STATE OF LOUISIANA VERSUS SHAWN A. CLARK
NO. 19-KA-522
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
June 24, 2020
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-2759, DIVISION “E” HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
JUDGMENT OF CONVICTION MODIFIED; SENTENCE VACATED; MATTER REMANDED FOR RESENTENCING
JGG
SMC
FHW
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Rachel L. Africk
Lynn Schiffman
COUNSEL FOR DEFENDANT/APPELLANT, SHAWN A. CLARK
Cynthia K. Meyer
Defendant/appellant, Shawn A. Clark, appeals his conviction and sentence for possession of marijuana, second offense, in violation of
For the following reasons, we find no merit to defendant‘s assignment of error. However, upon our errors patent review, we find that the State failed to present sufficient evidence to prove that defendant committed possession of marijuana, second offense. Consequently, we modify defendant‘s conviction to possession of marijuana, first offense, vacate defendant‘s sentence, and remand the matter to the trial court for resentencing.
PROCEDURAL HISTORY
On May 14, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Shawn A. Clark, with possession of marijuana, second offense, in violation of
Various pretrial motions were filed. A two-day bench trial began on June 24, 2019. On June 25, 2019, the defense made an oral request to recuse the trial court judge and/or for a mistrial, which the trial court denied. Trial concluded the same day with the judge finding defendant guilty as charged.2 On June 27, 2019, defendant was sentenced in this case to fifteen
On July 26, 2019, defendant filed a motion for an appeal regarding his verdict rendered on June 25, 2019, the sentences imposed on June 27, 2019, and his habitual offender sentence imposed on July 15, 2019. On July 30, 2019, the trial court granted the appeal.
Defendant now appeals, challenging the trial court‘s denial of his motion to recuse.
JURISDICTIONAL NOTE
This Court‘s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287 (citing
In the present case, defendant was charged with possession of marijuana, second offense, in violation of
However, this Court has previously, in similar cases, reviewed misdemeanor convictions and sentences on appeal when the companion misdemeanor and felony convictions are so intertwined that the interest of justice and judicial economy dictated that the matters be considered together. See State v. Blackwell, 18-118 (La. App. 5 Cir. 12/27/18), 263 So.3d 1234, 1239; State v. Carroll, 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486, 488; State v. Jones, 12-640, 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 440-43; State v. Christophe, 12-82, 12-83 (La. App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied, 12-2432 (La. 4/19/13), 111 So.3d 1029.
In the present case, defendant‘s misdemeanor and felony offenses arose out of the same facts, were ultimately charged in separate bills of information, and were tried simultaneously by a jury trial and a bench trial. Upon review, because the facts and arguments presented on appeal in defendant‘s misdemeanor case are the same as the facts and arguments presented on appeal in one of the assignments of error in defendant‘s felony case, we find that defendant‘s misdemeanor and felony convictions are so intertwined that the interest of justice and judicial economy dictate that we consider these matters together on appeal. Blackwell, supra. We, however, render separate opinions on defendant‘s misdemeanor conviction and sentence and his felony conviction and sentence.
Detectives Blaine Howard and Daniel Lassus, then with the Project STAR division of the Jefferson Parish Sheriff‘s Office, were investigating information received from a confidential informant regarding narcotics distribution by Tony Ford.4 They surveilled Mr. Ford and his residence in an unmarked police car on several different dates. Until January 20, 2018, the detectives saw nothing significant.
Both detectives testified that on January 20, 2018, shortly after arriving at Mr. Ford‘s home, they observed a blue Lexus vehicle arrive and park in front of Mr. Ford‘s home around 7:00 p.m. The driver of the Lexus was later identified as defendant Shawn Clark. Defendant parked a short distance from the detectives on the opposite side of the street, facing their vehicle. Defendant remained in his vehicle; Mr. Ford exited his residence and entered the front passenger door of the vehicle. Both detectives testified that Mr. Ford was in the vehicle for less than one minute and that a visit of this short duration was consistent with a drug transaction.
The detectives testified that Mr. Ford re-entered his home and the blue Lexus drove away. The detectives followed the vehicle.5 While following the vehicle, the detectives observed that defendant failed to signal several lane changes, the license plate illuminator bulb was out, and there was a cover over the license plate. They conducted a traffic stop of defendant by activating the lights and siren on their vehicle.
Detective Howard testified that after exiting their vehicle, both detectives approached defendant‘s vehicle from the rear with illuminated flashlights in their hands. Detective Howard stated that he observed defendant move towards the center console of the vehicle and throw a white pill bottle on the back passenger floorboard. Detective Lassus similarly testified that he saw defendant‘s hands moving around the center console and then saw him drop a white item behind the rear passenger seat. Detectives Howard and Lassus testified that Detective Lassus approached the open driver‘s window of defendant‘s vehicle and told Detective Howard that he smelled marijuana. Detective Lassus ordered defendant out of the vehicle; defendant complied. Defendant was Mirandized6 and placed in handcuffs.
