STATE OF LOUISIANA VERSUS DARREN K. LLOYD
NO. 21-KA-645
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
August 24, 2022
MARC E. JOHNSON JUDGE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 20-3411, DIVISION “L” HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.
AFFIRMED
MEJ
JJM
CONCURS WITH REASONS
FHW
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Jennifer C. Voss
Joshua K. Vanderhooft
COUNSEL FOR DEFENDANT/APPELLANT, DARREN K. LLOYD
Kevin V. Boshea
JOHNSON,
Defendant, Darren K. Lloyd, appeals his conviction for possession with intent to distribute cocaine less than 28 grams and habitual offender sentence from the 24th Judicial District Court, Division “L“. For the following reasons, we affirm Defendant‘s conviction and sentence.
On June 29, 2020, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession with intent to distribute cocaine weighing less than 28 grams in violation of
The State and defense counsel filed several motions and notices. On May 19, 2021, the State filed a Notice of Expert Witness, wherein the State provided that it intended to call Sergeant Nicki Garnier as an expert. On May 24, 2021, defense counsel filed a motion in limine to exclude expert witness testimony from Sgt. Garnier. On May 25, 2021, the trial court denied Defendant‘s motion in limine, and counsel objected.
At trial, David Webster with the Jefferson Parish Sheriff‘s Office testified that on May 28, 2020, he arrested Defendant. He stated that on that day, he was assigned to the strategic engagement team, and they were conducting proactive patrols in the area of “Elm and Laurel,” which he indicated as near the Shrine on Airline off of Airline Highway. Detective Webster described the area as a high-crime area that is “constantly plagued with some shooting incidents, narcotics distribution or homicides.” He indicated that there were “roughly ten or twelve members” of his unit on proactive patrol and that he was patrolling alone. Detective Webster stated that he responded to a 9-1-1 dispatch1 on May 28th to a nearby location regarding “several males that had guns and were causing a disturbance in the area.” He stated that once he arrived at the location, he turned on his “overhead lights and got out of [his] unit.” He wore plain clothing with an outer ballistic vest marked “sheriff.” The detective testified that he was walking towards the large group of people when he noticed Defendant was clutching his waistband. He provided that his attention was drawn to Defendant because he was the only person whose demeanor changed. Detective Webster stated that Defendant turned around and began to hastily walk away. He said Defendant was the only person that immediately moved towards “the cut which is a common area ... frequent to use to evade police.” He indicated that as he called to Defendant, he noticed Defendant pick up his pace and begin sprinting.
Detective Webster testified that he chased Defendant and simultaneously called on his radio to have additional units “set up a perimeter so [they] can contain him and then eventually move the perimeter in.” He stated that he was in constant communication with his other team members, and he maintained a constant visual of Defendant. He remained approximately 20 to 30 feet behind Defendant. Detective
Detective Webster provided that he picked up the dropped item and upon doing so he recognized the item to be narcotics. He then continued the foot pursuit. He described the collected narcotics as “a sandwich bag tied at the top containing fifty-eight individually packaged crack cocaine rocks.” He stated that each rock of crack cocaine was packaged in the same manner as the larger bag. Defendant was apprehended shortly after the detective retrieved the item and complied with police orders. Detective Webster acknowledged that a search incident to arrest was conducted and Defendant had “two-hundred and forty dollars in tens and twenties” on his person. Defendant did not have any other drug paraphernalia. Defendant was arrested for “possession with intent of crack cocaine.” In explanation of this particular charge, Detective Webster stated that, in his professional opinion and based on his experience, “fifty-eight individually bagged rocks that were contained individually along with the denominations of US currency that he had, tens and twenties, were consistent with street level narcotics distribution,” and he believed Defendant was selling the narcotics. Detective Webster stated that the incident occurred during the daylight hours and acknowledged that the police report reflected that it was 7:20 p.m.
Michael Cole, a forensic chemist at the Jefferson Parish Sheriff‘s Office crime lab, was accepted as an expert in the examination and analysis of controlled dangerous substances. He indicated that he analyzed evidence in the instant case and created a report on his findings. Mr. Cole acknowledged that he only analyzed nine individually wrapped items in this case. He stated that the total gross weight of the evidence was approximately 15 grams for all of the individual bags, and he tested a net weight of over two grams. Mr. Cole testified that he determined that the tested material contained cocaine, a controlled dangerous substance.
