Opinion
2015 CA 1648
06-15-2016
STATE OF LOUISIANA v. PROPERTY SEIZED FROM ERIC HAMILTON $12,040.00 IN U.S. CURRENCY AND 1978 CHEVROLET CAPRICE VIN #1N47L8S128460
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Plaintiff-Appellee State of Louisiana Eric P. Hamilton Angola, Louisiana Defendant-Appellant Pro Se
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2011-13010, DIVISION B, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE AUGUST J. HAND, JUDGE Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Counsel for Plaintiff-Appellee
State of Louisiana Eric P. Hamilton
Angola, Louisiana Defendant-Appellant
Pro Se BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Defendant-appellant, Eric P. Hamilton, appeals the trial court's judgment that grants relief to plaintiff-appellee, the State of Louisiana, pursuant to its petition for an in rem forfeiture of property seized by the St. Tammany Parish Sheriff's Office (STPSO) under the provisions of the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989. We affirm.
See generally La. R.S. 40:2601-2622.
BACKGROUND
Defendant was found guilty by a unanimous jury of one count of possession of 400 grams or more of cocaine, a violation of La. R.S. 40:967F(1)(c). See State v. Hamilton , 2012-1305 (La. App. 1st Cir. 11/1/13) (unpublished opinion), writ denied, 2013-2664 (La. 6/20/14), 141 So.3d 285. In the early morning hours following his arrest, property consisting of $12,040 in cash and a 1978 Chevrolet Caprice were seized. Defendant was provided with a Notice of Pending Forfeiture. Thereafter, defendant made a claim for return of the property.
See La. R.S. 40:2608.
See La. R.S. 40:2610.
A trial was held on the State's petition for forfeiture in rem in which testimonial and documentary evidence was adduced. On May 13, 2015, the trial court rendered judgment with incorporated reasons, concluding that the $12,040 in cash and the 1978 Chevrolet Caprice should be forfeited as requested by the State. It granted the State's petition and ordered that the State have clear title to the forfeited property, specified distribution of the proceeds of the forfeited property, and assessed court costs to defendant. Defendant appeals.
In conformity with the State's prayer, the trial court ordered that after reimbursement of the costs of investigation and costs of the clerk of court, the proceeds of the forfeited property be allocated 60% to the STPSO; 20% to the St. Tammany Parish Criminal Court Fund; and 20% to the District Attorney's Office for the 22nd Judicial District. See La. R.S. 40:2616.
DISCUSSION
La. R.S. 40:2604 provides in pertinent part:
The following property is subject to seizure and forfeiture as contraband, derivative contraband, or property related to contraband under the provision of Section 4 of Article 1 of the Constitution of Louisiana:La. R.S. 40:2612A provides:
(1) All controlled substances, raw materials, or controlled substance analogues that have been manufactured, distributed, dispensed, possessed, or acquired in violation of R.S. 40:961 et seq.
(2) All property that is either:
(a) Furnished or intended to be furnished by any person in exchange for a controlled substance in violation of R.S. 40:961 et seq.
(b) Used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, provided that a conveyance subject to forfeiture solely in connection with conduct in violation of R.S. 40:961 et seq. may be forfeited only pursuant to the provisions of this Chapter.
(3) Proceeds of any conduct giving rise to forfeiture.
A judicial in rem forfeiture proceeding brought by the district attorney pursuant to a Notice of Pending Forfeiture or verified petition for forfeiture is subject to the provisions of this Chapter. If authorized by law, a forfeiture shall be ordered by the court in the in rem action.Louisiana Revised Statute 40:2612G provides:
The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause. In a forfeiture case wherein no claim is timely filed pursuant to the provisions of this Chapter, the burden of proof to forfeit shall be probable cause. In a forfeiture case, wherein a claim is timely filed pursuant to this Chapter, the burden of proof required to forfeit the defendant's property shall be a preponderance of the evidence.
