Opinion
23-KA-148
12-20-2023
STATE OF LOUISIANA v. ROBIN GASSENBERGER, JR.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Joel T. Chaisson, II Louis G. Authement. COUNSEL FOR DEFENDANT/APPELLANT, ROBIN GASSENBERGER, JR. Sherry A. Watters.
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 21-212, DIVISION "C", HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Joel T. Chaisson, II Louis G. Authement.
COUNSEL FOR DEFENDANT/APPELLANT, ROBIN GASSENBERGER, JR. Sherry A. Watters.
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
MARC E. JOHNSON, JUDGE.
AFFIRMED
MEJ
SMC
JJM
Defendant/Appellant, Robin Gassenberger, Jr., appeals his conviction and sentence for possession of a schedule two controlled dangerous substance (methamphetamine) weighing less than two grams rendered in the 29th Judicial District Court, Division "C". For the following reasons, we affirm Defendant's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On May 18, 2021, the St. Charles Parish District Attorney filed a bill of information charging Defendant with distribution of a schedule two controlled dangerous substance (methamphetamine), in violation of La. R.S. 40:967(A)(1) (count one), and possession with intent to distribute a schedule two controlled dangerous substance (methamphetamine), in violation of La. R.S. 40:967(A)(1) (count two). That same date, Defendant was arraigned and pleaded not guilty.
Various pleadings were filed, including a Motion to Reveal the Deal filed by defense counsel on November 23, 2022. On December 6, 2022, the State nolle prossed count one. Count two was then amended to be designated as count one, and it charged Defendant with possession of a schedule two controlled dangerous substance (methamphetamine) weighing less than two grams, in violation of La. R.S. 40:967(C)(1). That same day, Defendant was arraigned on the amended bill and pleaded not guilty.
In the Motion to Reveal the Deal, defense counsel requested that the District Attorney respond in writing as to any deals or considerations made between the prosecution and any potential witness in this case.
The trial began on December 6, 2022. At trial, Detective Daniel April, then with the special investigations division in St. Charles Parish, explained that in February 2021, he received information about possible drug activity at 103 Baker Street. He determined that Brandy Savoie and Defendant occupied that address. Surveillance of the residence was conducted on several occasions. Det. April observed Defendant's red truck there numerous times both during the day and at night. The detective saw Defendant drive that red truck and saw Defendant and Ms. Savoie in the truck together. Det. April testified that 103 Baker Street was a rental property, and he did not take any steps to learn who was listed on the lease or who owned it.
After obtaining a search warrant for that address, Det. April executed the warrant on February 17, 2021. Upon arriving, the detective saw Defendant standing in the unfenced front yard. Defendant was approached and detained. Det. April advised Defendant of the search warrant and entered the residence through an unlocked side door. He testified that he saw Ms. Savoie standing in the bedroom over her purse and that she appeared to be holding a smoking device. Ms. Savoie looked up and dropped the item. Upon Det. April's request, Ms. Savoie exited the bedroom. The detective and Ms. Savoie were familiar with each other.
Det. April later explained that the residence only had one bedroom.
After the scene was secured, Ms. Savoie and Defendant were relocated to the kitchen. Det. April explained that Ms. Savoie then brought up the possibility of cooperating with the narcotics bureau in order to avoid being arrested. Defendant was present at the time, and the discussion involved both him and Ms. Savoie. Det. April testified that Ms. Savoie agreed to cooperate with law enforcement and to provide information. Defendant also agreed to cooperate.
At some point, Ms. Savoie told Det. April that she resided there with Defendant. Ms. Savoie advised the detective that there were narcotics in the bedroom and on the kitchen table. A search was then conducted. Det. April stated that he went into the bedroom, which appeared to be shared by Defendant and Ms. Savoie. Methamphetamine was found where Ms. Savoie specified it would be. The methamphetamine found in the dresser drawer in the bedroom was in a small plastic container. A purse on the bed contained a loose crystal-like substance, a cut straw, and a smoking device. The detective explained that smoking devices, at least three digital weight scales, and small clear plastic "baggies" were found in the bedroom. The detectives also found lighters and small cut straws, which Det. April described as "another paraphernalia." Det. April explained that, on the kitchen table, there was a zippered pouch that contained cut straws, a pipe, and a crystal-like substance. Next to that pouch, there was a digital scale in plain view.
Det. April indicated that he observed male clothing in the bedroom but did not recall seeing male shaving products on the dresser. He acknowledged that there was a blow dryer in the bedroom, and Defendant was bald at the time. He further agreed that a perfume bottle, a light blue deodorant canister, and a lotion bottle are visible in the photographs of the bedroom.
Detective April acknowledged that the "baggies" are the type in which narcotics are usually packaged.
Detective April stated that the suspected methamphetamine and drug paraphernalia were photographed by Detective Harold Kingsmill. The detective reviewed and discussed those photographs. He identified hand-made artwork on the kitchen table that read "Brandy S" and "Rob G" with a heart between the names. Det. April collected the suspected methamphetamine and drug paraphernalia. The suspected methamphetamine had a collective total weight of about 1.1 grams.
Det. April testified that Ms. Savoie and Defendant were not arrested on February 17, 2021 because they expressed an interest in providing information and assisting law enforcement with future investigations. They were advised to contact law enforcement in a day or two. Shortly thereafter, Ms. Savoie and Defendant went to the law enforcement office together, met with detectives, completed paperwork, and provided information. Det. April testified that Defendant provided information that led to one arrest. He explained that Defendant did not fulfill the requirements of working with the narcotics officers, and Defendant and Ms. Savoie were arrested on April 20, 2021, at the home of Defendant's family member. Det. April attempted to locate Defendant at 103 Baker Street, but it appeared no one was living there.
Det. Kingsmill, with the special investigations division of the St. Charles Parish Sheriff's Office, participated in an investigation at 103 Baker Street in February of 2021. Specifically, he assisted with surveilling the residence prior to February 17, 2021, and taking photographs after the residence was searched. In surveilling the house with Det. April, he monitored any traffic coming and going from the residence. He observed a red truck there and agreed that it was a constant or near-constant at the residence. He did not "observe any individuals." Det. Kingsmill testified that the truck was functioning and would leave but always returned to the residence.
