State v. CarterState v. Carter
Richard P. Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Michael Powell, Assistant District Attorney, for Appellee.
FACTS
On June 8, 1996, Shreveport police officers Russell Sarpy and John Gallion, agents with the Drug Enforcement Administration Task Force, were working undercover with the Street-Level Interdiction Unit. The officers were patrolling the 900 block of Picket Street in Shreveport, Louisiana, when they encountered the defendant, Leonard Carter, sitting on the porch at a residence located at 926 Picket Street. From this point forward, the testimony of the officers and the defendant offer totally different perspectives as to the facts of this case.
According to the officers, the defendant flagged them down as they approached the residence located at 926 Picket Street. The officers informed the defendant that they were interested in buying crack cocaine. The defendant said that he did not have any crack cocaine, and instead, offered to sell the officers marijuana cigarettes for two dollars each. After the officers agreed to buy the marijuana cigarettes, the defendant went into the house located at 926 Picket Street and returned with seven marijuana cigarettes. The defendant gave the officers six of the cigarettes, and kept one for himself. The officers gave the defendant fourteen dollars for the cigarettes.
Subsequently, the defendant was arrested by the surveillance team that was present at the scene. A field test confirmed that the cigarettes contained marijuana. Officer Brian Wheeler, a member of the surveillance team, testified that he discovered one marijuana cigarette in defendant‘s possession at the time defendant was apprehended.
Defendant testified that the officers stopped their vehicle in front of the residence located at 926 Picket Street and motioned for someone to come to the vehicle. The defendant approached the vehicle and the driver of the vehicle asked the defendant if he would sell him some drugs. The defendant informed the officer that he did not sell drugs. The driver gave the defendant fourteen dollars and asked the defendant to solicit drugs from someone who did sell drugs. The defendant took the money and went inside the residence located at 926 Picket Street where he remained for approximately fifteen minutes, returning outside only after he thought the officers had driven away. After returning outside, the officers again asked defendant about selling them some drugs. The defendant had seven marijuana cigarettes in his possession for his personal use. He replied that he did not have any drugs to sell, but he was waiting for someone who might
The defendant was charged by bill of information with distribution of marijuana. He was convicted as charged and sentenced to serve twenty years at hard labor. The defendant‘s timely filed motion to reconsider sentence was denied. He also unsuccessfully filed motions for post verdict judgment of acquittal and a new trial. The defendant appeals his conviction and sentence.
DISCUSSION
Sufficiency of the Evidence
The defendant contends that the evidence presented at trial was insufficient to support his conviction of distribution of marijuana. He argues that the state failed to prove that he delivered marijuana cigarettes to the undercover officers.
In order to convict the defendant of distribution of marijuana,
In the present case, Officers Russell Sarpy and John Gallion testified at trial that they purchased marijuana cigarettes from the defendant for fourteen dollars. The money used to purchase the drugs had been photocopied prior to the purchase. Officer Sarpy identified a state‘s exhibit as a photocopy of the money used to purchase marijuana from the defendant and testified that the money found on the defendant at the time of his arrest matched the photocopied money.
The officers testified that the defendant kept one of the seven cigarettes that they purchased from him as a gratuity. Officer Brian Wheeler reported that he recovered one marijuana cigarette from the defendant when he was apprehended.
According to the defendant‘s account of the events, he had seven marijuana cigarettes in his possession on the date of his arrest but they were for his own personal use and not for sale. Defendant admits that he took fourteen dollars from the officers. However, the defendant testified that his intention was to “rip off” the officers, i.e., to keep the money without delivering any drugs. The defendant contends that there is no evidence that he distributed or intended to distribute marijuana.
Whenever there is conflicting testimony as to factual matters, the determination of the credibility of the witnesses is within the sound discretion of the trier of fact. This factual determination will not be disturbed on review unless clearly contrary to the evidence. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993). The testimony and the evidence presented at trial were sufficient to prove that the defendant knowingly or intentionally distributed marijuana to the undercover officers. Apparently, the jury rejected the defendant‘s explanation of the reason he approached the officers’ vehicle and how he came into possession of seven marijuana cigarettes, the exact number of cigarettes that the officers testified they had asked to buy from him. The record supports the jury‘s conclusion of the defendant‘s guilt. The defendant‘s argument is without merit.
The defendant argues that the trial court erred in denying his motion for new trial. Defendant urges insufficiency of the evidence as the ground for his motion for new trial.
We find no error in the trial court‘s denial of the motion for new trial. The state‘s case was proven beyond a reasonable doubt. The denial of the motion for new trial was proper. This assignment lacks merit.
Excessive Sentence
The defendant argues that the sentence imposed by the trial court is excessive. He contends that the trial court failed to comply with
An appellate court uses a two-prong test to evaluate a sentence for excessiveness. First, this court must examine whether the record demonstrates adequate consideration of the criteria set forth in
In the second prong of the test, the court must determine if the sentence is constitutionally excessive. Although a sentence is within the statutory limits, it may still violate a defendant‘s constitutional right against excessive punishment. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bonanno, 384 So.2d 355 (La.1980). The determination of the severity of a sentence is conditioned on the circumstances of the case and the background of the defendant. A sentence violates
In the present case, the trial court sentenced defendant to serve twenty years at hard labor for distributing six marijuana cigarettes. This sentence is within the statutory sentencing range for the offense.
In sentencing the defendant, the trial court noted its consideration of defendant‘s criminal history and the fact that the district attorney had threatened to bill defendant as
The trial court failed to order and review a pre-sentence investigation report (PSI) prior to sentencing the defendant. Consequently, the judge did not have the benefit of defendant‘s personal history, prior criminal history, scholastic history, prospects of rehabilitation or any other pertinent information. The record indicates that the trial court based its imposition of sentence solely upon the fact that the district attorney had threatened to bill defendant as a habitual offender, thus increasing his exposure to a sixty-year maximum sentence.
Because the record does not demonstrate that the sentencing court adequately considered the factors listed in
Error Patent
Defendant‘s final assignment was a request for this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Stamper, 615 So.2d 1359 (La.App. 2d Cir.1993), modified on other grounds, 624 So.2d 1208 (La. 1993). We have examined the record for error patent,
CONCLUSION
For the foregoing reasons, the defendant‘s conviction is affirmed. The sentence is vacated and the case is remanded to the district court for resentencing in accordance with
CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.