-27-

A O5-¢. :

BY MR.

BY THE

BY MR.

| CROSS EXAMINATION BY MR. MOULEDOUX:

1 Q When did you first search the jacket?

vA I didn't search the jacket at all,

BY MR. MOULEDOUX:

BY THE COURT:

Not at this time, Mr. Mouledoux.

I would rather let the jury rely on

their memory.

Then, again, Your Honor, I want to go back

to another question he answered

earlier,

I think the jury can rely upon their

memory, Mr. Mouledoux, The jury has

paid close attention to the testimony.

The jury will know whether or not it's

been consistent,

MOULEDOUX:

I have no further questions of this

witness, Your Honor,

NOREA:

No further questions,

COURT:

Thank you, Officer. You're excused. Do

not discuss your testimony with anyone,

Officer. Remain outside,

NOREA:

Judge, as far as I'm concerned, he can be

4496

-28-

TAs

excused from the subpoena.

isY THE CouRT:

So PP? 2 & #£ kk. @f

on F- DBD ?P

sworn by the Minute Clerk, testified as follows:

I want this Officer to remain outside,

JOHN F. MARIE, JR., who, having been duly

DIRECT EXAMINATION

‘BY MR. NOREA:

State your name, please?

John F., Marie, Jr.

How are you employed?

Police Officer, New Orlmns Police Department.

How long have you been a Police Officer?

Seven years,

Are you assigned to any™particular units?

¥s, sir, Felony Action Squad.

How long have you been in the Felony Action

Squad?

Since it's inception in September of 1972,

I direct your attention to December 29th, 1976,

did you have a partner on that day?

Yes, sir, Officer Warren Keller,

Same Officer that just testified?

Yes, sir. a '

Now, about six:thirty in the evening, what were

you doing at six:thirty in the evening?

At six:thirty that afternoon, we were going to

a Streamline Lounge located in the 200 block

/O7

=29=

107. ~

| of Fern Street. Went there looking for the

man wanted for armed robbery. '

| |

| Q Tell the ladies and gentlemen of the jury the

i! name of that man wanted for armed robbery?

| |

ria Lincoln Lewis, He is a well known police

‘| character, The last time we stopped

‘ Elna ber he was at the Streamline Bar.

. We got the "wanted out that morning and ,

° understood he was at the Streamline Bar,

— eee

101 Q Did you locate him there?

ia No, we did not, |

121 Q Tell the jury, what, if anything, you know |

8 happened at the time you approached the ;

6 Streamline Bar? |

ol As we were coming into the Streamline Bar, there

8 were several males standing in front of

17 the bar caswilly loitering in the front,

18 As we oukted ce in an unmarked police car,

19 I observed the defendant before the bar, |

‘ 20 Sawyer Lewis, unknown to me at that time, |

a1 just another man in front of the bar, He

a3 looked at our police car and appeared to |

- he excited ahout something, nervous about |

a4 something. He darted quickly into the

2s barroom, 1 was on the passenger's side o

26 the vehicle closer to the bar. t alighted

a7 from my police vehicle and pursued.

/0L

=-30@

Mr. Lewis just to see what he was up to..

As I entered the bar, I observed Mr, Lewis

j .

run to the right side of the bar. At tote Fe

side of the bar, there's one or two booths

and then a partitioned area for tables or

maybe couples, the way the bar is arranged

I observed Mr. Lewis shove something in a coat

———— cae

pocket, a tan looking coat, I observed ag

shove something—in the coat pocket and

look at me in my face, and throw the coat

into the booth and walk right past me,

Where was Officer Keller?

He was in the doorway. He ran behind me when J

told tim, I sdd, "That guy is going for | oe

something." Then, my partner exited the

police car and ran behind him, At that

—

time, he was in the doorway.

—_)

In that particular area, then, Sawyer Lewis

ran, was anyone else in that particular

area of the bar?

That particular area, no, sir, Like I say,

it's a, it's a partitioned area and a couple

of booths and tables and no one at’all in

the barroom was on that side of the bar-

room, The only customers that were in th

barroom were seated at the bar,

Could you describe this area as vacated where

A of Sga3

-“——— eee eee

the defendant was?

| A Yes, sir.

Q What did you do after that, Officer?

4 imme dfatety went to the coat thinking that there

might have been a pistol or contraband or

something. I was more worried for my

—"

safety, so to speak than I was what the

"4 - angele _—

ate had, As I :xamined the coat

Don . he walked right past me,

brie wee" hee his hands to make sure that

his hands were fully exposed, He didn't

have a pistol, I walked to the coat and

inspected the pocket I saw him going inta

As I reached in the pocket, I found two

balbons, Now, these balloons were small

and rolled up and tied, And inside the

——

balloons were some content, One of the

balloons, was a pink one and orange onr?,.