Det. Kingsmill testified that the case agent would be responsible for researching who owned 103 Baker Street. He explained that, according to the information they received from a reliable confidential informant, the residence was occupied by Defendant and Ms. Savoie. Det. Kingsmill stated he was not asked to photograph certain items, such as a water or light bill with Defendant's name on it for the residence at 103 Baker Street. Det. Kingsmill was not directed to run any vehicle searches. He acknowledged that he did not have any documentation to support the notion that anyone besides Ms. Savoie lived at the residence.
After Detective April secured a search warrant for 103 Baker Street on February 17, 2021, Detectives April and Kingsmill went to the residence to conduct the search. Detective Kingsmill explained that upon arriving, he saw Defendant in the front yard. He did not recall whether there was a fence. Det. Kingsmill explained that he did not see Defendant discard any narcotics, and he did not recover any narcotics from Defendant.
Detective Kingsmill explained that Sergeant Alan Tabora was also there.
Once the residence was deemed safe, the detective and Defendant entered. Det. Kingsmill was unaware of Ms. Savoie's location when officers first entered. The detective testified that Defendant expressed an interest in assisting the special investigations division with further investigations and indicated he would work with the narcotics detectives to avoid going to jail. Ms. Savoie was present at that time and expressed a similar interest. Neither Defendant nor Ms. Savoie were arrested that day. After agreeing to cooperate, Ms. Savoie provided various locations in the house where methamphetamine was located. Other drug paraphernalia was also located. Det. Kingsmill testified that Defendant never claimed that the drugs were Ms. Savoie's.
Det. Kingsmill assisted with photographing the residence and the suspected methamphetamine. He identified photographs of the bedroom in the residence that Ms. Savoie advised she shared with Defendant. He photographed a glass jar containing methamphetamine in the top dresser drawer. A Ziplock bag inside of a purse in the bedroom contained a cut straw. In the bedroom, he also photographed a glass smoking device with a bulb on one end. Det. Kingsmill explained that there was a box in the bedroom that contained "a mirror with a credit card and methamphetamine, sort of, residue on the glass." Several plastic baggies and a digital scale were also photographed. On the kitchen table, there was a digital scale and a zippered pouch containing a glass container of methamphetamine, a methamphetamine smoking device, and two cut straws. Det. Kingsmill testified that "Brandy S," a heart, and "Rob G" were written on the kitchen table.
Det. Kingsmill testified that a cut straw is used for "subjects to consume narcotics."
On February 18, 2021, Det. Kingsmill saw Defendant in Det. April's office. Det. Kingsmill was present when Defendant agreed to cooperate. Defendant signed paperwork to become a documented confidential informant. Det. Kingsmill testified that Defendant and Ms. Savoie provided information of "potential drug dealers, per se, in St. Charles Parish." Ultimately, Defendant did not abide by all of the terms of the agreement.
Det. April identified a clear plastic bag containing two or three small pieces of crystallized substance. Next, he identified a small plastic container that he believed was recovered from the dresser in the bedroom. The detective also identified a small vial from the pouch found on the kitchen table. Det. April believed that all three items of suspected methamphetamine were sent to a lab and tested positive. The detective identified several other items that were collected, which included four digital scales from the bedroom, additional scales, and two smoking devices. Det. April testified that he elected not to test for any fingerprints or DNA. He further explained that no bills were collected at the residence.
Sergeant Alan Tabora, with the St. Charles Parish Sheriff's Office special investigations division, participated in a search of 103 Baker Street in Paradis, Louisiana on February 17, 2021. Once he arrived, he was tasked with securing the residence upon the execution of the search warrant. He entered the residence and ensured that there were no individuals inside at that time. When he entered, Ms. Savoie was inside the residence, and Defendant was outside near a shed or garage. He did not recall the property being fenced. Sergeant Tabora did not patdown Defendant or collect any evidence. Sergeant Tabora denied that, when he encountered Ms. Savoie, her lips and hand were touching a glass smoking device, but acknowledged that he became aware of this after he read the incident report. At some point, Det. April told him where Ms. Savoie indicated drugs were located.
While he acknowledged that he was not the case agent in this particular case, Sergeant Tabora acknowledged that in past cases where he was the case agent, he has taken steps to ascertain who is a resident in a certain place. He was not asked to do so in this case.
Sergeant Tabora was also tasked with searching the individual rooms. He testified that he was inside of the house when there was a discussion, wherein Defendant agreed to assist with future cases and to cooperate with the narcotics detectives. He indicated that he knew about the discussion. Sergeant Tabora did not have further contact with Defendant.
Corporal Nicholas Lege, evidence custodian for the St. Charles Parish Sheriff's Office, identified a clear plastic bag containing a crystal-like substance. He also identified two other pieces of evidence, both described as a small clear container and clear plastic bag containing a crystal-like substance, which were collected on February 17, 2021, and given to him by Det. April. Corporal Lege brought those three pieces of evidence to the Jefferson Parish Sheriff's Office crime lab, and all three pieces of evidence were found to contain methamphetamine.
Corporal Lege also identified evidence described as numerous multi-sized clear plastic bags with two clear plastic containers and four digital weight scales, all containing a crystal-like residue. He identified a black digital weight scale containing a crystal-like residue, two small-cut red straws, and a small digital weight scale with a white, crystal-type residue. The corporal identified a small, green plastic container, a cut blue straw, and two glass smoking devices with a bulb at one end.
At the conclusion of the trial, on December 7, 2022, the six-person jury unanimously found Defendant guilty as charged. Defendant filed a motion for new trial on December 9, 2022. At a hearing on December 13, 2022, the trial judge denied the motion. After defense counsel waived delays, Defendant was sentenced to two years imprisonment with the Department of Corrections. At the hearing on December 13, 2022, defense counsel orally noticed her intent to appeal. On January 6, 2023, counsel filed a written motion for appeal, which was granted on January 10, 2023. The instant appeal follows.
This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La.App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2. See also La. R.S. 15:824(C)(1), which states, "Notwithstanding any provision of law to the contrary, only individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Public Safety and Corrections." But see La. R.S. 15:824(C)(2), which provides exceptional circumstances.
ASSIGNMENTS OF ERROR
On appeal, Defendant alleges that there was insufficient evidence to convict him of possession of methamphetamine; the trial court erred in dismissing jurors under the former version of La. C.Cr.P. art. 401(5); the trial court erred in allowing the State to use evidence of his compliance with an informal agreement with the police as evidence of knowledge; and the trial court erred in imposing an unconstitutionally excessive sentence.