Sgt. Nicki Garnier with the narcotics division of the Jefferson Parish Sheriff‘s Office was recognized as an expert in “the field of packaging, distribution, sales and value” of illegal narcotics.2 He acknowledged that he reviewed the crime lab report in this case. He noted that the evidence at issue was a large, clear, plastic bag containing 58 clear plastic bags holding an off-white rock-like substance which was consistent with crack cocaine. Sgt. Garnier provided that the size of the rocks in the individual bags looked like “they might be ten to twenty dollar rocks.” He indicated that the tested weights noted in the crime lab report supported his assessment of the cost of the rocks. He testified that usually a narcotics distributor would package items like this to “easily be able to reach in, grab whatever is on his person, make a quick transaction; and then it will be over faster.”
At the conclusion of the trial, the six-person jury unanimously found Defendant guilty as charged.
On June 23, 2021, defense counsel filed a Motion for New Trial. A habitual offender bill of information was filed that same date. The State alleged that on October 30, 2018, Defendant was sentenced on separate counts of obscenity in violation of
On June 24, 2021, the trial court denied the motion for new trial. Immediately thereafter, the trial court sentenced Defendant to 10 years imprisonment at hard labor. Defendant then stipulated to being a habitual offender. Defendant executed a Waiver of Constitutional Rights - Plea of Guilty Multiple Offender form. The trial judge vacated the original sentence and imposed an enhanced sentence of 58 years imprisonment at hard labor without benefit of probation or suspension of sentence.
On June 25, 2021, Defendant filed a motion to reconsider sentence that appears to only address his enhanced sentence. On July 8, 2021, the trial court denied the motion to reconsider. On July 19, 2021, Defendant filed a Motion for Appeal, which the trial court granted that day. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Defendant alleges: 1) the possession with intent to distribute cocaine less than 28 grams guilty verdict is inconsistent with the evidence and law; 2) the trial court erred by denying the motion for new trial; 3) the trial court erred in imposing the 58-year sentence for possession with intent to distribute cocaine less than 28 grams; 4) the trial court erred in denying the motion to reconsider sentence; 5) the trial court erred in denying the motion in limine concerning expert testimony; and, 6) the trial court erred in permitting Sgt. Nicki Garnier to testify as an expert witness.
LAW AND ANALYSIS
Sufficiency of the Evidence and Denial of Motion for New Trial3
Defendant alleges that there was insufficient evidence to prove either that he possessed
The State argues that the record demonstrates that the State proved beyond a reasonable doubt that Defendant violated
The State asserts that Sgt. Garnier provided information that would have assisted the trier of fact in understanding the evidence and arriving at relevant factual determinations. The State contends that the expert testimony and the facts established at trial enabled the jury to recognize the significance of the amount of the drugs, the individual packaging of the crack rocks, the lack of drug paraphernalia on Defendant‘s person to smoke or inject the drug, and the denominations of cash found on Defendant. The State avers that any rational trier of fact could have found beyond a reasonable doubt that Defendant knowingly and intentionally possessed the crack cocaine and had the requisite specific intent to distribute the illegal substance.
The question of sufficiency of evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal under
Pursuant to
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Snavely, 99-1223 (La. App. 5 Cir. 4/12/00); 759 So.2d 950, 958, writ denied, 00-1439 (La. 2/16/01); 785 So.2d 840.
The requirement 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. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10); 27 So.3d 297. 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. Miller, 20-182 (La. App. 5 Cir. 12/23/20); 308 So.3d 1246, 1256, writ denied, 21-233 (La. 4/27/21); 314 So.3d 838. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness‘s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. Caffrey, supra. “The reviewing court is not permitted ‘to decide whether it believes the witness or whether the conviction is contrary to the weight of the evidence.‘” Id. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95); 661 So.2d 442, 443; State v. Chester, 19-363 (La. App. 5 Cir. 2/3/21); 314 So.3d 914, 944, writ denied, 21-350 (La. 6/8/21); 317 So.3d 321.
