Opinion
2015 KA 1144
02-10-2016
STATE OF LOUISIANA v. KENDRICK TAYLOR
Warren L. Montgomery District Attorney Covington, Louisiana Nick Noreia Assistant District Attorney Franklinton, Louisiana And Matthew Caplan Covington, Louisiana Counsel for Appellee State of Louisiana Andre R. Belanger Baton Rouge, Louisiana Counsel for Defendant-Appellant Kendrick Taylor
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 13 CR4 123032, DIVISION "F," PARISH OF WASHINGTON STATE OF LOUISIANA HONORABLE MARTIN E. COADY, JUDGE Warren L. Montgomery
District Attorney
Covington, Louisiana
Nick Noreia
Assistant District Attorney
Franklinton, Louisiana
And
Matthew Caplan
Covington, Louisiana Counsel for Appellee
State of Louisiana Andre R. Belanger
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Kendrick Taylor BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. Disposition: CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED, AND REMANDED FOR RESENTENCING. CHUTZ, J.
Defendant, Kendrick Taylor, was charged by amended bill of information with possession of a schedule II controlled dangerous substance (cocaine) between 28 and 200 grams, a violation of La. R.S. 40:967(F)(1)(a). He pled not guilty and filed a motion to suppress, which was denied by the trial court. Following a jury trial, defendant was found guilty of the responsive offense of attempted possession of cocaine between 28 and 200 grams, a violation of La. R.S. 14:27, 40:967(F)(1)(a), and 40:979(A). The trial court sentenced defendant to fifteen years at hard labor. The state filed a habitual offender bill of information alleging defendant to be a second-felony habitual offender. Defendant later stipulated to the contents of the habitual offender bill, and the trial court adjudicated him a second-felony habitual offender. Accordingly, the trial court vacated the previously imposed sentence and resentenced defendant to twenty-two years at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging six assignments of error. For the following reasons, we affirm defendant's conviction and habitual offender adjudication, but we vacate his habitual offender sentence and remand for resentencing.
The original bill of information charged defendant with possession of cocaine between 200 and 400 grams, a violation of La. R.S. 40:967(F)(1)(b). The bill of information was not amended to reflect the proper subsection of the statute, but Subsection (F)(1)(a) is the provision applicable to the charged offense.
Defendant filed motions for new trial and postverdict judgment of acquittal after sentencing. The trial court later denied these motions as moot and untimely.
The alleged predicate offense was defendant's December 4, 2000 conviction for armed robbery under Washington Parish (22nd JDC) docket number 99-CR2-74726.
FACTS
On July 15, 2013, Franklinton Police Sergeant William Manning received a dispatch concerning a possible methamphetamine lab located in room 121 of the Liberty Inn Motel on Washington Street. Upon arrival, Sergeant Manning spoke to hotel employee, Christy Mitchell, who had contacted the police. With the clerk's assistance, Sergeant Manning entered the motel room but did not find any materials related to the production of methamphetamine. He did observe in plain view numerous items that he believed were being used to make powdered cocaine into crack cocaine. Having alleviated his concern about the possible methamphetamine lab, Sergeant Manning left the room, returned to his unit, relocated to a nearby parking lot, and began surveillance.
Sergeant Manning and another officer, Captain Randall Penton, maintained surveillance until a maroon vehicle pulled into a parking spot in front of the room, and a black male exited the vehicle and entered the room. As Sergeant Manning and Captain Penton approached the room to make contact with the subject, he exited the room. Upon observing Sergeant Manning's police cruiser, the subject began to walk away hastily. When Sergeant Manning directed him to stop, the subject ran.
Sergeant Manning and Captain Penton gave chase, following the subject into a wooded area and creek bed behind the motel. As he tracked the subject by following fresh footprints and churned water, Sergeant Manning heard a phone ringing and located a cell phone under a pile of debris. Next to the cell phone was a large compressed package of what appeared to be powder cocaine, as well as some individually wrapped crack cocaine rocks. Eventually, the subject, who was identified at trial as defendant, was apprehended in the woods by Captain Penton.
Franklinton Police Sergeant James Folks conducted a search of the motel room after securing a search warrant. During the search, additional narcotics and paraphernalia were recovered. Subsequent chemical testing indicated that the police had seized 196.57 grams of cocaine from the wooded area and motel room.