LAW AND ANALYSIS
Sufficiency of the Evidence
Defendant argues that the State failed to establish that he knowingly or intentionally possessed methamphetamine or that he had constructive possession. He asserts that he was visiting the house and was outside when officers arrived. He states the methamphetamine and drug paraphernalia were found in a woman's purse, a closed woman's dresser drawer, and a container in the kitchen. Defendant argues that he was not forensically connected to any of the items and that he never made a statement or admission. He explains that Ms. Savoie directed officers to the items and negotiated a deal. Defendant contends that impermissible hearsay was permitted relating to the statements of Ms. Savoie and the confidential informant that Defendant lived at the residence. Defendant concludes that the State failed to prove that he had guilty knowledge of, or constructive possession of, the methamphetamine.
The State responds that there was no evidence or testimony supporting any conclusion other than that drugs were found in the home Defendant and Ms. Savoie shared at 103 Baker Street. The State avers that it is illogical to conclude that anyone other than Defendant and Ms. Savoie exercised joint dominion and control over the narcotics.
The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Chinchilla, 20-60 (La.App. 5 Cir. 12/23/20), 307 So.3d 1189, writ denied, 21-274 (La. 4/27/21), 314 So.3d 838, cert. Denied, __ U.S. __, 142 S.Ct. 296, 211 L.Ed.2d 138 (2021). This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. State v. Clifton, 17-538 (La.App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. State v. Hayman, 20-323 (La.App. 5 Cir. 4/28/21), 347 So.3d 1030, 1040. Further, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the factfinder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Lane, 20-181 (La.App. 5 Cir. 1/27/21), 310 So.3d 794, 804. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. Id.
Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Lloyd, 21-645 (La.App. 5 Cir. 8/24/22), 348 So.3d 222, 231, writ denied, 22-1354 (La. 11/22/22), 350 So.3d 499. Where circumstantial evidence forms the basis of a conviction, the circumstances must be so clearly proven that they point not merely to the possibility or probability of guilt, but to the moral certainty of guilt. State v. Nelson, 14-252 (La.App. 5 Cir. 3/11/15), 169 So.3d 493, 501, writ denied, 15-685 (La. 2/26/16), 187 So.3d 468. The rule as to circumstantial evidence is "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Id. (citing La. R.S. 15:438). This is not a separate test from the Jackson standard but, rather, provides a helpful basis for determining the existence of reasonable doubt. State v. Manuel, 20-172 (La.App. 5 Cir. 6/2/21), 325 So.3d 513, 539, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071.
Defendant was convicted of possession of a schedule two controlled dangerous substance (methamphetamine) weighing less than two grams, in violation of La. R.S. 40:967(C)(1). Defendant challenges whether the State proved the requisite guilty knowledge and dominion and control over the contraband to support the conviction in this case.
Guilty knowledge is an essential element of the crime of possession of contraband and such knowledge may be inferred from the circumstances. State v. Bush, 02-247 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 864, writ denied, 02-1887 (La. 1/24/03), 836 So.2d 42. Actual possession amounts to physical custody of the object. Lloyd, 348 So.3d at 232. A person not in physical possession of contraband may have constructive possession when the contraband is under that person's dominion or control. Bush, supra.
In order to prove constructive possession, the evidence must show control or dominion over, as well as guilty knowledge of, the contraband. Id. Factors that may establish control or dominion for purposes of constructive possession include knowledge that the drugs were in the area, relationship with the person found to have possession, access to the area where the drugs were found, evidence of recent drug use, and physical proximity to the contraband. State v. Lane, 20-137 (La.App. 5 Cir. 12/23/20), 309 So.3d 886, 902, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836. A person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. State v. Barker, 19-223 (La.App. 5 Cir. 12/11/19), 285 So.3d 581, 590 n.10. Mere presence in an area where drugs are found or mere association with the person in actual possession does not constitute constructive possession. However, proximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence. State v. Richardson, 18-717 (La.App. 5 Cir. 9/4/19), 279 So.3d 501, 509, writ denied, 19-1722 (La. 7/2/20), 297 So.3d 764.
Here, Defendant filed a motion for new trial, wherein he argued that the verdict was not supported by the evidence. He further asserted that there was no conclusive forensic evidence of possession introduced at trial, and the verdict was contrary to the law and the evidence. In denying the motion for new trial, the judge explained:
The court, having sat through the entirety of this trial, will take judicial notice of both the testimony as well as all of the documents and evidence presented. And the Court is going to deny that motion for new trial as the verdict was not contrary to the law and evidence.
The court finds that there was certainly sufficient evidence to suggest that Mr. Gassenberger was in constructive possession of the methamphetamine which was found in the home. Specifically, in the kitchen, it was located on the kitchen table which was available and opened.
And the court also takes notice of the fact that Mr.
Gassenberger agreed to cooperate with detectives in connection with that to avoid being arrested on that day which the court certainly believes suggests a guilty knowledge of the drugs that were contained in the home.
We find that the jury heard the testimony presented by the State at trial and found the evidence to be credible. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Washington, 17-16 (La.App. 5 Cir. 9/26/17), 228 So.3d 289, 293.
In State v. Belvin, 14-626 (La.App. 5 Cir. 12/16/14), 170 So.3d 987, 993-94, an officer testified that surveillance was set up for at least five months prior to the defendant's arrest. While under surveillance, the defendant was observed at the apartment hundreds of times. A witness testified that the defendant frequented the apartment, with him bringing the witness there on at least four separate occasions, several of which were overnight visits during which the witness provided that the defendant did not bring clothing or personal items with him as they were already at the apartment. The defendant possessed a key to the apartment and a bill from Entergy was found in his name inside of the apartment. The apartment was leased to a man who was incarcerated well before the drugs and weapons were found in the apartment and continued to be incarcerated through the time of the seizure of the drugs and weapons. It was not shown that any person other than the defendant had physical access to the apartment. This Court found that the evidence showed beyond a reasonable doubt that the defendant had dominion and control over the evidence seized pursuant to the search warrant and accordingly had constructive possession of the cocaine and firearms. This Court provided that the lack of fingerprints was explained, and the fact that fingerprints were not developed did not negate the evidence of the defendant's occupation and control of the premises. Id. at 994.