Detective Howard testified that he asked defendant for his driver‘s license, which was suspended, and asked to search defendant‘s vehicle, to which defendant consented. Detective Lassus searched the vehicle and located a white pill bottle on the rear passenger floorboard containing marijuana and forty-six multi-colored pills. After locating the pill bottle and its contents, defendant was placed under arrest for possession with intent to distribute based on the quantity of the pills.7 While searching defendant, Detective Howard discovered one hundred twenty-two dollars on defendant‘s person.
Defendant testified at trial that the blue Lexus belonged to his girlfriend and that he was driving it on the day in question to take the car to get the license plate light and window mechanics fixed. On his way to the mechanic, defendant passed Mr. Ford‘s house and saw him arguing outside with his girlfriend. Defendant testified that he stopped to prevent Mr. Ford from getting into trouble. Defendant admitted that Mr. Ford got into his vehicle. He testified that they had a short conversation during which defendant warned Mr. Ford to stop fighting with his girlfriend to avoid getting himself into trouble, and then Mr. Ford exited the vehicle.
Defendant testified that he left Mr. Ford‘s house and was pulled over two to three miles later.8 Defendant stated that he made no movements towards the center console or the glove box. Defendant denied that his window was down, and said that he had no knowledge that the pill bottle was in the car. Defendant testified that he was not read his Miranda rights and did not consent to a search of the vehicle. Defendant also testified as to his prior convictions, and acknowledged that he was on parole due to an earlier conviction at the time of his arrest.9
ASSIGNMENT OF ERROR
Motion to recuse
Herein, defendant argues that the trial judge erred in denying his motion to recuse when the record indicates that the trial judge prosecuted defendant in one of the predicate offenses used to adjudicate defendant as a third felony offender.
Defendant argues that the trial judge was made aware that he prosecuted defendant on a prior offense before trial started. Defendant asserts that defense counsel informed the trial judge that if defendant was convicted, the State intended to use that prior conviction as a predicate offense when filing a habitual offender bill of information. Defendant further asserts that he requested that the judge recuse himself at that point, but that the request was denied.
On appeal, defendant argues that contrary to the trial judge‘s assertion, the judge could not be fair and impartial. Defendant asserts that the State and the judge attempted to pressure defendant into pleading guilty. Defendant contends that the judge‘s repeated reference to the State‘s plea offer gives the appearance that the judge thought defendant was guilty before trial. Defendant argues that the trial judge ordered the bailiff to remove Amos St. Cyr, whom he wished to have assist his defense counsel, from the courtroom. Defendant also alleges that the trial judge treated him harshly regarding his failure to return to court after a recess during a previous motions hearing.10 Defendant
The State asserts that the trial judge acted appropriately in his denial of the motion to recuse. The State argues that
The State asserts that the situation at hand does not qualify as a reason for recusal under the exhaustive list contained in
According to the June 25, 2019 minute entry and transcript, defendant orally requested that the trial judge recuse himself and/or grant a mistrial. Defendant stated that during investigations relating to a possible habitual bill proceeding, defendant discovered that the trial judge prosecuted him on one of his predicate offenses from 2007. Defendant acknowledged that there was no indication that he and the trial judge recognized each other. Defendant argued that in his experience, trial judges have recused themselves upon discovering that they are presiding over someone they previously prosecuted. The trial judge reiterated that he and defendant did not recognize each other and stated that he could be fair and impartial. The trial judge denied the requests, and defendant objected. No written motion to recuse was filed.
A party desiring to recuse a trial judge shall file a written motion assigning the ground for recusal. State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 537, writ denied, 09-248 (La. 10/30/09), 21 So.3d 272; State v. Page, 02-689 (La. App. 5 Cir. 1/28/03), 837 So.2d 165, 181, writ denied, 03-951 (La. 11/7/03), 857 So.2d 517
Because defendant failed to file a written motion assigning the ground for recusal, there is nothing for this Court to review. Accordingly, this assignment of error is without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to
Generally, an errors patent review is not conducted on misdemeanor convictions. Nevertheless, this Court has in the past considered a misdemeanor appeal as an application for supervisory review of the case and has conducted an errors patent review. See Blackwell, 263 So.3d at 1240.12
Upon review, though it was not affirmatively raised as an assignment of error by defendant, we find that the State failed to properly prove by sufficient evidence that defendant had a prior conviction of possession of marijuana.
The Louisiana Supreme Court and this Court have recognized insufficiency of the evidence to support a conviction where the defendant fails to raise the issue on appeal. State v. Raymo, 419 So.2d 858, 861 (La. 1982); State v. Jackson, 99-1256 (La. App. 5 Cir. 7/25/00), 762 So.2d 848, 852, writ denied, 00-2528 (La. 10/5/01), 798 So.2d 960. The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Brown, 03-581 (La. App. 5 Cir. 11/12/03), 861 So.2d 644, 650-51, writs denied, 03-3407 (La. 4/2/04), 869 So.2d 875, and 04-49 (La. 4/2/04), 869 So.2d 877. In order to support a conviction of possession of marijuana, second offense, the State must prove that the defendant was in possession of marijuana, that the defendant knowingly possessed it, and that he had a prior conviction for possession of marijuana. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 241; State v. Proctor, 04-1114 (La. App. 5 Cir. 3/29/05), 901 So.2d 477, 482.
Louisiana Courts have reviewed various methods of establishing the defendant‘s prior conviction. In State v. Lathers, 03-941 (La. App. 5 Cir. 2/23/04), 868 So.2d 881, 883, the State and the defense stipulated to the defendant‘s prior convictions for possession of marijuana and admitted certified copies of the prior convictions as evidence. Further, on appeal in Lathers, the defendant did not dispute that he had two prior convictions for possession of marijuana and pointed out that he had stipulated to those prior convictions and admitted to them during his testimony. In State v. Van Winkle, 07-1303 (La. App. 3 Cir. 5/7/08), 2008 WL 1961153, the defendant testified at her 2006 sentencing hearing that her first conviction for possession of marijuana was in 1999. While the defendant in State v. Daniels, 15-147 (La. App. 3 Cir. 5/8/15), 215 So.3d 759, 760, on reh‘g (11/12/15), entered into a plea agreement, the State admitted into evidence an excerpt from the minutes showing the defendant‘s prior plea to possession of marijuana, first offense.13 In State v. Young, 39,546 (La. App. 2 Cir. 3/2/05), 895 So.2d 753, 757, the State called a criminal minute clerk to the stand to identify a certified copy of the minutes of the prior conviction, which showed a plea of guilty to possession of marijuana on September 28, 1998. The clerk testified that there were fingerprint impressions on the back of the bill of information. The State then called an officer qualified and accepted by the court as an expert in fingerprint identification, who testified that the prints on the back of the bill of information were identical to an inked impression of prints taken from the defendant in the
courtroom. Therefore, the court found that the State sufficiently established that the defendant was the same person who had previously pled guilty to possession of marijuana on September 28, 1998.
In State v. Turner, 05-60 (La. App. 5 Cir. 5/31/05), 904 So.2d 825, 829, this Court reviewed the record for errors patent and concluded that the finding that this was a third offense of possession of marijuana for the defendant was not supported by the record. The State introduced two minute entries, dated October 19, 1998 and January 23, 2002, showing a “Latour Turner,” born July 10, 1978, pled guilty to possession of marijuana, and a third minute entry, also dated January 23, 2002, showing that the defendant pled guilty to second offense possession of marijuana. The State called the defendant‘s parole officer to testify; he stated that based on his records, he believed the defendant had three convictions for possession of marijuana. This Court found a lack of direct evidence presented to the jury to link the defendant with the defendant in the records presented by the State and pointed out that the parole officer identified the defendant as the individual he was supervising for a prior possession of marijuana conviction. This Court concluded that the evidence presented at trial was sufficient
In the present case, the State attempted to establish defendant‘s prior convictions through defendant‘s testimony alone. The State did not enter minute entries as exhibits, nor were defendant‘s fingerprints compared to any others. The record does not reflect any stipulation that defendant had a prior conviction for possession of marijuana. Instead, defendant‘s testimony was the sole evidence of defendant‘s prior conviction. Defendant also testified as to his other prior convictions and his parole status at the time of his arrest. When asked by his attorney if he had prior misdemeanor convictions, defendant confirmed that he did. The defense attorney then asked if he “ever had a marijuana,” and defendant replied that he did. Defendant stated he thought he only had the one and that he did not remember serving any time on it. However, when the State asked defendant specifically about his 2003 conviction for possession of marijuana, defendant stated that he did not recall being convicted or pleading guilty in that case. He was then asked if he did not have a conviction for possession of marijuana, to which defendant stated that he did not know of such a conviction and then stated that he did have a “marijuana conviction.” When asked again, defendant testified that he “may” have such a conviction.
Upon review, we find that the State failed to prove, by defendant‘s equivocal testimony alone, each element of the offense beyond a reasonable doubt. If a rational trier of fact, viewing evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the offense‘s essential elements have been proved beyond a reasonable doubt, the appropriate relief in this case is for the defendant to receive a reduction of the conviction to a judgment of guilty of a lesser and included offense. State v. Hearold, 603 So.2d 731, 734 n. 1 (La. 1992) (citing
If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
Considering the above, we find that the evidence presented at trial was insufficient to prove that defendant is guilty of possession of marijuana, second offense, but was sufficient to prove that defendant is guilty of possession of marijuana, first offense, a violation of
CONCLUSION
For the foregoing reasons, defendant‘s conviction is modified from possession of marijuana, second offense, to possession of marijuana, first offense, defendant‘s sentence is vacated, and the matter is remanded to the trial court for resentencing.14
JUDE G. GRAVOIS
JUDGE
FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fifthcircuit.org
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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 JUNE 24, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL CLERK OF COURT
19-KA-522
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE)
THOMAS J. BUTLER (APPELLEE)
CYNTHIA K. MEYER (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR. (APPELLEE)
RACHEL L. AFRICK (APPELLEE)
LYNN SCHIFFMAN (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053