SUFFICIENCY OF EVIDENCE
In his second assignment of error, defendant contends the evidence presented at trial was insufficient to support his conviction for attempted possession of cocaine between 28 and 200 grams. He argues that no one actually saw him possessing or exercising control over the drugs and also that there is a lack of evidence tying him to the motel room where the drugs were discovered.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 42-43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Allen, 2014-0291 (La. App. 1st Cir. 6/4/15), 174 So.3d 1163, 1166.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in La. Code Crim. P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
As applicable here, it is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II, which includes cocaine. See La. R.S. 40:964, Schedule 11(A)(4); La. R.S. 40:967(C). In addition, there is a heightened penalty for possession of cocaine when the quantity possessed ranges between 28 and 200 grams. See La. R.S. 40: 967(F)(1)(a).
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). An attempt is a separate but lesser grade of the intended crime. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27(C).
A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. One need not physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. A person not in physical possession of the drug is considered to be in constructive possession of a drug when the drug is under that person's dominion and control. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) his knowledge that illegal drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) his physical proximity to the drugs; and (6) any evidence that the particular area was frequented by drug users. See State v. Gordon, 93-1922 (La. App. 1st Cir. 11/10/94), 646 So.2d 995, 1002. It is well-settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Toups, 2001-1875 (La. 10/15/02), 833 So.2d 910, 913. Nonetheless, a person found in the area of the drugs can be considered in constructive possession if the drugs are subject to his dominion and control. See State v. Trahan, 425 So.2d 1222, 1226 (La. 1983); State v. Harris , 94-0696 (La. App. 1st Cir. 6/23/95), 657 So.2d 1072, 1075, writ denied, 95-2046 (La. 11/13/95), 662 So.2d 477.
Defendant does not dispute the amount of cocaine seized or that the substance seized was actually cocaine. Instead, he argues that there is a lack of evidence demonstrating either his actual or constructive possession of cocaine. Further, he contends that there is minimal evidence to tie him to the motel room. The facts related to these arguments ultimately intersect, so we address them together.
Defendant did not testify at trial. Christy Mitchell, a motel employee, testified at trial that room 121 was registered to defendant beginning on July 13, 2013 - two days prior to the incident. There was not an official receipt or registration card for defendant's room on the date of the incident. Ms. Mitchell explained, however, that the motel's owners have trouble writing and speaking English, so their practice is to allow other employees, including her, to catalog rentals, and she had been too busy to fill out the card on the day of the incident. She testified further that between the time defendant registered for the room on July 13 and the time of the incident, no one else registered for that room.
Additionally, Ms. Mitchell was unequivocal in her identification of defendant as the individual who exited the maroon vehicle and entered room 121 on the day of the incident. When Sergeant Manning investigated the registration information for the maroon vehicle, he discovered that it was owned by Alan Taylor, one of defendant's family members. This vehicle was parked directly in front of room 121. Based on these facts, the jury could have reasonably concluded that defendant had rented - and was still renting and occupying - room 121 at the time of the incident.
Defendant was not found to be in actual possession of any drugs or drug paraphernalia. Upon his arrest, defendant was carrying only cash. Therefore, we must determine whether the state adequately proved defendant's actual and/or constructive possession of the cocaine at some time prior to his arrest.
First, the state sufficiently proved defendant's possession of the drugs found by Sergeant Manning during his pursuit. Sergeant Manning testified that although he had lost sight of defendant, he was aware of the direction of defendant's flight because of fresh footprints and churned water in the creek bed. During this pursuit, Sergeant Manning located a cell phone and drugs located in close proximity to each other. After defendant had been taken into custody, the cell phone Sergeant Manning recovered from the creek bed began to ring. When he asked defendant if he needed to answer it, defendant replied that it was a family member calling, and he was not worried about it. Based on the direction of defendant's flight, Sergeant Manning's ability to track defendant's path, and defendant's implicit admission to owning the cell phone discovered in the same stash as a quantity of drugs, the jury could have reasonably concluded that defendant had possessed the cocaine before its abandonment.