In State v. Fisher, 19-1899 (La. 5/13/21), 320 So.3d 400 (per curiam), the defendant, Walter Perell Fisher Jr., was taking a bath at his girlfriend's residence when officers accompanied by a parole officer arrived to conduct a "residence check." The residence check pertained to two probationers who also resided there, Richard Dantin and his fiancee, Kristie Smith. In response to questioning by the parole officer, Dantin revealed that he had a small quantity of methamphetamine and a pipe on his person. Officers then obtained a search warrant for the residence. They found controlled dangerous substances and paraphernalia in the common areas and bedrooms. In the bedroom belonging to Samantha Irvin, the defendant's girlfriend, officers found a single, loose prescription promethazine pill on a cluttered nightstand. In the pocket of a medium-sized Saints jacket hanging in Irvin's closet, officers found an opaque container with less than a gram of methamphetamine inside and a bottle of Adderall prescribed to Irvin. She told officers that the defendant had no knowledge of the methamphetamine or the promethazine pill in her room. No contraband was found in the bathroom where defendant was taking a bath. The defendant was found guilty of possession of methamphetamine and possession of a legend drug without a prescription based on the methamphetamine found in the jacket pocket and the single promethazine pill found on the nightstand. Id. at 402.
On appeal in Fisher, the supreme court found that while the defendant had access to the room where officers found the methamphetamine and promethazine pill, the State failed to introduce any evidence establishing the defendant's knowledge of their presence. Officers found less than one gram of methamphetamine in an opaque container inside the pocket of a size medium jacket that was hanging in Irvin's closet. The supreme court stated that a jury could only make a series of speculative leaps to infer that the defendant knew the methamphetamine was there, in part because the defendant might have been able to fit into the jacket (as one officer speculated at trial). The court explained that while officers found the single pill of promethazine in plain sight on Irvin's nightstand, the nightstand was cluttered with many personal effects and other medications that were prescribed to Irvin were also found in the room. The supreme court explained that even if the jury inferred that the defendant noticed it, there was no evidence from which the jury could further infer the defendant knew the small white pill required a prescription or that it had not been prescribed to Irvin. Id. at 403-04.
The supreme court explained that the first circuit, in an unpublished opinion, found the evidence was sufficient. The supreme court explained that the court of appeal based its determination on the following evidence: officers found the defendant's Louisiana Purchase Card in the residence; officers found some items of male clothing and shoes in Irvin's closet; the defendant's dog was present in the residence at the time of the arrest; Dantin testified in a prior trial that the defendant was "staying" in the home with Irvin; Smith testified in the present trial that the defendant lived intermittently with Irvin; and the defendant told the police during their investigation of another offense that he "stayed" at two residences, one of which was where the crimes at issue occurred. Id. at 402-03.
The supreme court explained that although the State argued that the jury could infer the defendant's knowledge from the drugs and paraphernalia found in the common areas, Dantin claimed ownership of those items, and the defendant was not charged with possessing them. The supreme court provided that the jury could only speculate that the defendant's knowledge of contraband in the common areas somehow alerted him to the presence of the contraband in Irvin's bedroom. The supreme court concluded that the State introduced no evidence from which a jury could reasonably conclude that the defendant knew the items he was charged with possessing were present or that he had dominion and control over them. Based on the evidence presented, the jury could only speculate to find the defendant guilty of constructive possession of the methamphetamine and the legend drug. Accordingly, the supreme court vacated the defendant's convictions and sentences and entered a judgment of acquittal on both charges. Id. at 404.
In the instant case, we find that there was sufficient evidence for Defendant's conviction. Prior to the search, the residence was surveilled, and Defendant's red truck was seen there numerous times both during the day and at night. Det. April saw Defendant drive that red truck and saw Defendant and Ms. Savoie in the truck together. Det. Kingsmill observed a red truck at the residence and agreed that it was constantly or almost constantly there. According to the information they received from a reliable confidential informant, the residence was occupied by Defendant and Ms. Savoie.
When the officers arrived, Defendant and Ms. Savoie were the only people at the property. Immediately upon entering the unlocked house, Det. April saw Ms. Savoie standing in the sole bedroom over her purse holding a smoking device.
Det. April testified that at some point, Ms. Savoie told him that she resided there with Defendant. Det. April stated he went into the bedroom and that it appeared Defendant and Ms. Savoie shared it. The detective indicated that he observed male clothing in the bedroom. The narcotics and paraphernalia were found in the sole bedroom of the residence and in the kitchen, both places that Defendant had access to and control of. Further, the kitchen table bore the words "Rob G," which indicates a connection to Defendant. Various drug paraphernalia was found in plain view on that table. A zippered pouch on the kitchen table contained cut straws, a pipe, and methamphetamine. Additionally, neither Ms. Savoie nor Defendant admitted or denied that the drugs belonged to them. Both of them sought a deal to avoid arrest that day and went together to make their cooperation official. For those reasons, we find that Defendant had constructive possession of the narcotics and paraphernalia.
The jury, which was presented by the defense with the hypothesis of innocence that the drugs were found in Ms. Savoie's house and belonged to her, not to Defendant, rejected that hypothesis by finding Defendant guilty of possession of the methamphetamine. Therefore, we find that a rational trier of fact could have found that the State presented evidence of the elements of possession of methamphetamine beyond a reasonable doubt.
Dismissal of Jurors
Defendant contends that two potential jurors, Charles Verdin and Chase Carcabasis, were improperly excluded because the judge applied the incorrect law regarding persons with felony convictions serving on a jury. He asserts that because this error occurred during voir dire, he could not move to quash the venire. Defendant argues that the error was structural and that a new trial should be granted.
The State avers that Defendant did not object to the dismissal of the potential jurors and that, therefore, this assignment was not preserved for appeal. The State further provides that the transcript does not reflect the dates on which the potential jurors were convicted of the felonies. It asserts that it is not possible to determine if either potential juror satisfied the new provisions in La. C.Cr.P. art. 401(A)(5). The State alleges that there is also no way to know if the State would have sought to exercise its remaining two peremptory challenges on the potential jurors at issue. The State argues that even if the jurors were improperly dismissed, it was harmless error.
Jury selection began on December 6, 2022. In reading the qualifications of a juror to the potential jurors, the judge stated, "You must not be under indictment for a felony or have been convicted of a felony." The judge asked if anyone had been convicted of a felony and not pardoned. The following exchange then occurred at a bench conference with prospective juror Charles Verdin:
MS. YACORZYNSKI: Mr. Verdin, do you have any felony convictions?
PROSPECTIVE JUROR: I do.
MS. YACORZYNSKI: Have you been pardoned for those prior convictions?
PROSPECTIVE JUROR: No.
MS. YACORZYNSKI: I don't know you personally, but you have been a defendant in this court.