When a claim is timely filed, as here, the State has the burden of proving by a preponderance of the evidence the connexity between the seized property giving rise to the forfeiture and illegal drug activity. State v. Bell , 2010-0583 (La. App. 1st Cir. 10/29/10), 48 So.3d 1253, 1255-56, writ denied, 2010-2629 (La. 1/28/11), 56 So.3d 962. A preponderance of the evidence means evidence of greater weight or evidence which is more convincing than that offered in opposition. Id., 48 So.3d at 1255.
It is well-settled that a court of appeal may not set aside a finding of fact by a trial court in the absence of "manifest error" or unless it is "clearly wrong." Stobart v. State , 617 So.2d 880, 882 (La. 1993). First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and second, the appellate court must further determine that the record establishes the finding is clearly wrong (manifestly erroneous). Id. (citing Mart v. Hill , 505 So.2d 1120, 1127 (La. 1987)).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. Stobart , 617 So.2d at 882. It must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.
Here, the trial court's factual findings were that the $12,040 was furnished or intended to be exchanged for drugs, or used or intended to be used in connection with drug trafficking. This finding was supported by the testimony of Detective Jason Prieto of the STPSO, and therefore is not manifestly erroneous. Thus, the record supports the conclusion that the $12,040 was contraband subject to forfeiture. See La. R.S. 40:2604(1).
The trial court also found that the 1978 Chevrolet Caprice was used or intended to be used in connection with drug trafficking. Again, Detective Prieto's testimony supports this finding and, therefore, it is not manifestly erroneous. See La. R.S. 40:2604(2)(b); see e.g., United States v. One 1984 Cadillac , 888 F.2d 1133, 1138 (6th Cir. 1989) (finding a sufficient nexus exists when a vehicle transported an individual to the scene of an attempted drug transaction).
Much of defendant's complaint on appeal is targeted at inconsistencies in written allegations, signed by Detective Prieto, set forth in: (1) the underlying probable cause determination used by law enforcement to support the charge of a violation of La. R.S. 40:967F(1)(c); (2) the notice of pending forfeiture served on defendant on March 16, 2011; and (3) the affidavit for the warrant of seizure submitted to a judge on March 17, 2011. Defendant urges that the trial court erred in discounting the written allegations, suggesting that the written allegations established that the cocaine and the money were found on his person. By accepting Detective Prieto's trial testimony that the money was found in the confidential informant's vehicle while the cocaine was found in defendant's vehicle, defendant maintains the trial court erred.
See La. R.S. 40:2606C.
We first note that the probable cause determination used in defendant's criminal conviction proceeding was not admitted into evidence. Thus, we are not able to review its specific contents. But Detective Prieto admitted it had "some mistakes," presumably factual in nature, for which he bore the fault because he failed to read over the probable-cause sheet before signing it after a fellow officer filled it out.
Insofar as the notice of pending forfeiture and the affidavit in support of the warrant of seizure, some of the written factual allegations are not in conformity with Detective Prieto's in-court testimony. In particular, as defendant has pointed out, these two documents state that the $12,040 currency recovered at the time of arrest was on defendant's person rather than in the confidential informant's vehicle as Detective Prieto testified at the in rem forfeiture trial.
Detective Prieto testified because of the multi-agency nature of this controlled delivery, time was of the essence. He explained that the confidential informant had been stopped on Interstate 10 in West Baton Rouge Parish and found with four kilograms of cocaine in his car. The confidential informant advised authorities the shipment was to be delivered to Slidell, Louisiana, to two individuals, including defendant. The confidential informant agreed to cooperate with law enforcement and, as a result, STPSO became involved. According to Detective Prieto, over twenty law enforcement individuals participated in the controlled delivery. Detective Prieto testified that at the conclusion of an investigation, there is a lot of paperwork, especially if property is seized. To avoid overloading a single individual, other officers assist in filling out the paperwork. In this case, the fellow officer who assisted Detective Prieto simply erred in his understanding of the allegations.
The trier of fact was free to believe the testimony of Detective Prieto in whole or part. See Pennison v. Carrol , 2014-1098 (La. App. 1st Cir. 4/24/15), 167 So.3d 1065, 1076, writ denied, 2015-1214 (La. 9/25/15), 178 So.3d 568. Because we cannot say documents or objective evidence so contradict Detective Prieto's story, or that his story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, see Stobart , 617 So.2d at 882, we are duty bound to uphold the trial court's decision to give more weight to Detective Prieto's version of the facts over defendant's.