The orange balloon was partially ripped

open, And I could see pieces of tin foil,

It's a common way of packaging heroin and

other narcotics. I also looked in the

pockets and there was five, loose pieces

of tin foil alongwith a Public Service

letter and loose keys and some change,

I immediately retrieved the coat. Nobody

wnt by it except the defendant, I

-32-

| // 0

When

immediately retrieved the coat and went

back to my pe.tner standing in the dcavens

of the barroom and motioned to him to get.

the defmdant, Sawyer Lewis, I told him :

we have a 962, a signal 962, which refers '

to narcotics violations. Because we didn't

want to cause any disturbace, we asked the

defendant to walk outside the bar, which

he did. Placed him on the police car and

frisked him for weapons, I examined these

tin foils which contained a brown powder

which I believed to be heroin,

you got outside of the police car, did you

examine any other pockets of the coat?

I did, I examined the contents which was inside

This

of the left, front pocket where I retrieved

the balloons and paraphernalia.

pocket where you retrieved the balloons and

the Public Service bills, was that the :

top pocket or bottom pocket?

Bottom, left pocket, sir. I believe there was |

four pockets on the jacket, two on the

bottom and two on the top. Upon further

examination of the coat, I found, in the |

top, left pocket, several dollars, about

forty dollars in U. S, currency, and vere

around the driver's license. The driver's

-33<

FES hte :

license was the defendant's driver's

license, Sawyer Lewis had his picture on

it. |

Officer, what did you do after that?

Upon recognizing the powder as what I believed

to be heroin, I advised the defendant he

was under arrest for possession of heroin,

handcuffed him, frisked him and searched

him for any additional contraband or

weapons and placed him in the rear of my

police unit,

What did you do after that?

We transported him to the Narcotic's Office.

Did you maintain the balloons with the heroin i

your possession?

Yes, sir, They remained in my possession until |

I turned them over as evidence in the

Narcotic's Office,

Who did you turn them over to in the Narcotic's

Office?

Detective James Lewis in the Narcotic's Divisio

Did you do anything with the evidence when you

turned it over to them?

We initialled and dated every piece of evidence

I properly tagged the coat and the money

and the Public Service bill. I tagged 01

of that and placed it into evidence,

AAA

atie

]/ 2—

> DBD FF DBD PF fC

> OB PF

I want to show you what's been marked for

identification as S-1, You recognize

this? )

Yes, I do,

What is that?

That's the envelope which Officer Jimmy Lewis

placed our recovered evidence. Officer

Lewis filled out all of this form. We

don't fill out anything here. And it was

sealed by Officer Lewis.

Sealed in your presence?

tes, sir.

I will show you S-2, You recognize S-2?

Oh, yes, sir.

What is S-2?

This is the pink balloon which I mentioned

awhile ago. And this is each piece of

evidence which was in this pink balloon,

That's my initials "J, P, M." And the

date,

Are Jimmy Lewis's initials on there?

Ves, sic. “J. &.”

I show you S-3, You recognize S-3?

Yes, sir. This is the orange balloon which I

previously mentioned and the contents in

that orange balloon at the time. This

orange balloon had been ripped open, and

4/3

= 9 Sea

JI B53 ;

oOo ?» © PP @

there were several other pieces of tin

owas ~< eee - cares <a <=

foil wrapped up. My initlals and the

date,

Whose initials are on there?

Okay. "J. F. M." Those are my initials.

"J. L."” James Lewis. And"W., F, K." its

my partner, Warren Keller,

S-4, you recognize that?

These are the five individual pieces of tin

foil which I found in the coat,

Be mae specific?

In the pocket of the coat.

What pocket?

Left, lower pocket,

In your presence, Officer Lewis placed S-2, 3 and

4 inside of S-1] and sealed it?

Yes, sir, he did,

I show you what's previously marked as S-5,

You recognize S-5?

Yes, sir, I do. This is the coat which I

previously mentioned. You see it has

four pockets. It was in this pocket that

I observed the defendant place something

inside of the pocket quickly.

How close were you to him when you saw him do

this? Were you in pursuit of him at a

time?

-36-

MNT St : |

3 Yes, sir. I was following him directly into the |

} :

barroom, I was about as close from here to ~«

the microphone, About ten or twelve feet,!

: |

What did you do with the coat after?