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. Williams, 05-59 (La. App. 5 Cir. 5/31/05); 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense,
When circumstantial evidence forms the basis of a conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Williams, 99-223 (La. App. 5 Cir. 6/30/99); 742 So.2d 604, 608. To preserve the role of the fact-finder, i.e., to accord the deference demanded by Jackson, the Louisiana Supreme Court has further subscribed to the general principle
In this case, Defendant was convicted of possession with intent to distribute cocaine in violation of
Possession of a controlled dangerous substance can be established by actual physical possession or constructive possession, and the determination of whether sufficient possession exists to convict is dependent upon the facts of each case. 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. Actual possession amounts to physical custody of the object. State v. Williams, 16-32 (La. App. 5 Cir. 8/24/16); 199 So.3d 1205, 1212. Constructive possession is when the object is not in the person‘s physical custody but is under his dominion and control such that he has the ability to reduce the object to actual possession. Id.
Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. State v. Faciane, 17-224 (La. App. 5 Cir. 11/15/17); 233 So.3d 195, 206, writ denied, 17-2069 (La. 10/8/18); 253 So.3d 797. The intent to distribute may be established by proving circumstances surrounding the defendant‘s possession which gave rise to an inference of such intent. Such circumstances include (1) previous attempts to distribute; (2) whether the drugs are in a form consistent with distribution; (3) the amount of the drugs; (4) expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute. Id. Specific intent is a legal conclusion to be resolved by the fact-finder. State v. Martin, 13-34 (La. App. 5 Cir. 6/27/13); 121 So.3d 170, 175, writ denied, 13-1744 (La. 2/7/14); 131 So.3d 861.
In Martin, 121 So.3d at 175-76, this Court found that a rational trier of fact could have found the evidence sufficient under the Jackson standard to show that the defendant possessed cocaine with the intent to distribute it. The State introduced evidence that showed the defendant possessed 6.15 grams of cocaine, which was divided and packaged into fourteen smaller quantities. Also, the State presented expert testimony that the division of the cocaine into smaller amounts was consistent with distribution and inconsistent with personal use. This Court noted that there was no testimony as to whether 6.15 grams of cocaine was a quantity consistent with
In State v. Wade, 36,295 (La. App. 2 Cir. 10/23/02); 832 So.2d 977, 983, writ denied, 02-2875 (La. 4/4/03); 840 So.2d 1213, the second circuit found that the evidence was sufficient to support a finding of intent to distribute cocaine even though no money, weapon, cellular telephone, pager, or crack pipe was found on the defendant‘s person at the time of his arrest. The defendant, upon his arrest, was carrying seven individually wrapped rocks of crack cocaine in his front pocket. The State‘s expert witness testified that the total weight of cocaine discovered on the defendant‘s person, 9.2 grams, was not a “personal use amount” and explained that each hundred-dollar rock would likely have been divided into “dime bags.” Id.
In State v. Vanburen, 08-824 (La. App. 4 Cir. 12/30/08); 3 So.3d 552, 556, writ denied, 09-206 (La. 10/30/09); 21 So.3d 273, two officers testified that they witnessed the defendant reach into his pocket and discard an object. Subsequent testing by the State confirmed that the discarded object was cocaine. The appellate court stated that this evidence indicated that the defendant knowingly possessed the contraband and then discarded it.4
Here, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to show that Defendant possessed the cocaine with the intent to distribute it. Detective Webster testified that he maintained a constant visual of Defendant as he chased him and that he remained approximately 20 to 30 feet behind Defendant. He testified that he saw Defendant throw something from his waistband toward the side of a car. He denied that there was anyone else in the area that could have dropped something there at that time.