The state also sufficiently proved defendant's constructive possession of the drugs seized from room 121. As discussed above, the jury could have rationally concluded that defendant was still renting the room on the day of the incident. His was the last registration card filled out for room 121, a car registered to one of his family members was parked directly outside the room, and Ms. Mitchell unequivocally identified him as the person she witnessed enter into and exit from room 121. Sergeant Manning and Captain Penton maintained constant surveillance on the room following Sergeant Manning's brief entry, and no other individuals ever entered room 121. Therefore, the jury reasonably could have concluded that defendant constructively possessed the cocaine in the motel room.
In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a "compromise verdict," i.e., a legislatively approved responsive verdict that does not fit the evidence, but that (for whatever reason) the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. If the defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. See State ex rel. Elaire, 424 So.2d at 251.
In this case, there was no objection to the instruction on the responsive verdict of attempted possession of cocaine between 28 and 200 grams. The jury's ultimate reasoning for returning this responsive verdict is not clear in the record, but it is possible that this verdict represented a "compromise." Regardless of the jury's ultimate reasoning, the evidence presented at trial was sufficient to convict defendant of the charged offense, so it was also sufficient to support defendant's conviction for the responsive offense of attempted possession of cocaine between 28 and 200 grams.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the factfinder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi, 946 So.2d at 662.
This assignment of error is without merit.
SUPPRESSION OF EVIDENCE
In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress the evidence seized from the motel room. He alleges that Sergeant Manning's warrantless entry of the motel room was unlawful, and his observations could not serve as a basis for the probable cause used to ultimately secure a search warrant.
Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Long, 2003-2592 (La. 9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 281. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the state to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. See La. Code Crim. P. art. 703(D); State v. Young, 2006-0234 (La. App. 1st Cir. 9/15/06), 943 So.2d 1118, 1122, writ denied, 2006-2488 (La. 5/4/07), 956 So.2d 606.
A police officer needs both probable cause to search and exigent circumstances to justify a non-consensual, warrantless intrusion into private premises. State v. Brisban, 2000-3437 (La. 2/26/02), 809 So.2d 923, 927. Probable cause for a search exists when facts within the officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a reasonable man in the belief that the place to be searched will contain the object of the search. State v. Ragsdale, 381 So.2d 492, 495 (La. 1980).
Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion. See State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1224. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982). This list, of course, is only illustrative and not exclusive. The United States Supreme Court in Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001) has defined exigent circumstances as "a plausible claim of specially pressing or urgent law enforcement need."
Sergeant Manning testified at the suppression hearing and at trial that the motel clerk indicated she had observed what she believed to be a methamphetamine lab in room 121. He explained that because methamphetamine labs generally contain volatile substances, he made initial entry into the room in order to determine whether he needed to lock down the motel and order its evacuation. When he entered room 121, Sergeant Manning immediately realized that the room did not contain a methamphetamine lab, but he observed in plain view a substance that appeared to be cocaine. He backed out of the room and set up surveillance.
In reviewing the correctness of a trial judge's ruling on a motion to suppress, we are not limited to the evidence adduced at the suppression hearing but may consider all pertinent evidence adduced at trial. See State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
In State v. Shumaker, 40,275 (La. App. 2d Cir. 10/28/05), 914 So.2d 1156, 1167-68, the Second Circuit upheld a warrantless search of a trailer based on exigent circumstances. A strong chemical odor of ammonia in the yard led officers to believe methamphetamine was being manufactured in the trailer. The court stated that "[u]nder these circumstances, clear public safety concerns associated with the illegal manufacture of methamphetamine existed for the officers' entrance into the trailer without a warrant." Shumaker, 914 So.2d at 1168.
When the Ms. Mitchell informed Sergeant Manning that she had observed a possible methamphetamine lab in room 121, Sergeant Manning's training and experience led him to believe this information was credible. Reports by citizen informants based on first hand knowledge, who are willing to be identified, carry a high indicia of credibility and reliability in the determination of probable cause. See State v. Brown , 2009-2456 (La. 5/11/10), 35 So.3d 1069, 1073. Therefore, because of the inherently volatile nature of methamphetamine labs, Sergeant Manning had both probable cause and exigent circumstances to enter the room and investigate the report made by Ms. Mitchell. Though he immediately realized that there was no methamphetamine lab in room 121, Sergeant Manning discovered evidence of cocaine possession in plain view. At the time he observed this evidence in plain view, Sergeant Manning had prior justification for intrusion into a protected area, and it was immediately apparent without close inspection that the substance was contraband. See Young, 943 So.2d at 1123. Although Sergeant Manning would have been justified in seizing the cocaine from room 121 pursuant to the plain view exception, he used the information gleaned from his brief entry into the room to secure a search warrant. The trial court did not err or abuse its discretion in denying defendant's motion to suppress this evidence.