After he placed something in it, he picked it

up and put it in the booth,

How far was the booth?

Two feet,

Was he standing pretty close to the booth where

he threw the coat?

Yes, sir,

Were there any other clothes in the booth in that

area? ,

No, sir, no clothes at all,

I will show you S-6, You recognize S-6?

Yes, sir. This is the other property that I

found in that same pocket, that lower, left

pocket, thirty-four cents in change, : |

Public Service bill and receipt in this |

envelope and a set of keys, sir.

Anybody's name on that Public Service bill?

Yes, sir. Sawyer J. Lewis, At the address of

522 South Lopez Street,

I show you S-7, You recognize S-7?

Yes, sir, forty dollars in U, S, currency, sir,

which I found wrapped around that Louisian

Driver's License,

S75.

a9 Pas

J15— a a Sw | 2

Q Where did you find S-7?

A In the top, left pocket,

Q Where were you physically when you found S-7?

A Out by my police car.

Q Did you see the person thet you saw throw the !

coat down in Court and put

A Yes, sir, I do,

Q Would you point him out?.

A The defendant before the bar,

BY MR. NOREA:

Let the record reflect: He

Sawyer Lewis,

DIRECT EXAMINATION BY MR, NOREA:

something in it?

pointed out

Q Officer, did these events occur in Orleans

Parish?

A Yes.

Q Were there other patrons there in the bar? Or,

do you know?

A In the bar, but not by the booth,

Q Can you estimate how many people were by the bar

area? |

A At least ten. !

Q Did these events occur in Orleans Parish? |

A Yes, they did, !

BY MR. NOREA:?:

Tender the witness,

CROSS EXAMINATION

——Sr— eee eee

— + ae |

-38-

2/1 Q

“a

5 |

al,

10 Q

12 || a

13 Q

I5]} A

17/9

9 A

~~ 20 || Q

211 A

25 Q

a7|| A

SSSRGgROROR NGA

IBY MR. MOULEDOUX:

Officer Marie, how many people do you think, you

say, were in the bar?

I would say at least ten, sir. The bar was

lined up with customers.

And how many were on the outside when you first

arrived?

Several, maybe five or six people standing on

the outside of the barroom,

Had you had any dealings with the defendant

before?

No, sir, never seen him before.

This area of New Orleans where the Streamline

Tavern is located, where is that? |

It's in what's considered the Girt Town area of

town, |

Carrolton, Earhart, Washington, Jefferson Davis

area?

Yes, sir.

Do you work that area exclusively?

No, sir. I worked the entire city. I use to

work the Second District prior to being

in the Felony Action Squad and worked in

the Girt Town area,

How far behind you was Officer Keller when you

entered this bar or the Tavern?

When I entered the Tavern, he might have been

-39—

[LDS Bap ee

oe eF @&

{

about four or five feet behind me running

in the bar with me. We wanted to make sure,

i .

You know, we work so much together, so often,

he usually knows my moves. When I broke la

ran tward the barroom, he just stopped the

car and followed me,

He had to go around the car? %

Yes, s&f.

What was the reputation as far as you're

concerned as a policeman of the narcotic

activity of this area.

It varies, Let's say the Streamline Bar, for

instance, one month there may be a heavy:

narcotic activity around the Streamline

Bar. Then, it might move around the block

Pine Street, Olive Street, It never stays|

in one block becmse that's the way the

narcotic's people operate..

The Girt Town area is known as the narcotic area

You can classify the city of New Orleans known

for narcotics, sir,

When Sawyer Lewis went for the jacket, did you

see anything in his hands?

No, sir, What was in his hands was concealed

from my view. And I saw him place som thi

inside of the coat, .

, eel

Now, which pocket did he place this something i

110&

-40-

ad:

-_ " Sn es. —--

A It was in the left, front, lower pocket, sir,

,Q Left,

iA The first thing that I picked up was the balloa

Q Officer, have you previously testified at the

A Yes,

CROSS EXAMINATION BY MR, MOULEDOUX:

Q Officer Marie, I would like you to read over th

BY THE COURT:

re iy!

front, lower pocket. Now, you examined

the left, front, lower pocket, What did |

you find in that pocket?

And I found, in my hand, also, when I

removed it, I found loose pieces of tin fa

folded up. At that point, I immediately

held onto the coat, looked over at the

defendant, He was leaning against the

jukebox looking toward me with casual,

nervous type glances, I motioned to my

partner, "Let's get him,"

prelininary hearing in that matter?

I did, sir. Excuse me, sir, I'm not sure

if I testified at the preliminary hearing.