Detective Webster testified that he picked up the discarded item and immediately recognized it to contain narcotics. He described the collected narcotics as “a sandwich bag tied at the top containing fifty-eight individually packaged crack cocaine rocks.” He stated that each rock of crack cocaine was packaged in the same manner as the larger bag. At the time of his arrest, Defendant had “two-hundred and forty dollars in tens and twenties” on his person. Defendant did not have any other drug paraphernalia. Detective Webster stated that, in his professional opinion and based on his experience, “fifty-eight individually bagged rocks that were contained individually along with the denominations
Additionally, Mr. Cole, the forensic chemist testified that the total gross weight of the evidence was approximately 15 grams for all of the individual bags and that he tested a net weight of over two grams. Mr. Cole testified that he determined the tested material contained cocaine.
Sgt. Garnier was recognized as an expert and stated that the evidence at issue was a large, clear, plastic bag containing 58 clear plastic bags holding an off-white rock-like substance which was consistent with crack cocaine. Sgt. Garnier provided that the size of the rocks in the individual bags looked like “they might be ten to twenty dollar rocks.” He indicated that the tested weights noted in the crime lab report supported his assessment of the cost of the rocks. He further testified that usually a narcotics distributor would package items like this to make transactions faster. Sgt. Garnier stated that it was not typical for a user to carry that amount of cocaine on his person and that each individual bag contained “one hit, one high” for a user. He pointed out that it is not typical for users to buy in bulk. Sgt. Garnier acknowledged that a lack of paraphernalia or smoking devices is consistent with someone that is distributing rather than using.
The jury reviewed all the evidence, heard all the testimony, and evidently believed the testimony, concluding that Defendant possessed and intended to distribute the cocaine. Possession may be inferred from the fact that an officer saw Defendant discard the cocaine while he maintained a constant visual of Defendant, and no one else was around. As in Martin, Defendant‘s intent to distribute may be inferred from the individual packaging of the cocaine and the lack of personal paraphernalia.5 Further, the evidence at trial showed that the monetary denominations found on Defendant at the time of his arrest were consistent with Sergeant Garnier‘s estimated worth of the individual bags.6 The jury believed the officer‘s and expert‘s testimony and
Imposition of Sentence and Denial of Motion to Reconsider Sentence7
Defendant challenges his 58-year sentence and the trial court‘s ruling on the motion to reconsider sentence. Defendant argues that only one of his prior convictions is classified as a crime of violence. Defendant further states that the offenses in the habitual offender bill stem from three time periods across 2015, 2016, and 2018. Defendant avers that viewed in a light most favorable to the prosecution, Defendant threw down a bag containing two grams of cocaine. Defendant argues that there was no evidence at trial that he sold or attempted to sell any controlled dangerous substance or that he fought or struggled with the police upon his arrest. Defendant avers that there is no indication of any violence, drug trafficking, or drug consumption. He states that the offense did not occur in a school zone or any other protected area. Defendant contends that his criminal history does not place him in the category of worst possible offender, and his conduct is not as severe as others similarly situated. He asserts that a 58-year term of imprisonment is essentially a life sentence for him. Defendant concludes that the sentence is overly harsh and excessive. He also asserts that the motion to reconsider sentence should have been granted.
The State contends that the record reveals that the trial court did not abuse its broad sentencing discretion. The State asserts that a comparison of sentences imposed for similar crimes is complicated by the changes to the penalty provisions in recent years as to both
Prior to the imposition of the original sentence, the trial court stated that it considered
Defense counsel filed a timely motion to reconsider sentence under
A hearing on the motion to reconsider was held on July 8, 2021. No oral arguments were presented at the hearing. The trial judge stated that, on June 23, 2021, the court provided reasons for the sentence imposed. The judge also said that he did not find any reasons to reconsider the sentence. He stated, “What I will object to is that I never said that I was sentence [sic] him to - Multiple Bill him to one year per rock.” The judge noted that he never insinuated that, and he objected to that assertion in the motion. As such, the court denied the motion to reconsider sentence.
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Calloway, 19-335 (La. App. 5 Cir. 12/30/19); 286 So.3d 1275, 1279, writ denied, 20-266 (La. 7/24/20); 299 So.3d 69. 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. Alvarez, 08-558 (La. App. 5 Cir. 8/31/10); 47 So.3d 1018, 1022.
According to
The penalty for possession with intent to distribute cocaine weighing less than 28 grams is imprisonment, with or without hard labor, for not less than one year nor more than 10 years, and in addition, a fine of not more than $50,000 may be imposed. Defendant was originally sentenced to 10 years imprisonment at hard labor. The State filed a habitual offender bill that alleged that Defendant was convicted of two separate counts of obscenity, contraband in a correctional center, battery of a correctional facility employee, possession of a weapon by a convicted felon, aggravated assault with a firearm, and false representation of cocaine. Defendant stipulated to being a quadruple-felony offender. The original sentence was vacated and Defendant was sentenced as a habitual offender. Under
was vacated, and Defendant was subsequently sentenced as a quadruple-felony offender to 58 years imprisonment at hard labor without benefit of probation or suspension of sentence.
If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the offender shall be sentenced to a determinate term not less than the longest prescribed for a first conviction but in no event less than 20 years and not more than his natural life. See
As previously stated, the record indicates that Defendant stipulated to his status as a habitual offender after being advised he would be sentenced to 58 years imprisonment if the trial court accepted his plea. Under
The record reflects that Defendant agreed to stipulate to his status as a quadruple-felony offender in exchange for the 58-year sentence he received. The Waiver of Rights form executed by Defendant indicates that he was advised and understood that he would receive a 58-year sentence in exchange for admitting his status as a quadruple-felony offender. During the plea colloquy, the trial judge advised Defendant that if he accepted the guilty plea, he would be sentenced to “fifty-eight years at hard labor, department of corrections, without benefit of probation or suspension of sentence.” Defendant indicated he understood his sentence. Defendant was subsequently sentenced to 58 years imprisonment at hard labor without the benefit of probation or suspension of sentence. Because Defendant received the same sentence,
Denial of Motion In Limine and Expert Witness
Defendant notes that a motion in limine to exclude Sgt. Garnier‘s testimony was filed prior to trial. He argues that the trial court erred in permitting Sgt. Garnier to testify that, in his opinion, Defendant was involved in the distribution, attempted distribution, or intended distribution of cocaine. Defendant avers that the testimony was tantamount to an opinion that he was guilty. He contends that it was an indirect, abstract inference as to the ultimate issue in the case. Defendant alleges that Sgt. Garnier‘s testimony did not aid the jury in its fact-finding process. He argues that, while the witness discussed that crack cocaine is normally smoked, Sgt. Garnier specifically stated that there are other ways to use it. Defendant contends that if that is true, then the fact that he was not found with a pipe in his possession is irrelevant as to the question of his intent to distribute. He concludes that the motion in limine should have been granted.
The State avers that Defendant‘s contention that Sgt. Garnier‘s testimony did not aid the jury in the case is incorrect. The State alleges that the sergeant testified that crack cocaine could not be used without either a crack pipe or needle. The State argues that this testimony aided the fact-finder at trial. The State contends that Defendant fails to consider that the jurisprudence demonstrates that an absence of paraphernalia to smoke or inject crack cocaine is a relevant factor for consideration by a jury.
The State next provides that Defendant did not preserve for review the argument that the sergeant‘s testimony was tantamount to an opinion that Defendant was guilty of the crime charged. The State notes that Defendant‘s pre-trial Motion in limine to Exclude Expert Witness Testimony only indicated that the potential testimony ran the risk of unintentionally rendering an opinion that Defendant was guilty of distribution wherein the risk of prejudice and of reversible error consequently increases and that the introduction of his testimony would run the risk of blurring the lines between his expertise and his opinion as to Defendant‘s guilt or innocence. The State argues that during voir dire of the expert at trial, the defense did not object to any specific testimony offered by the expert witness. The State acknowledges that the requirements of
The State contends that if it is not found waived, Defendant is still not entitled to relief. The State argues that Sgt. Garnier‘s testimony did not express an opinion as to the guilt or innocence of Defendant nor was such an opinion solicited through the presentation of a hypothetical situation. The State alleges that the expert testimony did not run afoul of
On May 19, 2021, the State filed a Notice of Expert Witness wherein it provided that it intended to call Sgt. Garnier as an expert in the field of illicit narcotics, packaging, quantity, value, and distribution. The State asserted that the expert witness would show that the quantity and packaging of the crack cocaine seized as well as the amount of currency located on Defendant‘s person are indicative of the intent to distribute street-level narcotics.
On May 24, 2021, defense counsel filed a motion in limine to exclude Sgt. Garnier‘s expert testimony. Counsel noted that she took no exception to Sgt. Garnier‘s experience or expertise but instead objected that expert testimony is unnecessary and without value in assisting the jury in determining Defendant‘s guilt or innocence. Counsel contended that the only potential assistance Sgt. Garnier could provide the jury in its fact-finding mission would be to enlighten the jury on the cost of purchasing controlled dangerous substances, which counsel asserted is not important here. Defense counsel argued that the potential testimony runs the risk of unintentionally rendering an opinion that Defendant was guilty of distribution, wherein the risk of prejudice and hence of reversible error consequently increases. Counsel contended that the testimony lacks value, undermines the jury, and runs the risk of opinion testimony that would constitute reversible error.
On May 25, 2021, prior to the start of trial, a hearing was held on the motion in limine. Defense counsel stated that she objected to the testimony “based on the fact that the purpose of an expert is to educate the jury on matters beyond their understanding.” She noted that the allegations against Defendant are that he had 58 individual packages of crack cocaine that he discarded before he was apprehended and that he had $240 in his pocket. Counsel stated that there were no cell phone calls with jargon beyond the jury‘s understanding or any evidence of “confusing get-togethers in order to distribute the drugs.” Defense counsel stated that any expert testimony would have no value and would contain irrelevant information. She noted that there was also the potential that the testimony would prejudice Defendant and confuse the issues.
In response, the State informed the court that it intended to qualify Sgt. Garnier as an expert in illicit narcotics packaging,
Defense counsel then quoted from State v. Wheeler, 446 So.2d 1215 (La. 1984). She asserted that the matter is not beyond the jury‘s understanding. Counsel stated that if a person is trying to insinuate that a person stole a car, it is not necessary to know how much the car is worth. Counsel argued that the jury is capable of understanding if Defendant had drugs in his possession and if he intended to distribute them.
The trial judge compared this to the display of track marks on arms in “California versus Schmerber.” The judge stated that a jury knows what a track mark is, but they do not know the age of it. The judge stated that it was similar to this issue in that there will be a witness who will testify to knowledge that the jury does not have. The judge provided that “you would like to think that they know. They know what crack cocaine is, they know packaging, but they don‘t know the purpose of the dosage, they don‘t know the purpose of the wrap, they don‘t know the amount of money, what it costs.” The judge stated that this information will assist the trier of fact and that the expert “is not going into the ultimate purview of their jobs.” The judge asserted that the expert testimony had probative value that outweighed any prejudicial effect. As such, the judge denied the motion in limine and noted defense counsel‘s objection. At trial, after the sergeant testified as to his experience and qualifications, defense counsel stated, “I‘m not going to object to his being qualified as an expert. I just want to reiterate my objection to his testimony, period, as we argued before, just for record purposes.”
Here, Defendant filed a written motion in limine to exclude Sgt. Garnier‘s expert testimony. There, he argued in part that the potential testimony ran the risk of unintentionally rendering an opinion that Defendant was guilty of distribution, wherein the risk of prejudice and hence of reversible error consequently increases. On appeal, Defendant also argues the sergeant improperly testified as to his opinion that Defendant was involved in the distribution or attempted distribution of cocaine, which Defendant argues is tantamount to an opinion that he was guilty of the crime charged. Defendant also alleges in both the motion in limine and his appellate brief that the testimony did not aid the jury in its fact-finding process. When the trial judge denied the written motion, he
The purpose of an expert witness in a criminal case is to provide the jurors with a basis of knowledge and background information on a subject. State v. Myles, 04-434 (La. App. 5 Cir. 10/12/04); 887 So.2d 118, 125. The jury as the ultimate fact-finder should relate background knowledge received from the expert to the facts established by the evidence at trial and make a determination of the defendant‘s guilt. State v. Dobbins, 05-342 (La. App. 5 Cir. 12/27/05); 920 So.2d 278, 286.
The admissibility of expert testimony is governed by
To establish Defendant‘s guilt in the instant case, the State was required to prove beyond a reasonable doubt that Defendant knowingly and intentionally possessed the crack cocaine with the specific intent to distribute it. One method by which the State commonly seeks to prove intent to distribute is by producing expert testimony or other evidence to show that the amount of the drug found in the defendant‘s possession is inconsistent with personal use. State v. Johnson, 10-209 (La. App. 5 Cir. 10/12/10); 52 So.3d 110, 121, writ denied, 10-2546 (La. 4/1/11); 60 So.3d 1248. This Court has held that a police officer does not need scientific credentials or a scientific method in order to testify as an expert on the difference between sellers and users in narcotics cases. State v. White, 14-631 (La. App. 5 Cir. 12/23/14); 168 So.3d 664, 667.
In State v. Hollins, 99-278 (La. App. 5 Cir. 8/31/99); 742 So.2d 671, writ denied, 99-2853 (La. 1/5/01); 778 So.2d 587, the defendant was convicted of possession of cocaine with intent to distribute and argued on appeal that the trial court improperly allowed expert opinion testimony regarding the ultimate issue of guilt in contravention of
In the instant case, in order to meet its burden of proof, the State offered
We find that the trial court did not err in finding Sgt. Garnier‘s expert testimony permissible. We note that much of his testimony went to proving that the amount of cocaine found in Defendant‘s possession was inconsistent with personal use, which is a permissible use of expert testimony. Additionally, we find that the testimony provided the jury with a basis of knowledge and background information. As such, we conclude that the court did not err in denying the motion in limine, or in permitting the expert testimony.
Errors Patent Discussion
The record was reviewed for errors patent, according to
DECREE
For the foregoing reasons, Defendant‘s conviction and sentence are affirmed.
AFFIRMED
STATE OF LOUISIANA VERSUS DARREN K. LLOYD
NO. 21-KA-645
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
WICKER, J., CONCURS WITH REASONS
I agree with the majority opinion affirming defendant‘s conviction for possession with intent to distribute cocaine in violation of
I write separately however to point out that defendant‘s 58-year sentence, agreed upon by the state, results in defendant‘s release at the approximate age of 82. This effective life sentence imposes an undue burden on the taxpayers of the state who must feed, house, and clothe this defendant for life. Under Louisiana law, prison authorities owe a duty to provide inmates with reasonable medical care. Thomas v. Louisiana Dep‘t of Pub. Safety & Corr., 20-0833 (La. App. 1 Cir. 2/22/21), writ denied, 21-00456 (La. 6/8/21), 317 So.3d 327; Robinson v. Stalder, 98-0558 (La. App. 1 Cir. 4/1/99), 734 So.2d 810, 812; Hollyfield v. Hurst, 796 Fed. Appx. 817, 821 (5th Cir. 2019). As this defendant ages, these costs will only increase due to the need for geriatric health treatments. See State v. Bruce, 11-991 (La. App. 5 Cir. 10/30/12), 102 So.3d 1029, 1036, writ denied, 12-2568 (La. 4/26/13), 112 So.3d 839; State v. Hayes, 97-1526 (La. App. 1 Cir. 6/25/99), 739 So.2d 301, 303, writ denied, 99-2136 (La. 6/16/00), 764 So.2d 955, and State v. Burns, 97-1553 (La. App. 4 Cir. 11/10/98), 723 So.2d 1013, 1020, writ denied, 98-3054 (La. 4/1/99), 741 So.2d 1282.
Therefore, while I concur in outcome in this case, I write separately to address a concern that the continued policy of state negotiations for terms of imprisonment that extend beyond the age at which the rate of recidivism drastically decreases, is an irresponsible use of state public funds as a matter of public policy.
CURTIS B. PURSELL
CLERK OF COURT
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 AUGUST 24, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-KA-645
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) KEVIN V. BOSHEA (APPELLANT)
LIEU T. VO CLARK (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR. (APPELLEE)
DISTRICT ATTORNEY
JENNIFER C. VOSS (APPELLEE)
JOSHUA K. VANDERHOOFT (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053