THE COURT: Yes. So that you would not be qualified based upon that at this time. Thank you. You're excused.
Immediately thereafter, another bench conference with potential juror Chase Carcabasis was held as follows:
PROSPECTIVE JUROR: Nine years ago, shot in the leg, and it was
a crime scene. Somebody in the vehicle with me, was 17, and I think had some marijuana with them, and it was my vehicle. I was hit with the charge. It was expunged.
THE COURT: Was it a felony charge?
PROSPECTIVE JUROR: It was two felony charges and dropped to a misdemeanor.
THE COURT: You weren't convicted of a felony.
PROSPECTIVE JUROR: I think the felonies were expunged.
MS. YACORZYNSKI: You had an attorney with you that reduced those charges to a misdemeanor, correct.
THE COURT: You're good.
The minute entry from December 6, 2022, lists Charles Verdin as excused for cause by the court. It does not reflect that Chase Carcabasis was excused. Further, Mr. Carcabasis is not listed as a potential juror selected at random and questioned by the judge or by the parties. Therefore, while both Defendant and the State argue about the dismissal of both jurors, only Mr. Verdin was actually excused.
Effective August 1, 2021-over a year before jury selection in the instant case-the statute explaining the general qualifications of jurors, La. C.Cr.P. art. 401(A), provides in part that to serve on a jury, a person shall not be under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony offense within the five-year period immediately preceding the person's jury service.
The previous version of La. C.Cr.P. art. 401(A), which was effective from August 15, 2010 to July 31, 2021, stated that to serve on a jury, a person must not be under indictment for a felony or have been convicted of a felony for which he has not been pardoned by the governor.
In order to obtain a new trial on the basis of juror disqualification, a defendant must show that the grounds for disqualification could not have been ascertained through the exercise of reasonable diligence. State v. Williams, 18-112 (La.App. 5 Cir. 11/7/18), 259 So.3d 563, 579, writ denied, 18-2038 (La. 4/22/19), 268 So.3d 295. The question of a juror's qualifications is addressed to the sound discretion of the trial judge within the bounds prescribed by law, and although the trial judge's ruling in these matters is subject to review, it will not be disturbed in the absence of clear abuse. State v. Castillo, 13-552 (La.App. 5 Cir. 10/29/14), 167 So.3d 624, 640, writ denied sub nom. State ex rel. Castillo v. State, 14-587 (La. 11/7/14), 152 So.3d 172, and writ denied, 14-2567 (La. 9/18/15), 178 So.3d 145.
First, we find that Defendant's argument as to Mr. Carcabasis is misplaced. The record reflects that he was questioned but, ultimately, not excused. Therefore, any argument that he was improperly excused is misplaced.
Next, we find that Defendant raises this issue for the first time on appeal. The record does not reflect that defense counsel objected at the time potential juror Verdin was excused. To preserve the right to seek appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error as well as the grounds for that objection. La. C.Cr.P. art. 841. A new ground for an objection cannot be presented for the first time on appeal. State v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 664-65, writ denied, 06-1183 (La. 11/17/06), 942 So.2d 531. The Louisiana Supreme Court has consistently held that when a defendant fails to timely raise an objection to irregularities in the jury selection process, review of those irregularities are waived. State v. Parker, 041017 (La.App. 5 Cir. 3/29/05), 901 So.2d 513, 524, writ denied, 05-1451 (La. 1/13/06), 920 So.2d 235 (citing State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832). As such, we find this assignment was not preserved for appeal.
See State v. Johnson, 452 So.2d 1302, 1304 (La.App. 3d Cir. 1984). There, on appeal, the defendant complained that the trial court erred in excusing a prospective juror without proper cause or objection. The trial court took a roll call of the prospective jurors prior to voir dire examination. When Albert Bouillon's name was called, he was absent. The clerk mentioned that Mr. Bouillon was a deputy sheriff. The trial court then excused Mr. Bouillon from jury duty. The third circuit explained that the defendant failed to object and concluded that the assignment of error lacked merit.
Admission of Evidence
Defendant avers that a new trial is required. Defendant disputes the officers' testimony that Defendant told them where the narcotics were and, pursuant to some agreement that was allegedly violated, Defendant gave the officers information that led to an arrest. He argues that "although discovery of any statements made by the defendant and co-defendant was made, along with a request for other crimes evidence, the State never gave notice of intent to use such statements as required by La.C.Cr.P. Art. 768 or State v. Prieur and La.C.E. Art. 1104." He asserts that the officers' testimony violated his Fifth Amendment rights and were prejudicial. He contends that the State impermissibly used this inadmissible testimony to establish knowledge of the methamphetamine. Defendant argues that he did not provide information but, rather, that Ms. Savoie did. He contends that the admission of the testimony regarding the agreement was not harmless error.
Defendant argues that he is "entitled to have the charges vacated, or at least to have the statements excluded."
The State asserts that Defendant was willing to assist the officers in exchange for not being arrested. It cites to the testimony of Detectives April and Kingsmill and provides that Defendant and Ms. Savoie arrived at the law enforcement office together, met with detectives, completed paperwork, and provided information. The State contends that the evidence established that Defendant (as much as his girlfriend) initiated the conversation about offering their assistance in exchange for not being arrested. The State alleges that the defense attorney brought up the subject of the agreement during her cross-examination of both detectives and asserts that any objections defendant may have had were waived by counsel's decision to address the topic during cross-examination.
On December 6, 2022, prior to the start of trial, defense counsel discussed a motion in limine that she filed. She asked that the State not be allowed to allude to the alleged narcotics transaction between Defendant and Tammy Housend. The prosecutor agreed not to introduce evidence of the facts involving Ms. Housend and distribution.
During opening statements, the prosecutor stated that both Defendant and Ms. Savoie agreed to work with detectives to avoid arrest. At that time, counsel objected. At a bench conference, counsel stated, "Not going to be a resemblance to the charge in any way, and all it does is prejudice the jury to color them that he somehow was going to help law enforcement and not doing it to their satisfaction." The judge asked if counsel thought it was prejudicial. Defense counsel provided that it was prejudicial and not probative. She cited to La. C.E. arts. 402 and 403. The prosecutor argued that it was relevant because it goes directly to Defendant's knowledge of the narcotics and his guilty knowledge. He argued that Defendant agreed to work with the narcotics bureau to avoid arrest.