I was there, I believe Officer Keller

testified that day,

contents of this document there?

Lets first find out, after reading, sheen

Or not you recall testifying. Read

the first page, (Witness complies.)

Do you now recall testifying at the.

//9

whG a

preliminary examination, Officer?

BY THE WITNESS:

Yes, sir,

| CROSS EXAMINATION BY MR. MOUDELOUX:

oO Now, Officer Marie,I want to ask you a few

‘ questions about the contents of this

| document. Does this reflect what

: happened at the preliminary hearing?

: A Basically. I see I had a little mistake there.

10 a el Pte —

I must have said at the preliminary hearing

11 —_— _- Vw

which was a right, front pocket. But, it

12 gi RED PR a Rare ie SRRiee ar woe

was the left, front pocket, sir. I'm quite

swe”? a

sure on that,

¥ Q I ask you here in the preliminary hearing, is

5 it not true, from you having refreshed your

- memory, that you sid that the--"I followed

” the defendant into the barroom and observed

_ him run to the right side of the barroom,

ws reach in and grab a coat which was in a

- booth and place something inside of the

ae left, front coat pocket of that coat and

ag discard it into the booth and walk away."

” Is that what you said that night? |

24l A Yes, sir. That's what I testified to this

ee i

- morning.

261 Q "I quickly looked around the barroom, I didn'e

a7 see the man I was looking for ocigtualived

AAO £6:

SOL PLD) HOSED, CON HD S * OOP GSES + CESS Fo MENS. < + OHSS. oe ORES: +S Ore OG en cme oy oe -ee 6. ODS Sy me eee eee & ~

> DBD F- fF

I walked over to the coat knowing no one

had been around the coat other than the

defendant, Quickly looked into the right,

front pocket, figuring that the defendant

in my opinion at that time that the

defendant may have trew a gun in there,"

Is that what you further testified to?

That's what I testified to, sir.

Further upom "I examined the contents of the

right, front pocket*-no, excuse me--"J

examined the contents of the pocket. And

found that it contained two balloons.”

Now, from what you're testifying today and

what you testified at that time, you're

saying in this that you found something in

the right, front pocket; is that correct,

sir?

I found it in the left, front pocket, sir. At

that point, I just made a mistake in my

testimony.

Could you be making a mistake today?

No, I'm not making a mistake today, sir. ; =

prepared for this-ease,

When was the date of that arrest?

Twenty-ninth of December.

What was the date of the preliminary hearing?

Possibly two or three days later.

Jo / ;

. -43- }

Jods:

THE COURT:

You have the document, Mr. Mouledoux?

Se ee ee ee

MR. MOULEDOUX:

THE COURT:

MR. MOULEDOUX:

'CROSS EXAMINATION BY MR, MOULEDOUX:

Was the preliminary hearing on January 4 as

Yes.

Yes, Your Honor,

What was the date of the document?

January 4th,

stated on the affidavit of the reporter?

On January 4th, you said that you found this

Right. Yes, sir,

At anytime did you see anything in Mr. Lewis's

No,

narcotics in the right, front pocket, And

tody you say you found everything in the

left, front pocket except for the money that

was in the upper pocket; is that correct, |

sir?

{

hands other than the jacket itself?

sir. I couldn't tell -what-he-placed intag the

Pome ~

°C

Another question was asked you by the District

Mr. Lewis place something, was there any

pocket,

Attorney at this hearing,sir. Question:

"In the pocket where you observed

JRA

aT ee

[2 A |

that particular pocket?" Answer to that

Statement, you answered: "In that pocket |

there was a small amount of change, about |

thirty-five cents, a wt of keys and the

NOPSI bill in that one pocket, sir."

A Right. Yes, sir,

Q There was no narcotics in that pocket?

4 Yes, sir, alongwith that, My main concern,

sir, was for the narcotics. It wasn't for

the defendant's light bill,

BY MR. MOULEDOUX:

No further questions, |

RE-DIRECT EXAMINATION

BY MR. NOREA: |

Q This coat here, did you find all of the acttetés

here in this coat here? |

A Yes, sir.

Q Is this the coat the defmdant had in his hand?

A Yes, sir,

BY MR. NOREA:

No further questions,

BY THE COURT:

Recross?

BY MR. MOULEDOUX:

Nothing.

BY THE COURT:

other paraphernalia or anything elise in

JAZ

wh ta

MR.

THE

MR.

THE

MR.

MR,

THE

MR.

