# Petition — Lewis v. Louisiana State Penitentiary > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2677%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 810 ## Text 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 ae 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 # 4 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 V. 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 — ee ree Building New Orleans, Lovisiana 70112 (504) 581-9322 Attorney for Petitioner othe le 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 /o a 2a / 6: PRECEDING PAGE WAS BLANK | oe 1 CONTENTS | »EFENSE WITNESSES | George E. Mouledoux 4 || 5’ Sawyer J. Lewis 6) 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 — ? - 24 f MR. duly sworn by the Minute Clerk, testified as follows: BY MR. BE7OU: Q 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: A Retained by Mr. Lewis to represent him. 74 whe L4 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 20 eee > 27 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 Q A Q 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 ad oe . 27 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 A3 27 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 of 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 | 2s 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 a7 =i te ao 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 4) 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 AF -13 ? Fo THE COURT: BY THE WITNESS: A THE COURT: DIRECT EXAMINATION RES JMED BY MR. BE7OU: Q THE COURT: DIRECT EXAMINATION RESUMED BY MR, BE7OU: Q 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 PF 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? JS -20 > 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: so nn ee = 27 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= 5b WA _ = MR. BE THE CO MR. NO THE CO sworn BY MR, Q A Q A Q A Q preliminary examination and e 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? Fx nS Pu 4a duly ws: ish rt? a 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. JF =3$8- K3 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 IS -40- 62 eg ! | i | | | | | 27 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, Q 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? o7 ~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? T ! } 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? : SF o4$ee 6s «$0 ? iC oa tn 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 TZ 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 ff 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. aa \ 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 o 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" — 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 7 18 19 20 ‘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 i 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 10 * * * * || -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 26 27 | | -2- 62 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: i 5 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, V/ So FF» © F ® 37 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 ae 8 | A 9 lg 10 ll 12 13 A 14 Q 15 A 16 17 Q 18 19 20 |} A 21 Q 22 23 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, | i { | 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 ! | i | | | | ' ‘ { | j i | | | | | | | 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 aa 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: I §'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 GY 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 45 Pen 65 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 dy 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 i | 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. | i Si BY THE COURT: | | 10 Give Mr. Mouledoux an Opportunity to ; i examine the contents before you ! 12 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 rw ve or “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? IS »1@e } j } | | | 6 BY BY BY BY BY BY 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: wm (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, 14 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, fo 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 9/ wi da ——e fs Who was driving? I was drivim. We were proceeding in a downtown i i st ‘ 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 | 7 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 7A “athe . “4 © ain. soy oo 1 ee ae BY 24;/EXAMINATION BY TE COURT: 25 Q 26 «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 ii past Officer Marie and myself, stood by thre jukebox and was leaning against the see i s 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 v 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 to \ \ | 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. Ag ate eae Q And he examined it. And found it to contaiin- | When did he open it?.. He didn't open the balloon, i 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 P} 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 el subject to the Narcotic's Division, at Png which time the evidence was turned over to Ge ~ ae Sle FE 241 27 | | | 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 \y 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, a -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 VE 6 Bad oe eee 25 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, P J O7 =-23- Bie os . 24 - - BO NM 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? V4 -24- Vie | eee - g 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 t 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- 27 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-¢. : 24 27 BY MR. 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 es 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@ of 27 | | 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 —" 27 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 Ve -32- | // 0 27 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 V1 -33 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 ; ee 24 27 oOo ?» © PP @ there were several other pieces of tin owas ~ 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: Q 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, os Attorney at this hearing,sir. Question: "In the pocket where you observed 2 JRA aT ee [2 A | 25 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 27 ~~ 3 BY BY BY BY BY BY BY BY BY 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 re 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, BY BY BY BY BY BY BY 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 2b 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 : } ) 24 ~ BO? 2 seis Q BY i DIRECT EXAMINATION BY MR. NOREAS Sir, What ai 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 : j ' ' ‘ 27 42 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: Q What causes trak marks, Officer Ben? BY THE WITNESS: A 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 i Wed nae SSE 27 4D ' ~ 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 | 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, i / IF aa 13 fF nm 4 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, | 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 third: If he has the drugs and stock piles © it and he is uct using it himself, the othor’ J) po yt LOC ao ae | BY BY BY BY BY 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 os ' 7,257-998, hereby certify that the foregoing pages of | i 8 transcript is a true and correct copy of my shorthand 10 11 14 17 19 20 22 25 27 notes done to the best of my ability and understanding. gbla fl Lyi “Ellis M.“Gill Official Court Reporter Se Ete _ a. — erty a aN pS ae x B — 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 V. 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: he Because of my poverty, I am unable to pay the cost of said cause. a. I am unable to give security for the same. a I believe that I am entitled to the redress I seek in said cause. 4. 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. © Aveo SAWYER LEWIS Sworn to and subscribed before me thi EY ag of Ont , 1980, EZOU, NO LIC --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2677%3A1. Public record. Not legal advice.