Defense counsel asserted that the State got a warrant because Defendant and Ms. Savoie did not cooperate to their satisfaction. She stated it was highly prejudicial "and as it relates to the potential for him to somehow help the Narcotics and because he didn't help the Narcotics, ultimately secured this warrant." She objected to any mention of it. Defense counsel also contended that it was not relevant whether Defendant offered to help law enforcement and that Ms. Savoie made the offer. The prosecutor asserted that Defendant "does not offer to assist law enforcement unless he knows that he's guilty."
The judge then overruled the objection and instructed the prosecutor not to spend a lot of time on this. When the prosecutor asked if the judge meant in opening statements or in the case-in-chief, the judge replied, "I think you need to tread carefully. That's what I will say." Defense counsel stated that they were starting to get into things the court already ruled upon. The judge explained that it is potentially relevant as to what Defendant may or may not have known. The judge then said that it may be difficult if it relates to the motion in limine. The prosecutor provided that it does not go near the motion in limine. The judge indicated that the argument as to potential knowledge is relevant and that it is not so prejudicial as to be excluded. The judge explained that it is a slippery slope. Later during the opening statement, the prosecutor said that despite the initial cooperation, Defendant and Ms. Savoie cut off contact with the detectives. Defense counsel objected, and the judge overruled the objection.
Defense counsel objected several times on the basis of relevance during Det. Kingsmill's testimony regarding Defendant's cooperation with narcotics detectives. At a bench conference after the prosecutor asked about Defendant's compliance with the agreement, the prosecutor explained that it appeared the judge was afraid he would run afoul of the motion in limine. He argued that everything he sought to introduce was independent and solely tied to the narcotics recovered. The judge interjected that the prosecutor was asking about drug dealers and what information Defendant provided. The judge indicated that it did not sound like it had to do "with the address." The judge explained, "If it had to do with issues involving other drug deals and that is very close, very close to the Motion in Limine." The prosecutor explained that he was seeking to get out that Defendant provided information that led to an arrest and the recovery of meth. The judge asked, "When and where?"
Defense counsel explained, "My argument is unless there is a nexus between what is recovered in this case that is at bar, and whatever future CI, I don't understand how it could possibly be relevant." The judge provided that the bigger issue was the potential prejudicial effect on Defendant regarding other crimes Defendant may have participated in. The judge summarized that the State previously argued that the relevance of the "information of the CI" was that Defendant agreed to participate when drugs were uncovered in the home and that this would indicate his guilt of possessing the items. The judge stated that other cases, other dealers, and what led to other arrests were not related to Defendant's culpability as to this charge. The prosecutor argued that it was related because Defendant avoided jail time by agreeing to cooperate. The judge said that the State presented information that Defendant was going to cooperate and that he provided information. The judge ruled that no information of other cases would come in and that it was prejudicial as other crimes evidence. The prosecutor argued that defendant had knowledge of methamphetamines in St. Charles Parish, and defense counsel interjected that Defendant was on trial for a specific location. The prosecutor again asserted that Defendant had knowledge of it. He stated that the State did not intend to elicit that Defendant was involved in anything else.
Defense counsel asserted that the prosecutor had already elicited information beyond the facts of the case. The judge ruled that they would not get into information provided in other arrests. The prosecutor said he was limited to the fact that Defendant initially cooperated. The judge said, "And then he provided information, and that that [sic] led to the arrest of other people. That's what you've gotten out so far, which is a lot." Defense counsel asserted that there was no evidentiary value to begin with. She asked the judge to admonish the prosecution and direct the State to move on to a new line of questioning. The prosecutor argued that he was unable to get the information out because of counsel's objections. The judge told the prosecutor that he could not "bootstrap knowledge of another case to his constructive knowledge of meth in this house."
The prosecutor reiterated that the judge said he could say that Defendant cooperated, that he provided knowledge, and that arrests were made based on that knowledge. Defense counsel explained that she understood that it was related to Defendant's knowledge that there was contraband in the house and that he volunteered based on that knowledge. She then questioned how any future involvement was related. The prosecutor said he was satisfied with what he could introduce but had not had the opportunity to do so. The judge averred that it had come out and that they did not need to go any further. Defense counsel renewed her objection as to relevance and stated it was highly prejudicial. She asserted that the probative value was far outweighed by the prejudice to Defendant. Counsel mentioned her concern that the jury would hear information that would result in a mistrial if the State went any further. The bench conference then concluded.
On appeal, Defendant cites to State v. Lewis, 539 So.2d 1199 (La. 1989), as support. In Lewis, the defendant was charged with felony theft in Rapides Parish. With the assistance of counsel, he negotiated a plea bargain agreement with the Rapides Parish District Attorney and the U.S. Attorney for the Western District of Louisiana. Under the agreement, the defendant agreed to give "full and complete cooperation" to a state investigation of thefts of farm equipment and a federal arson investigation. In exchange, the State agreed to charge the defendant with only a single count of misdemeanor theft or attempted theft and "agreed not to use against defendant any information he provided or any evidence derived from such information." Thereafter, the Rapides Parish District Attorney came to believe the defendant violated the agreement by not fully cooperating with the federal arson investigation and, thus, decided the agreement was breached. As a result, Rapides Parish reactivated the initial felony charge. Additional theft charges were brought against the defendant in other parishes, including Avoyelles Parish, where the district attorney intended to use against the defendant a statement he provided to Rapides Parish officials under the plea agreement. The defendant filed a motion to suppress and a motion in limine, both of which were denied by the Avoyelles Parish trial court. Analogizing the plea negotiations to a civil contract, the court concluded that the agreement was void because both parties apparently were mistaken as to what was to be exchanged in the contract, and since the defendant had provided the inculpatory statements under the belief that the evidence could not be used against him, the statements were not voluntary or admissible in either parish.
After review, we find that the instant case is distinguishable from Lewis because this case does not involve plea negotiations. The record does not indicate that Defendant was represented or that prosecutors were involved. In Lewis, the supreme court cited to La. C.E. art. 410, which states:
A. General rule. Except as otherwise provided in this Article, evidence of the following is not, in any civil or criminal proceeding, admissible against the party who made the plea or was a participant in the plea discussions:
(1) A plea of guilty or of nolo contendere which was later withdrawn or set aside; (2) In a civil case, a plea of nolo contendere;
(3) Any statement made in the course of any court proceeding concerning either of the foregoing pleas, or any plea discussions with an attorney for or other representative of the prosecuting authority regarding either of the foregoing pleas; or
(4) Any statement made in the course of plea discussions with an attorney for or other representative of the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn or set aside.