MR,

THE

Officer, you're excused. Do not discuss

your testimony with anyone, Remain

outside,

NOREA:

I call Frank Ben,

Judge, while Officer Ben is coming in,

I would like to @fer and introduce

as evidence that previously marked

S-l through 7,

COURT:

Offer them by number,

NOREA:

S-1, the brown envelope,

COURT:

Any objection to S-1l, Mr. Mouledoux?

MOULEDOUX:

Yes, sir.

NOREA:

S-2, 3 and 4,

COURT:

I'm going to sustain the objection as to

S-1.

NOREA:

S-2, 3 and 4 contained in S-l,

MOULEDOUX:

Objection to those too, Your Hona,

COURT:

Sade

ies

wae

| As to S-2, the objection is overruled,

S-" is admitted into evidence and TE,’

be viewed by the jury. As to S-3, the

‘i objection is overruled. It may be ;

5 admitted into evidence and may like-~ |

e | wise be viewed by the jury. S-4, the

7 objection is overruled. S-4 is

8 admitted into evidence and my be viewed

3 by the jury.

10/7 BY MR. NOREA:

11 S-5.

12/7 BY MR. MOULEDOUX:

13 General objection,

14/1 BY THE COURT:

15 Overruled, S-5 is admitted into evidence

16 and may be viewed by the jury also,

17 Counsel, pause at this time and start

18 handing the exhibits to the jury.

19) BY MR. MOULEDOUX:

“ 20 At this time, I would like to note my

21 objection to the introduction of this

22 evidence,

23/ BY MR. NOREA:

24 Judge, S-6-- {

25!) BY THE COURT: |

26 Hand the jacket to Mr. Rogers. |

a7) BY MR. NOREA:

/26- gu eae

| SA 3

BS,

S-6 which is marked in globo, it's

thirty-four cents, keys, two Pubdlie

Service bills and an envelope, Public

Service envelope,

THE COURT:

Same objection?

MR. MOULEDOUX:

Yes, Your Honor,

THE COURT:

Overruled, S~-6 is admitted into evidence.

Ladies and gentlemen of the jury, keep S-6

together, It's one, two, three--

MR. NOREA:

I will put them all in this envelope.

THE COURT:

All right,

‘MR. NOREA:

Judge, S-7, which is forty dollars and

Driver's License.

THE OOURT:

Same objection:

MR. MOULEDOUX:

Yes, Your Honor,

THE COURT:

Same ruling. S-7 is admitted into evidenc

and may be viewed by the jury.

Mr. Ben, have a seat, I want the jury to

p soe

=bie

have an opportunity to view the

evidence, (At which time the jury

views the evidence.)

FRANK BEN, who, having been duly sworn by

St he Minute Clerk, testified as follows:

Cc. DIRECT EXAMINATION

7 BY MR. NOREA:

8 Q State your name, please?

9/4 Frank T. Ben,

10! Q How are you employed?

ia New Orleans Police Department, sir.

1211 Q How long have you been employed in that capacity

3 A Approximately twelke years. |

1411 Q Officer, what division are you presently |

5 assigned? !

16} A I'm presently assigned to the Urban Squad |

7 Narcotic Task Force. |

18 BY MR. NOREA: Pes a

19 Your Honor, at this time, the State would

20 attempt to qualify Officer Ben as an

21 expert in the field of track marks.

22 Identifying track marks, habits of

23 narcotic users, prticularly heroin,

24 and narcotic paraphernalia, particu-

25 larly heroin. | |

26] BY THE COURT:

27 All right.

127 ee

)29 n : }

)

~ BO? 2 seis

i DIRECT EXAMINATION BY MR. NOREAS

Sir,

What

La)

you ever work undercover?

Sir,

tne ladies and gentlemen of the jury the

extent ef your undercover work?

sir. I worked undercover in the Metropoli-

tan area in 1966 through 1970. During th

period of time I aKa engaged by the Polic

Department and Bureau of Narcotics and

Dangerous Drugs to enter into the drug

community of this city and attempt to mak

purchases of elicit drugs, heroin,

barbituates, amphetamine and marijuana,

During that period of time, I make perhaps

six hundred cases,

years did ths entail?

"66 through '70, sir,

Have

Yes,

Have

Yes,

Have

you ever bought heroin on the street?

sir, I have,

you ever observed heroin addicts use noted

sir, I have,

you ever observed the results on their arms?

MR. MOULEDOUX:

I object to this line of questioning on

this witness because of the fact tha

not a word was brought out on this

point of this man being a heroin syaice

JAP

-50-

Th We A

a ee oe

‘

a FF £4 >}

> © Ff 2 Ff? £

Or user or anything else in connection

with this particular case,

Overruled,

MOULEDOUX:

Note my objection,

_DIRECT EXAMINATION BY MR. NOREA:

You ever observe track marks?