This assignment of error is without merit.
SINGLE-PHOTO IDENTIFICATION
In his third assignment of error, defendant argues that the trial court erred in failing to suppress Ms. Mitchell's single-photo identification of defendant. He contends this single-photo procedure was unduly suggestive and resulted in a substantial likelihood of misidentification.
An identification procedure is unduly suggestive if it displays the defendant so that the witness's attention is focused on the defendant. State v. Neslo, 433 So.2d 73, 78 (La. 1983); State v. Robinson, 386 So.2d 1374, 1377 (La. 1980). In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court allowed evidence of a suggestive pretrial identification from a single photograph by an undercover police agent after determining that it was reliable. In that decision, the court concluded, "reliability is the linchpin in determining the admissibility of identification testimony." Mason, 432 U.S. at 114, 97 S.Ct. at 2253.
Thus, a defendant attempting to suppress an identification must prove the identification was suggestive and that there was a substantial likelihood of misidentification by the eyewitness. Even should the identification be considered suggestive, that alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Reed, 97-0812 (La. App. 1st Cir. 4/8/98), 712 So.2d 572, 576, writ denied, 98-1266 (La. 11/25/98), 729 So.2d 572. Although single-photo identifications are generally viewed by the courts with suspicion, their suggestive nature will not per se preclude admissibility unless found to be untrustworthy under the total circumstances. See State v. Harper, 93-2682 (La. 11/30/94), 646 So.2d 338, 341.
If the identification procedure is determined to be suggestive, courts look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification. These factors include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. State v. Martin, 595 So.2d 592, 595 (La. 1992) (citing Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253). "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Id. A trial court's determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. Reed, 712 So.2d at 576.
Following his pursuit of defendant and recovery of the discarded evidence, but prior to defendant's apprehension, Sergeant Manning returned to the motel and spoke with Ms. Mitchell. She advised Sergeant Manning that the individual who had fled was the person who had been staying in room 121. After obtaining defendant's name from the registration card, Sergeant Manning printed defendant's driver's license photo from the NCIC database. Ms. Mitchell identified the person in the photo as the individual who was staying in room 121 and who had fled from the police. She was shown the photo individually and not as part of a photo lineup. Ms. Mitchell's identification took place approximately thirty minutes after she witnessed defendant enter room 121, exit from it, and then flee.
Considering the totality of the circumstances, the trial court did not err or abuse its discretion in denying defendant's motion to suppress the single-photo identification. Ms. Mitchell had ample opportunity to view defendant as he returned to the motel, and she testified at trial that when defendant exited room 121, he began to walk directly toward her. Ms. Mitchell's degree of attention was heightened at this point because she knew what was going on and was terrified that something bad would happen. She was unequivocal in her identification of defendant both on the day of the incident and at trial. Lastly, the time between Ms. Mitchell's observation of defendant and her identification of him was a relatively short thirty minutes. Therefore, even if the single-photo identification procedure might have been somewhat suggestive, there was not a substantial likelihood of misidentification.
This assignment of error is without merit.
ADMISSIBILITY OF DEFENDANT'S STATEMENT
In his fourth assignment of error, defendant argues that the trial court erred in allowing the state to introduce testimony that defendant implicitly admitted to owning a cell phone found near an abandoned stash of cocaine. He contends that this inculpatory statement was not freely and voluntarily given or proven to be made following the issuance of a Miranda warning, and also that the statement was hearsay.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We note first that defendant's assignment of error combines the issue of the free and voluntary nature of his statement (and the attendant Miranda argument), and the consideration of whether the police officer's testimony regarding this statement was hearsay. While defendant filed a generalized motion to suppress that sought suppression of any alleged inculpatory statements, the trial court never issued a ruling regarding the suppression vel non of any statements. Instead, the only issues addressed and ruled upon at defendant's suppression hearing concerned the evidence seized and Ms. Mitchell's identification of defendant. Outside of the boilerplate motion to suppress, defendant never asked the trial court to make a determination regarding the free and voluntary nature of defendant's statement, or the sufficiency of any Miranda warnings.