B. Exceptions. However, such a statement is admissible:
(1) In any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it; or
(2) In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
We find that La. C.E. art 410 is inapplicable here as evidence of a plea or plea discussions is not at issue.
Defendant also relies on State v. Hankerson, 604 So.2d 1330 (La.App. 1st Cir. 1992). There, after his arrest, Gregory Hankerson admitted that the cocaine found in the pocket belonged to him; however, both brothers initially disavowed knowledge of the cocaine in the bedroom. Later, they informed investigating officers that the defendant (who was living with his mother in Fort Lauderdale, Florida, and not with his brothers in Baton Rouge) and Gregory Hankerson had procured the cocaine in Florida and had it transported to Baton Rouge by another individual. The brothers offered to arrange a large transaction in order to obtain a letter confirming their assistance to law enforcement officers. Although the State agreed to this arrangement (and a letter ultimately was sent to the trial court), the agreement was terminated on the advice of the Hankersons' attorney and was never completed. Id. at 1331. On appeal, the defendant claimed that the trial court erred by permitting the State to introduce admissions made by him and his brother, Gregory, to Captain Don Connor at the sheriff's department office. He claimed the statements were inadmissible because they were induced by an offer by Captain Connor to write the letter, and therefore, the statements were not admissible under La. R.S. 15:451.
In Hankerson, the first circuit explained that Captain Connor interviewed the Hankerson brothers shortly after they were booked. He read them the statute under which they would be charged, including the penalty in effect at that time, which provided that the sentencing court can impose a term making the accused probation or parole eligible only if the state certifies that the accused has rendered substantial assistance to law enforcement officers. After the Hankersons expressed an interest in arranging for a large delivery of cocaine, Captain Connor advised them that an agreement of that nature could be made only if the brothers first confessed to the charges for which they were arrested. He obtained an attorney for them, and after consultation with counsel in which the defendant apparently was advised to cooperate, the defendant agreed to the terms required by Captain Connor and revealed detailed information concerning the source of the cocaine at issue and the method of its procurement. In its analysis, the first circuit relied on Lewis, supra. Id.
Also in Hankerson, the appellate court found that Captain Connor's testimony reflected that he first advanced the proposal that the brothers confess, that he required the defendant to confess to this crime as a predicate for entering into an alliance to set up a future transaction, and that the defendant's successful participation in that scheme would result in a substantial benefit letter to impact his sentence. The court explained that Captain Conner required a confession in return for future assistance with the sentence. The first circuit concluded that such actions rendered the statements made in response to the requirement the inadmissible product of unlawful inducement. After concluding that the statements were the product of illegal inducements, the court found that the erroneous admission of the statements was not harmless error. Id. at 1334.
We find that the instant matter is distinguishable from the facts in Hankerson. Most importantly, Defendant here offered to cooperate to avoid arrest. Further, Defendant was not under arrest at the time the agreement was made. Rather, it was first brought up at the residence, and Defendant and Ms. Savoie went to the bureau at a later time to more thoroughly establish the agreement and sign related paperwork. Arguably, unlike in Hankerson, Defendant here did not confess. Instead, he agreed to provide information related to other drug dealers, but no specific statement by Defendant was introduced.
Further, Defendant argues that Ms. Savoie agreed to cooperate and that he did not. However, the record reflects that they both engaged in the agreement. Det. April testified that in Defendant's presence, Ms. Savoie brought up the possibility of cooperating with the narcotics bureau in order to avoid being arrested. However, he also stated that Defendant was involved in the discussion. Det. Kingsmill specifically testified that Defendant expressed an interest in assisting the special investigations division with further investigations and indicated he would work with the narcotics detectives to avoid going to jail. Det. April testified that Defendant and Ms. Savoie agreed to cooperate with law enforcement and to provide information. As a result of that discussion and their agreement to provide information, Ms. Savoie and Defendant were not arrested on February 17, 2021. They were advised to contact law enforcement in a day or two. Shortly thereafter, both Defendant and Ms. Savoie voluntarily went to the law enforcement office together, met with detectives, completed paperwork, and provided information. Det. April testified that Defendant provided information that led to one arrest. Therefore, we find that the record demonstrates that Defendant was fully involved in all discussions and agreements to cooperate and that he provided some information based on his agreement.
Although Defendant does not provide law on the admissibility of his agreement to cooperate, he argues that the agreement was inadmissible and that its admission was not harmless error. La. C.E. art. 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In deciding the issue of relevancy, the trial court must determine whether the evidence bears a rational connection to the facts at issue in the case. State v. Breaux, 22-581 (La.App. 5 Cir. 5/10/23), 366 So.3d 727, 735. Even if relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. C.E. art. 403. Any inculpatory evidence, however, is "prejudicial" to a defendant, especially when it is "probative" to a high degree. State v. Thomas, 19-582 (La.App. 5 Cir. 7/29/20), 300 So.3d 517, 527, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053. The term "unfair prejudice," as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged. State v. Frickey, 22-261 (La.App. 5 Cir. 3/1/23), 360 So.3d 19, 50. A district court's ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. State v. Ard, 20-221 (La.App. 5 Cir. 4/28/21), 347 So.3d 1046, 1055. We find that Defendant's agreement to cooperate was relevant to his knowledge of the drugs in the residence. This evidence was not unfairly prejudicial. It did not confuse the issues, mislead the jury, or cause a delay or waste of time. Therefore, we find that the judge did not abuse her discretion in ruling that the cooperation agreement was admissible. As to Defendant's argument that the State never gave notice of its intent to use his statements, we find that no actual statement was introduced.
Excessive Sentence
Defendant contends that the sentence is excessive, and the trial judge failed to give any reasons for imposing the maximum sentence or to mention La. C.Cr.P. art. 894.1.
The State asserts that the assignment lacks merit and provides Defendant's criminal history as support.
Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Smith, 16-406 (La.App. 5 Cir. 8/30/17), 227 So.3d 337, 363, writs denied, 17-1643 (La. 9/14/18), 252 So.3d 481, and 17-1660 (La. 9/14/18), 252 So.3d 482. This Court has held that when the specific grounds for objection to the sentences, including alleged noncompliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are not included in the bare review for constitutional excessiveness, and the defendant is precluded from raising these issues on appeal. State v. Clark, 19-518 (La.App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585. Here, Defendant did not file a motion to reconsider the sentence or otherwise object to the sentence. Therefore, Defendant is not entitled to a review of whether the trial court complied with La. C.Cr.P. art. 894.1 in this appeal and is limited to a review of his sentence for constitutional excessiveness.