Yes, sir, I have.

How many occasions have you observed track marks?

I see track marks on a daily basis.

Have you ever observed someone prepare to shoot-

up heroin?

Yes, sir, I have.

How many occasions have you seen this?

I will say quite a few times,

You ever actually seen people shootup heroin?

Yes, sir.

You know how many times you have seen that?

I would say in excess of two hundred times,

EXAMINATION BY THE COURT:

What causes trak marks, Officer Ben?

BY THE WITNESS:

Track marks are caused, Your Honor, by the

constant introduction of any foreign object

into a vein on the human body.

DIRECT EXAMINATION BY MR, NOREA: i

fag

~Ste 08

Wed nae SSE

Have you ever observed upper echelon dealers

preparing heroin to distribute?

7689, ° 8it, Tt Have,

How many occasions did vou cbserve that?

I would say better than fifty times, sir. ,

Officer, have you received any special training

in narcotics and drug abuse?

Yes, sir, I received my training first from

Sergeant Giarrusso who's now Superintendant

of Police; Major Koch, who's the man in

charge of the New Orleans Police Department

Crime Lab, I also attended the Bureau of

Narcotics nak tuanadais Drugs School for

their agents, which is a Federal Arm of

Drug Enforcement here in the United States,

More importantly, I have been trained by

the people, the addicts and the distributors,

themselves, while in the undercover capacity

on the streets of New Orleans.

Officer, have you ever been qualified in these

fields before?

Yes, I have,

Where have you been qualified in these particular

fields?

All sections of Criminal Court in the Parish o

Orleans and all sections of the United

States Courts, the Eastern District. I

lato

-52<

7 |

e |

w& lave you ever been refused qualifications in an

Court?

‘A No, sir, I have not.

Q You have seen it packaged in tin foil packages?

have been qualified in the states of

New York, New Jerssyy,-mee recently in the

state of Missouri.

BY MR. NOREA:

Tender the witness on the predicate,

BY MR. MOULEDOUX:

No questions,

EXAMINATION BY THE COURT:

Q Officer, have you seen addicts do-up by

injecting heroin in their arms?

BY THE WITNESS:

Yes, I have,

Q Have you spoken with addists after they do-up?

A Yes, sir. |

Q Addicts point out to you needle marks or track

marks which occur as a result of needle

marks in their veins or their arms?

BY THE WITNESS:

4 IT have seen it, sir, mae or less directed to the

point of injection by addicts in the past,

Q Have you seen heroin packaged for distribution?

A tT have seen it packaged in several different

ways in the past eight years,

S8/

ray fy

JL 37 : a ‘

iA Yes, sir. More recentiy in the past three and!

— ns

2a half veers,

Q How about gelatin capsules?

A They go back to the period between '66 and ‘67,

The papers, which was the cellophane

envelope, peanut bag, were more prevalent

in the later part of '67 and '70. That

Save way to the balloon for a short period

of time, and then the tin foil.

Q What is a bundle?

A A bundle is twenty-five dose units of heroin

packaged together and sold usually wholesale

Q When you say, "a dose," you mean something

commonly called a paper?

A Yes, sir. |

EXAMINATION BY THE COURT: |

Q Something packaged in a tin foil package today?

BY THE WITNESS:

A Yes, sir, approximately three of the double

zero capsules were sold sometime ago. Three

of those would go to one paper. That ae

be the approximate equivalent.

Q How is the bundle usually packaged?

A Presently a bundle is packaged into the tin foil

packets placed into another carrier, a

matchbox, piece of cellophane, something.

BY THE COURT: :

AFR

ere.

VAS Tide Wig | |

, DIRECT EXAMINATION BY MR. NOREA:

It being submitted, I find the witness,

Frank Ben, is an expert in the field

of narcotics. And as an expert, I

will permit him to give an opinion to

the jury which may be opinion testiqo.4

mony in* the field in which he is

found to be an expert,

Officer, what are track marks?

THE COURT: °

He just answered that,

MR. NOREA:

I would Like him to examine the defendant

to see if the defendant has any track

marks,

MR. MOULEDOUX:

I object to that,

THE COURT:

Overruled,

MR. MOULEDOUX:

Note my objection,

THE COURT:

Remove your jacket, Mr. Lewis. Stand up,

give Mr. Ben an opprtunity to view

both arms. (Defendant complies.)

Thank you, Mr. Lewis, Remain at the Counsel

. i mr

table.

L338

in $ San

D909 aa

BY MR.

Mr. Ben have a seat at the witness table.

EXAMINATION BY MR. iOREA:

Officer, what was the result of your finding?

No active hypodermic needle marks on the

defendant,

How about inactive?

Only one questionable section on his arm.

‘

Sir, in your professional opinion, the defendant

is not a narcotic--

BY THE COURT:

No. Do not ask the question,

What is your professional opinion as to

whether or not the defendant is

addcted to the use of heroin?

BY THE WITNESS:

At this time, I would say that the man is

definitely not addicted to heroin,

MOULEDOUX:

I would like to further note my objection

to this whole line of questioning and

note my objection for the record,

BY THE COURT:

Overruled,

DIRECT EXAMINATION BY MR, NOREA: i

Officer, what would you say if I told you that

the defendant was found to be in pessecelaa

of S-2, 3 and 4? Zi would like you to look

Ish

336.

| I don't think that's permissible. We wi

i have a recess, Remain seated, eet

and gentlemen. Have a seat. We will

! recess and speak in chambers.

‘COURT RECONVENES:

| BY THE COURT:

Let's proceed,

DTRECT EXAMINATION BY MR, NOREA:

Q Officer, let me pose a hypothetical question to

you: A person with no track marks--

BY MR. MOULEDOUX:

I object.

BY THE COURT:

Ce dee <a one

I sustain that objection,

BY MR. NOREA: |

Your Honor, it's a hypothetical question, |

BY THE COURT: |

I feel it goes to an issue which the jury

must decide and will not permit an

expert to testify as to that pereecutell

question,

DIRECT EXAMINATION BY MR, NOREA:

Q This hypothet: If one is in possession of

forty-nine individual dosage units of

heroin, would that be any individual

/3S

=SPe

conclusion you draw from that?

MOULEDOUX:

I object to that.

“SY THE CouRT:

Sustained,

_ DIRECT EXAMINATION BY MR, NOREA:

oOo F- LD ?P

What's the normal amount of heroin that a heroi

addict would have in their possession at

one time?

Only the quantity he is going to use at that

over two units, he will have tw units in

his possession, It's very rare that he will

have more than that,

What is the cooker?

A bottlecap used to dilute the heroin prior to

injection,

Normally, how much heroin is put in a cooker

prior to injection?

That depends on the addict,

What's the normal amount?

It's three things; that's three dose units.

Let me ask you something: What's the street

value of a dosage unit of heroin, the

retail value?

The retail value now is between twelve and

fifteen dollars,

[26

particular point. If he is going to cook

| Q That's for each individual piece of paper?

i A That's correct,

Q How is heroin sold in the wholesale?

“holesale right now fluctuates betwen a hundred

and fifty, in some places downtown as high

as two-o-five for a buntile.

) How much is the bundle you have?

A Twenty-five dose units,

in the bundle form?

A Sometimes it's heat sealed in a small cellophane

How is twenty-five dose units normally packaged

envelope, I have seen it put in oe.

seen it wrapped in the cellophane from the

cigarette packs tied off at the top,

Anywhere they can package it, they will

put it.

People that transport heroin in bundles, twenty-

five individual dosage units, how would you

categorize their participation in the

drug market, wholesde or retail?

part will be a wholesaler. The man that

would be at the street level with this

Quantity would usually.be one of two

things, a person that's addicted himself,

what is called a street level addict

distributor or have a pure distributor

J3 7

~S9o

ye Ne Ee ep te a

A man dealing primarily in bundles for the most

}

ree >

oOo F- CO PY

s the difference becween a street level

addict distributor and a pure distributor?

s the difference between an addict street.

level distributor and pure street level

distributor?

An addict distributor is a man that usually with ~

a habit himself. He has a habit, and the

only way that he can support that habit is

by coming onto the streets of our city and

selling heroin to support himself on the

drug. A pure distributor is a man that is

there for the monetary gain. He doesn't

use heroin. He only frequents the area

where he knows he can sell it. And he only

gets the profit off of it. He is not doing

it because he is sick. He is not doing it

because his body is going to crave it. He

is doing it as a living.

In the marketing dmin of heroin, what's the chain

Yes,

What

That

In what quantities is wholesale distributors of

immediately above the street level distribu-

tor? Does that have any particular name? .

sir.

_—

is that?

would be your wholesaler,

/ IF

13 fF

They

That

When

By then, it's in the tin foil packages.