In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. Code Crim. P. art. 841(A). A new basis for an objection may not be raised for the first time on appeal. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. See State v. McCIain, 2004-0098 (La. App. 5th Cir. 6/29/04), 877 So.2d 1135, 1144, writ denied, 2004-1929 (La. 12/10/04), 888 So.2d 835. See also State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1005. Accordingly, the issues of Miranda and the free and voluntary nature of defendant's statement is not properly before us.
We note that while the requirement of an objection does not apply to a trial court's ruling on any written motion, the trial court made no ruling on defendant's motion to suppress as it related to defendant's statement because he did not pursue this issue at any stage of the proceedings. See La. Code Crim. P. art 841(B). As the proponent of the motion to suppress, it was incumbent on defendant to move for a hearing and to obtain a ruling on his motion prior to trial. Otherwise, it may be considered that this part of his motion has been abandoned. See State v. Wagster, 361 So.2d 849, 856 (La. 1978).
At trial, defendant raised a hearsay objection to Sergeant Manning's description of defendant's statement. As described above, Sergeant Manning testified that he recovered a cell phone and a stash of cocaine near the creek where defendant fled. After defendant was taken into custody, the cell phone rang, and Sergeant Manning asked defendant whether he needed to answer it. According to Sergeant Manning, defendant implicitly admitted to owning the cell phone by stating in response that the person calling was a family member and he "wasn't worried about it." Defense counsel objected that this statement was hearsay, but the trial court overruled the objection.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C). A declarant is unavailable as a witness when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court, including a situation in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement. See La. Code Evid. art. 804(A)(1). A statement, which at the time of its making so far tended to subject the declarant to criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true, is considered a statement against interest not excluded by the hearsay rule if the declarant is unavailable. See La. Code Evid. art. 804(B)(3).
Defendant qualifies as an unavailable declarant because of his privilege not to testify at trial. Further, his statement regarding the identity of the caller as a family member - thereby implicitly admitting ownership of the cell phone recovered near the abandoned contraband - was one that tended to subject him to criminal liability. Therefore, the trial court properly denied defense counsel's objection to the statement, as it constituted an exception to the hearsay rule under La. Code Evid. art. 804(B)(3).
This assignment of error is without merit.
NON-UNANIMOUS JURY VERDICT
In his fifth assignment of error, defendant complains that the non-unanimous jury verdict in this case rendered his conviction unconstitutional.
Louisiana Constitution Article I, § 17 (and by extension La. Code Crim. P. art. 782, which is essentially the codification of the constitutional provision) allows for non-unanimous jury verdicts by at least 10 of 12 votes in non-capital cases, where the punishment is necessarily confinement at hard labor. Defendant was charged with possession of cocaine between 28 and 200 grams, a non-capital crime necessarily punishable by confinement at hard labor. See La. R.S. 40:967(F)(1)(a). He was ultimately convicted by a 10-2 vote of the responsive offense of attempted possession of cocaine between 28 and 200 grams.
It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. In order to do so, a party must raise the issue of unconstitutionality in the trial court, the alleged unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718-719. In the instant case, defendant failed to raise his challenge to La. Const. art. I, § 17(A) in the trial court. Accordingly, the issue is not properly before this court.
Nevertheless, we address this oft-repeated issue to reiterate this court's position that this argument regarding non-unanimous verdicts is untenable. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 413-414, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La. 1982); State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 164-165.
Oregon's non-unanimous jury verdict provision of its state constitution was challenged in Apodaca. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), decided with Apodaca, upheld Louisiana's then-existing constitutional and statutory provisions allowing nine-to-three jury verdicts.