We find no merit in defendant's complaint that Detective Prieto's testimony supporting the forfeiture of his property was dependent on the hearsay comments of the confidential informant. Defendant failed to object to the testimony as hearsay. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Arnaud v. Scottsdale Ins. Co., 2014-1809 (La. App. 1st Cir. 9/18/15), 182 So.3d 97, 103. Moreover, because defendant was precluded from denying the essential allegations of his conviction for possession of 400 grams or more of cocaine under La. R.S. 40:2012E, see State v. Hamilton , 2012-1305 (La. App. 1st Cir. 11/1/13) (unpublished opinion), any error in the admission of any hearsay evidence was harmless insofar as the trial court's conclusion that the State was entitled to an order of forfeiture of the property. We also point out that the identity of the confidential informant was known to defendant. Thus, he was free to call the confidential informant to testify to any facts that defendant believed were different than those established by Detective Prieto's testimony.
Accordingly, a reasonable factual basis exists to support the trial court's conclusion. As such, we cannot say the trial court's decision was manifestly erroneous.
We also find no merit in defendant's assertion that the notice of pending forfeiture created a contract between him and Detective Prieto, as the signing officer. Defendant reasons that the "contract" necessarily limited the evidence the State was permitted to introduce to that stated in the narrative of the conduct giving rise to the seizure of the $12,040 and the 1978 Chevrolet Caprice.
The State's petition for an in rem forfeiture of defendant's property clearly and concisely averred, "[t]he [$12,040] in U.S. Currency was retrieved from the center console of the confidential informant's vehicle." Thus, as of the date he was served the State's petition, filed on May 25, 2011, through December 2, 2014, the date of the trial on the merits, defendant was apprised that the State intended to prove the currency was retrieved from the confidential informant's vehicle rather than from defendant's person. Defendant had over three years to prepare his defense in light of the State's written allegations. There was no error on this basis. See generally La. C.C.P. art. 891 (the petition shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation); see also Springer v. Nannie O'Neal Apartments , 2013-570 (La. App. 3d Cir. 11/13/13), 125 So.3d 606, 608 (a competent petition fairly informs the defendant of the general nature of the cause of action and alleges facts sufficient to allow the defendant to prepare a defense).
Defendant complains that he was not afforded the opportunity to confront the witness who testified against him. He contends that the officer who assisted Detective Prieto by filling out the factual allegations contained in the probable-cause sheet used in the criminal conviction proceeding and the notice of pending forfeiture should have testified. This failure, defendant maintains, is fatal to the order of forfeiture of his property to the State.
We note that both in the U.S. Const. Sixth Amend, and La. Const. art. I, § 16, the right to confront a witness accusing a defendant is expressly limited to the context of a criminal prosecution. But more importantly in this civil proceeding, as we have already explained, the petition for an in rem forfeiture of defendant's property fairly and completely apprised him of the State's allegations against him more than three years before the matter went to trial. Thus, the written allegations, contained in the probable-cause sheet and notice of pending forfeiture prepared by an officer who did not testify, were not the averred basis of the allegations against him. And while the trial court may have chosen to weigh the discrepancies between the written assertions in the probable-cause sheet and notice of pending forfeiture against the State, it did not. Instead it accepted Detective Prieto's explanation, which was within its province to do. See Stobart , 617 So.2d at 882-83. As such, it was the written allegations contained in the State's petition of in rem forfeiture that gave rise to the testimonial evidence the State intended to use against defendant in support of an order of forfeiture of his property. The witness who supported the State's case, Detective Prieto, was confronted and cross- examined by defendant. Thus, the trial court's conclusion allowing for a forfeiture of defendant's property is not erroneous.
To the extent that defendant contends he was unable to confront the confidential informant, in the context of this civil proceeding, nothing precluded defendant from calling that individual to testify, as we have already indicated. Defendant's failure to do so is imputable to him. --------
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed to defendant, Eric P. Hamilton.
AFFIRMED.