@rugs dealt with?

have two levels of wholesale. They have

the wholeseler who deals strictly ia

bundles, That is the stuff already ssiuced

snd ready for street use, |

<crm is that; already diluted and ready for

street use? !

is packaged in the bundle, twenty-five

dosage units, In other words, you hve the

man who's going to deal in spoons, regular

table spoons, of heroin or teaspoons of

heroin and ounces, which ts called pieces.’

This stuff is usually a little more potent

than street level, It can be cut one time.

By "cut" I mean diluted one time or more

depending on the strerth of that particular

wholesale person,

heroin gets down to the street level, to

be sold on the street kel, what form is

that; how is it packaged?

Twenty-five of those tin foil packets are a

Yes,

And once again, what's the street value of a

The street value is right around three tundred

bundle; is that correct?

sir,

bundle right now?

(39

=6t~

7) DIRECT EXAMINATION BY MR. NOREA:

"SY THE COURT:

dollars if yvou're going at twelve dollars

an bas. |

For someone in possession of fifty papers of |

heroin--

No. That's not going to be permitted,

What's the most an addict will maintain in his

possession for his own personal use?

Just about what he is going to cook with.

And he is usually going with it directly ches

the person that he has scored with to a |

cooker where he can inject his drugs,

Why doesn't a person who is gdng to keep heroin

for their own personal use keep more chan]

what he is going to go to the cooker with?

For three reasons, Number one: If he has the |

drugs he stands a very good chance of being

jacked for it. |

What is "jacked"?

That's robbed by another addict who will put a

gun on him and take his drugs. Number two:

He has to fear police informants who might

know he has the drugs and call the police

and tell the police that he has it. And

it and he is uct using it himself, the othor’

J) po

LOC ao ae

| BY

MR.

THE

MR.

THE

MR.

THE

MR.

distributors are going to be very very

leary of him and decide he is most likely’

either a police or informant,

HHOREAS

No further questions,

MOULEDOUX:

No questions,

COURT:

All right, Officer. Thank you. Step |

down and remain outside,

Any further need of this witness?

NOREA:

No, sir.

COURT:

(At the conclusim of lunch recess.)

Mr. Norea, ready to proceed?

NOREA:

At this time the State rests,

COURT:

Evidence for Defense?

MOULEDOUX:

At the time, the Defense rests.

* * *~ *

(No objections noted by Counsel for

Defense during closing argument or

to the jury charge.)

* * * *

/ f/

ay te

Paget. iste

SERLIETECATE

IT, ELLIS M. GILL, Official Court Reporter,

Criminal District Court, Parish of Orleans, State

S5;cf Louisiana, Section "A", case entitled and numbered

State of Louistana versus Sawyer Lewis, case number

7,257-998, hereby certify that the foregoing pages of

| i

8 transcript is a true and correct copy of my shorthand

notes done to the best of my ability and understanding.

gbla fl Lyi

“Ellis M.“Gill

Official Court Reporter

Se Ete

_ a.

—

erty

—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOSER TERM, 198

» @9-6514

SAWYER LEWIS,

RECEIVED

APR 30 It

OFFICE OF THE CLERK

SUPREME COURT, U.S,

Petitioner,

THE LOUISIANA STATE PENITENTIARY,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Pursuant to Rule 53(1) of the rules of this Court,

petitioner, Sawyer Lewis, asks leave to file the attached

Petition for a Writ of Certiorari to the United States

Supreme Court without prepayment of costs and to proceed

in forma pauperis. The petitioner's affidavit in support

of this motion is attached hereto.

por 1980.

aes sed

Dated April 2

SAWYER’ LEWIS, Petitioner

GARON, BRENER & McNEELY

1304 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

(5Q4) 581-9322

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980 RECEIVED

APR 30 1980

NO ~ OFFICE OF THE CLERK

¢ se: - 65 1 SUPREME COURT, U.S.

SAWYER LEWIS,

Petitioner

THE LOUISIANA STATE PENITENTIARY,

Respondent

AFFIDAVIT IN SUPPORT OF PETITION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, Sawyer LEWIS, first being duly sworn according to

law, depose and say that I am the petitioner in the above

entitled cause, and, in support of my application for leave

to proceed without being required to prepay costs or fees,

state:

Because of my poverty, I am unable to pay the cost

of said cause.

I am unable to give security for the same.

I believe that I am entitled to the redress I seek in

said cause.

This review is sought in good faith.

The nature of said cause is briefly stated as follows:

I was denied reasonably effective assistance of retained

counsel in the defense of a matter which ultimately resulted

in my receiving life imprisonment.

SAWYER LEWIS

Sworn to and subscribed before me

thi EY ag of Ont , 1980,

EZOU, NO LIC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.