Defendant suggests that since subsequent legal developments call Apodaca into serious question, this court should find Louisiana's non-unanimous verdict scheme unconstitutional. In support of this assertion, defendant cites the decision of McDonald v. City of Chicago, Illinois, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Defendant's reliance on this jurisprudence is misplaced. The McDonald Court, while holding that the Second Amendment right to keep and bear arms is fully applicable to the states through the Fourteenth Amendment, did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See McDonald, 561 U.S. at 766 n.14, 130 S.Ct. at 3035 n.14. The McDonald Court specifically stated that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. See McDonald, 561 U.S. at 766 n.14, 130 S.Ct. at 3035 n.14; State v. Bishop, 2010-1840 (La. App. 1st Cir. 6/10/11), 68 So.3d 1197, 1205, writ denied, 2011-1530 (La. 12/16/11), 76 So.3d 1203. Defendant's argument has been repeatedly rejected by this court. See State v. Dawson, 2014-0326 (La. App. 1st Cir. 9/24/14), 154 So.3d 574, 578 n.3, writ denied, 2014-2212 (La. 8/28/15), 175 So.3d 411; State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So.2d 147, 156-157, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684.
Even though Apodaca was a plurality rather than a majority decision, the United States Supreme Court and other courts have cited or discussed the opinion various times since its issuance. From these decisions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Louisiana Constitution article I, § 17(A) and La. Code Crim. P. art. 782(A) are not unconstitutional and, therefore, are not in violation of the defendant's constitutional rights. See State v. Hammond, 2012-1559 (La. App. 1st Cir. 3/25/13), 115 So.3d 513, 514-15, writ denied, 2013-0887 (La. 11/8/13), 125 So.3d 442, cert. denied, ___ U.S. ___, 134 S.Ct. 1939, 188 L.Ed.2d 965 (2014).
This assignment of error is without merit.
ALLOTMENT PROCEDURE
In his final assignment of error, defendant contends that the transfer of his case from one judge to another violated the random allotment process.
The record indicates that defendant was arraigned by Judge Reginald T. Badeaux, III on October 10, 2013. According to the court minutes, Judge Badeaux presided over the pretrial proceedings until December 8, 2014, when Judge Martin E. Coady began to preside over the case. Judge Coady handled all of the subsequent proceedings, including the suppression hearing, trial, initial sentencing, and habitual offender adjudication and resentencing. Nothing in the record indicates the reason for the transfer.
Defendant alleges for the first time on appeal that the transferal of his case from Judge Badeaux to Judge Coady violated the district court's random allotment procedure. However, defendant does not appear to have objected to the transfer in the district court, and appellate counsel admits that he does not know why the case was transferred. Because defendant failed to contemporaneously object to this transfer, this issue is not properly before us on appeal. See La. Code Crim. P. art. 841(A).
PATENT ERROR
For errors not assigned, we are limited in our review under La. Code Crim. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After careful review, we have found an error in defendant's habitual offender sentence.
Having been adjudicated a second-felony habitual offender, defendant was sentenced to twenty-two years at hard labor, without benefit of parole, probation, or suspension of sentence. For the reasons detailed below, this sentence unlawfully restricts the benefit of parole and must be vacated.
Defendant was convicted of attempted possession of cocaine between 28 and 200 grams. Had defendant been convicted of the completed offense of possession of cocaine between 28 and 200 grams, the applicable penalty provision would have called for imprisonment at hard labor for not less than five years, nor more than thirty years, and payment of a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. See La. R.S. 40:967(F)(1)(a). In addition, the benefits of parole, probation, and suspension of sentence would have been restricted only for the term of the minimum sentence for the completed offense - five years. See La. R.S. 40:967(G).
Defendant's conviction was not for a completed offense, but for an attempt to possess between 28 and 200 grams of cocaine. Louisiana Revised Statutes 40:979(A) provides that a person convicted of this offense shall be fined or imprisoned in the same manner as for the offense attempted, with such fine or imprisonment not to exceed one-half of the longest term of imprisonment prescribed for the offense so attempted. See also La. R.S. 14:27(D)(3). Thus, there is effectively no minimum sentence for a person convicted of attempted possession of cocaine in an amount between 28 and 200 grams. See State v. Brown, 2000-2120 (La. App. 4th Cir. 12/19/01), 804 So.2d 863, 864, writ denied, 2002-0308 (La. 2/7/03), 836 So.2d 85. Therefore, the sentencing provisions for defendant's conviction of attempted possession of cocaine between 28 and 200 grams do not restrict the benefits of parole, probation, or suspension of sentence since the underlying offense restricts these benefits only as to the minimum sentence and there is no minimum sentence for this offense. See La. R.S. 40:967(F)(1)(a) & (G); La. R.S. 40:979(A).
Having been adjudicated a second-felony habitual offender, defendant was subject to an enhanced sentence of imprisonment for not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. See La. R.S. 15:529.1(A)(1). Because the longest term prescribed for a first conviction of attempted possession of cocaine between 28 and 200 grams is fifteen years, the range for defendant's habitual offender sentence is a minimum of seven-and-one-half years to a maximum of thirty years imprisonment. See La. R.S. 14:27(D)(3), 15:529.1(A)(1), 40:967(F)(1)(a), & 40:979(A). The conditions imposed on a habitual offender sentence are the same as those in the reference statute, so a habitual offender sentence in this case may not restrict the benefit of parole. See La. R.S. 14:27, 40:967(F)(1)(a) & (G), & 40:979(A); State v. Bruins, 407 So.2d 685, 687 (La. 1981). However, a proper habitual offender sentence shall be at hard labor and will restrict the benefits of probation and suspension of sentence. See La. R.S. 15:529.1(G).
The habitual offender statute does not authorize the assessment of the fine mandated in the underlying criminal reference statute. See State v. Dickerson, 584 So.2d 1140 (La. 1991) (per curiam); State v. Thomas, 2012-0177 (La. App. 1st Cir. 12/28/12), 112 So.3d 875, 879-80 (en banc). --------
The proper sentence for defendant (considering his underlying conviction and his status as a second-felony habitual offender) is a term of imprisonment at hard labor for a minimum of seven-and-one-half years to a maximum of thirty years. This entire sentence shall be served without benefit of probation and suspension of sentence, but the sentence may not restrict the benefit of parole. Defendant's instant sentence, which restricts parole for its entire twenty-two year duration, is illegal.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A). In the instant case, however, correction of the illegal sentence requires the exercise of discretion. Had the trial court realized that it could not restrict the benefit of parole on defendant's sentence, it might have sentenced defendant to a longer overall term of imprisonment. Accordingly, under State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam), we vacate defendant's habitual offender sentence and remand the matter to the trial court for resentencing on defendant's habitual offender adjudication.
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED FOR RESENTENCING. GUIDRY, J., concurs in the result and assigns reasons. GUIDRY, J., concurring in the result.
I respectfully disagree with the determination that the trial court did not err or abuse its discretion in denying defense counsel's motion to suppress the evidence seized from the motel room. At the suppression hearing and at the.trial, Sergeant Manning stated that dispatch relayed to him that an employee from Liberty Inn Motel contacted the police, claiming that one of the rooms contained what she believed to be some type of drug lab, possibly a meth lab. Sergeant Manning stated that in order to secure public safety, due to the volatile nature of a meth lab, he entered the room to check on the conditions based on the complaint. However, there is no evidence in the record indicating what exactly the motel employee, who was unknown to police, observed in the room that led her to believe that it was being used as a meth lab. Accordingly, while probable cause can be based on knowledge supplied to an officer by another person, there is no evidence presented indicating any facts relating to the motel employee's basis of knowledge. See State v. Shepherd, 470 So. 2d 608, 612 (La. App. 1st Cir. 1985). The lack of a basis for her knowledge, coupled with the fact that she was not known to police, makes her unreliable for purposes of establishing probable cause. See Shepherd, 470 So. 2d at 612; see also State v. Alexander, 632 So. 2d 853, 855 (La. App. 4th Cir. 1994).
Furthermore, there is no evidence indicating that Sergeant Manning independently observed any conditions upon his arrival at the scene, i.e., odor, that would give him probable cause or exigent circumstances to enter the motel room. Therefore, because Sergeant Manning did not have probable cause or exigent circumstances to justify a non-consensual, warrantless intrusion into the private premises, the search was illegal and any evidence obtained pursuant to the search warrant, which was obtained based on evidence observed in plain view in the room during the illegal search, should have been suppressed.
However, because I find that the evidence recovered by Sergeant Manning during his pursuit of the defendant in the woods, which the defendant did not seek to suppress, is sufficient to support the defendant's conviction and sentence of attempted possession of cocaine between 28 and 200 grams, I respectfully concur in the result reached in this matter.