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Rubio, 22-205 (La.App. 5 Cir. 12/28/22), 357 So.3d 413, 421. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense, or imposes needless and purposeless pain and suffering. State v. Cepriano, 21-262 (La.App. 5 Cir. 3/30/22), 339 So.3d 32, 46.
According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Woods, 20-73 (La.App. 5 Cir. 9/9/20), 303 So.3d 403, 406, writ denied, 21-27 (La. 2/17/21), 310 So.3d 1150. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Id.
In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Hayman, 347 So.3d at 1043 . However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Picard, 19593 (La.App. 5 Cir. 3/17/21), 316 So.3d 129, 140, writ denied, 21-570 (La. 6/22/21), 318 So.3d 704.
Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Hayman, supra. The trial judge is granted great discretion in imposing a sentence, and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Brown, 01-41 (La.App. 5 Cir. 5/30/01), 788 So.2d 694, 70405.
In the instant case, Defendant was convicted of possession of methamphetamine weighing less than two grams in violation of La. R.S. 40:967(C)(1). As such, the sentencing range was imprisonment with or without hard labor for up to two years. Additionally, a fine of up to $5,000 could be imposed. Here, Defendant was sentenced to two years imprisonment with the Department of Corrections. No fine was imposed. As such, he was sentenced to the maximum term of imprisonment, but not the maximum sentence.
Other subsections of La. R.S. 40:967 have since been amended, but the amendments do not pertain to the sentencing range for the instant conviction.
Regarding the nature of the crime and the background of the offender, the record provides little information. The evidence at trial established that methamphetamine, narcotics paraphernalia, scales, and small bags were found in various areas of the residence. Defendant agreed to cooperate with the police to avoid being arrested, but he was later arrested for failing to fully comply with that agreement. Defendant was approximately 43 years old at the time of the offense and was on probation at that time. In a pretrial motion, defense counsel requested that the State be prohibited from introducing evidence that Defendant was then "being supervised on probation and/or parole, resulting from a prior conviction of vehicular homicide." After the verdict, while discussing a time for the sentencing hearing and the imposition of a pre-sentence bond, the prosecutor stated that defendant was "facing 12 years on a parole/probation revocation." Defense counsel indicated that there was a probation issue in another division. The judge then set pre-sentence bail. As such, Defendant has a criminal history. The record does not contain any additional details about Defendant.
In its brief, the State provides a detailed criminal record. The State alleges that Defendant has been arrested at least 13 times over a span of several decades and that those arrests include criminal damage to property, indecent behavior with juveniles, simple battery, aggravated burglary, and vehicular homicide. The State asserts that in 2007, he pled guilty and was placed on probation in Lafourche Parish for possession of Hydrocodone and Alprazolam and that he was twice found in contempt of court during his drug court proceedings. The State avers that Defendant has been an active offender since as far back as 1994. However, the State provides no record citation or source for this history, and it is not reflected in the record.
As to the third factor, sentences imposed for similar crimes in this and other courts, jurisprudence provides support for the imposed sentence.
In State v. Johnson, 35,908 (La.App. 2 Cir. 4/3/02), 813 So.2d 1180, the second circuit affirmed a two-year sentence for possession of cocaine. There, an agreement had been reached where the defendant was allowed to enter a guilty plea to the reduced charge of possession of cocaine. The trial court imposed a sentence of two years imprisonment at hard labor, recommended that the defendant receive in-house substance abuse treatment, and denied a motion to reconsider. The defendant appealed and argued that his sentence was excessive. The second circuit affirmed the sentence and noted that the trial court considered a pre-sentencing investigation report containing information about the defendant's social history, health, education, and employment record. The second circuit also provided that just several months before committing the cocaine offense, the defendant had been arrested for possessing cocaine with the intent to distribute. Id. at 1183.
In State v. Guillory, 21-590 (La.App. 3 Cir. 3/9/22), 350 So.3d 893, the trial court sentenced the defendant to two years at hard labor and a $2,500 fine for possession of cocaine. However, the trial court recalled the monetary fine and amended the sentence "to where [Defendant] is not paying any fines on the possession of crack cocaine[.]" The third circuit explained that because the court suspended the payment of any fines, the defendant did not receive the maximum sentence. The court further stated that the record showed that the defendant was a repeat drug offender who was sentenced to terms of incarceration in the past for lengths of time greater than the term of imprisonment imposed. The court did not find that the sentence imposed was excessive. Id. at 900.
The defendant was sentenced under La. R.S. 40:967(C)(1) since the quantity of cocaine possessed was not determined. Guillory, 350 So.3d at 898.
In State v. Durham, 53,922 (La.App. 2 Cir. 6/30/21), 321 So.3d 525, cited by the State, the trial court sentenced the defendant, convicted of possession of a Schedule II CDS with an aggregate weight of less than two grams, to serve the maximum two years imprisonment at hard labor and ordered the sentence to run consecutively with his prior conviction after revocation of probation with credit for time served. Id. at 535. The trial court noted that the only mitigating factor was the defendant's age but that his criminal history included a misdemeanor conviction for violation of a protective order, an arrest for domestic abuse battery (which was pled down to disturbance of the peace), and a conviction for aggravated assault with a firearm. The trial court expressed that there was an undue risk that the defendant would commit another offense because the defendant, as a second-felony offender, chose to commit another felony while on probation and showed no remorse for his actions. Given the criminal history, the trial court found that he was in need of correctional treatment. Id. at 536.
Here, in light of the foregoing, we find that the trial judge did not abuse her discretion in imposing the two-year sentence.
Errors Patent Review
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir. 1990).
La. C.Cr.P. art. 920(2) states that an error patent is "[a]n error that is discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence."
There is a discrepancy between the transcript and the sentencing minute entry. Although the minute entry reflects that Defendant was "given notice under La. C.Cr.P. art. 930.8 of 2-year prescriptive period for post-conviction relief", the transcript does not show any advisal. Where there is a discrepancy between the transcript and the minute entry, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Becnel, 18-549 (La.App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022. Accordingly, we advise Defendant by way of its opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Barnett, 18-254 (La.App. 5 Cir. 4/3/19), 267 So.3d 209, 235.
DECREE
For the foregoing reasons, we affirm Defendant's conviction and sentence.
AFFIRMED
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: