State v. CalwayState v. Calway
STATEMENT OF THE CASE
On December 23, 1997, the defendant, Bruce O. Calway, was charged by bill of information with possession with the intent to distribute cocaine in violation of
STATEMENT OF THE FACTS
On June 24, 1997, New Orleans Police Detectives Gilliard and Rousseve were assigned to the Fifth District as narcotics detectives. They were en route to the district station with a narcotics violator when they noticed the defendant and another subject, later identified as Leo Howard, engaged in an apparent narcotics transaction in the twenty one hundred block of Mazant Street. Detective Gilliard was transporting the narcotics violator in his vehicle, and Detective Rousseve was following behind in his vehicle. The defendant and the other subject were observed by the officers standing in front of a residence at 2109 Mazant Street. Detective Gilliard testified that he and his partner had made numerous arrests at that location. The officer stated that he saw the
Officer Theresa Lamb, a criminalist with the New Orleans Police Department Crime Lab, testified that the rocks of compressed white powder taken from the defendant tested positive for cocaine.
The defendant, Bruce Calway, denied possessing any cocaine on June 24, 1997. He testified that he and Leo Howard were working on the defendant‘s vehicle. The defendant was on his way to his mother‘s house to get the tools he needed to work on the car when Officer Gilliard jumped him in the backyard of 2109 Mazant Street. The defendant testified that he heard someone say “shoot him” immediately before Officer Gilliard apprehended him. The defendant acknowledged that he had previously used crack cocaine in the early 1990‘s but stated he no longer used cocaine. The defendant admitted convictions for theft in 1976 and 1990, burglary in 1977, possession of narcotics paraphernalia in 1991, possession of cocaine in 1993 and possession of marijuana in 1997.
Errors Patent
A review of the record reveals an error in the defendant‘s sentencing. After adjudicating the defendant a second felony offender, the trial court sentenced the defendant to serve sixty years at hard labor without benefit of probation, parole or suspension of sentence. However, while
No other errors were found.
Assignments of Error Nos. 1 and 2
In these two assignments, the defendant complains that the evidence was not sufficient to support his conviction for possession with the intent to distribute cocaine. The defendant argues that the trial court should not have allowed Detective Gilliard testify as to the seizure of the cocaine since it was Detective Rousseve who recovered the cocaine at the scene and from the defendant. The defendant also contends that the trial court should not have allowed the State to introduce the crack cocaine into evidence based only on the testimony
When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).
In addition, when circumstantial evidence forms the basis of the 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. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded.
At trial, Detective Gilliard testified that he observed the defendant and Howard engaged in a narcotics transaction. The officer stated that he saw the defendant extend his right hand to Howard and Howard look at the objects in the defendant‘s hand. Howard then removed one of the objects from the defendant‘s hand, look up, and observe the police officers. Howard then spoke to the defendant, and both men turned in the officers’ direction. The defendant and Howard looked panicstricken and discarded the white objects they had in their hands. Detective Gilliard pursued the defendant who attempted to run away when the officers approached. Meanwhile, Officer Rousseve detained Howard. When Detective Gilliard returned to the scene, both subjects were secured in Detective Rousseau‘s vehicle. The officers then went to the area where they had seen the subjects drop the alleged contraband. Detective Rousseau recovered four pieces of white compressed powder which the officers believed to be crack cocaine. The defendant and Howard were both placed under arrest. Officer Rousseve then conducted a search of the defendant incident to his arrest, at which time the officer found a plastic bag containing nineteen pieces of crack cocaine in the defendant‘s pants pocket. Each rock was individually wrapped in clear plastic. The officer also retrieved three small blue Ziploc bags of marijuana.
Officer Gilliard was present when Officer Rousseve retrieved the four rocks of crack cocaine from the ground. He observed Officer Rousseve pick up the cocaine from the ground. The officer also observed Officer Rousseve search the defendant after his arrest and saw Officer Rousseve take the bag of cocaine out of the defendant‘s pants pocket. Officer Gilliard testified as to his own personal knowledge and observations. Such testimony is admissible and sufficient to sustain the defendant‘s conviction for possession with intent to distribute cocaine.
These assignments are without merit.
Assignments of Error Nos. 3 and 4
The defendant argues that the trial court imposed an unconstitutionally excessive sentence. He also suggests that the trial court failed to comply with
A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Caston, 477 So.2d 868 (La. App. 4th Cir.1985). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in
If adequate compliance with
In the present case, the defendant was convicted of possession with the intent to distribute cocaine. After adjudicating the defendant to be a second felony offender, the trial court sentenced the defendant to serve sixty years at hard labor, the maximum sentence under
Although Mr. Calway was only alleged to be a second offender in this multiple bill of information and while he denied several other convictions that he had, when he took the stand on cross examination he had no choice but to admit that he had numerous, numerous other convictions. In fact, the state‘s evidence in this case was limited to S-1, white rocks, S-2, a crime lab report and the rest of the evidence in this case S-3, 4,5,6,7 and 8 were all certified copies of Mr. Calway‘s prior convictions. 1,2,3,4,5,6. Six prior convictions. I find that Mr. Calway has a significant criminal history. I find that he is a dangerous encourageable (sic) criminal. I find that although probation is not an option in this case, that if it were that the defendant would pose an undue risk during any period of suspended sentence or probation, that he would commit more crimes. I find that he is in need of correctional treatment in a custodial environment that can best be provided by the Louisiana State Penitentiary. Any lesser sentence in this case would debrocate (sic) from the serious nature of the defendant‘s crime, that is, pushing drugs.
I further find that due to his criminal history that any chance for rehabilitation in this case would be slight. I find that this individual poses an unusual risk to the safety of the public, he has a significant criminal history. Therefore, it‘s sentence of the court that you serve 60 years in the custody of Louisiana Department of Corrections at hard labor with credit for time served to be served consecutively with any other sentence that you are serving including but not limited to any parole time that you might be backing up. This sentence is to be served without the benefit of probation, parole or suspension of sentence.
The trial court adequately complied with the requirements of
These assignments are without merit.
Accordingly, the defendant‘s conviction is affirmed. The defendant‘s sentence is amended to provide that parole is prohibited for the first five years of the sentence, and as amended, affirmed.
CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED.