State v. DavisState v. Davis
On June 7, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, John Davis, with possession of cocaine, in violation of
On February 9, 2001, defendant filed a Motion for New Trial, which was denied. After the defendant waived the statutory delays, the trial judge sentenced him to five years at hard labor. Defendant also filed a Motion to Reconsider Sentence that same day, which the trial judge denied. Also that day, the State filed a habitual offender bill of information, alleging defendant to be a third felony offender. Defendant
On April 20, 2001, defendant filed a motiоn to quash the habitual offender bill of information, which the trial judge heard and denied on June 1, 2001. That same day, the trial court held the habitual offender hearing and found that defendant is a third felony offender. The trial judge then vacated defendant‘s original sentence and imposed an enhanced sentence of 20 years at hard labor. Because the trial judge deviated from the life sentence, which is the minimum mandatory sentence, required by the Habitual Offender Law, the State objected to the sentence as illegally lenient.1 Defendant made an oral motion to rеconsider sentence, which the court denied. Defendant also filed a Motion for Appeal on that day, which the trial judge granted on June 1, 2001.
FACTS
Deputy Lance Williams of the Jefferson Parish Sheriff‘s Office (“JPSO“) testified that, at 1:59 a.m. on May 28, 2000, he responded to a call at Club 2000, a nightclub located on Brown Avenue near the Westbank Expressway in Harvey. Williams was accompanied by Deputy-Trainee Cory Newby. Deputy Michael Aicklen also responded to the scene.
Deputy Williams testified that defendant appeared nervous and agitated when he saw the officers enter. The deputies escorted defendant out of the bar. Deputy Williams attempted, for his safety, to patdown the defendant after they exited the club. Defendant pushed Deputy Williams and attempted to flee. In response, Deputy Williams placed defendant in a “compliance hold”2 and escorted defendant to his patrol car. Deputy Williams placed defendant against the car, handcuffed him, and again attempted a pat-down of defendant.
During the course of the pat-down, defendant kicked Williams and knocked him to the ground by striking him in the chest with his knee. Still handcuffed, defendant fled on foot across the Westbank Expressway. Deputies Williams, Newby and Aicklen pursued him. Williams tackled defendant, knocking him to the ground, and subduing him. Deputy-Trainee Newby escorted defendant to the police car.
Deputy Newby testified that he searched defendant and recovered six small, off-white rocks, wrapped in plastic bags, from his left front pants pocket and a bag of green, leafy, vegetable-like material from his other front pocket. Newby gave the items to Deputy Williams. Daniel Waguespack, an expert in the analysis and identification of narcotics, testified that he tested two of the six white rocks, and the result was positive for cocaine. After hearing the evidence, the six-person jury found the defendant guilty as charged of possession of cocaine.
On appeal, defendant argues, in his first assignment of error, that the evidence should have been suppressed. He specifically complains that the officers lacked reasonable suspicion to stop him and, thus, the cocaine, which was found after the stop, should not have been admitted at trial. In its brief, the Stаte implies that defendant is not entitled to challenge the trial court‘s ruling because his motion to suppress evidence was not in writing and did not allege specific grounds for suppression.
The
Reasonable suspicion for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual‘s right to be free from governmental interferencе.7 Absent reasonable suspicion, an investigatory stop is illegal, and the evidence seized as a result is suppressible.
The determination of reasonable grounds for an investigatory stop, or probable cause for arrest, does not rest on the officer‘s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action.8 In considering those circumstances, a reviewing court should give deference to the inferences and deductions of а trained police officer “that might well elude an untrained person.”9 An officer‘s experience, his knowledge of recent criminal patterns, and his knowledge of an area‘s frequent incidence of crime, are factors that may support reasonable suspicion for an investigatory stop.10 In determining whether the trial court‘s ruling on a defendant‘s motion to suppress is correct, the appellate
In this case, the testimony at the suppressiоn hearing provides more information regarding the events leading up to defendant‘s arrest than the evidence at trial does. At the suppression hearing, Deputy Lance Williams testified that, in the early morning hours of May 28, 2000, he and Cory Newby, a JPSO trainee, received a dispatch that the owner of Club 2000, a nightclub located in a high-crime area of Harvey, needed assistance with an unruly patron. The club owner, Bobby Wilkerson, reported that a patron, who had previously been banned from the club, was in the club refusing to leave.
Williams testified that, when he and Newby arrived at the nightсlub, Wilkerson met them at the door, pointed to defendant, and told the officers that he wanted defendant removed from the premises. When Wilkerson pointed out the defendant to the deputies, he was just “hanging around.” As soon as defendant saw the officers, he put down his drink and began to back away from them. Defendant‘s demeanor changed, and he began to look wildly around the room. To Deputy Williams, defendant was looking for an escape route.
Deputy Williams then approached defendant, told defendant that the owner wanted him to leave, and asked defendant to leave the premises. Although the noise level in the club was high, defendant appeared to understand him. The officers escorted defendant to the door, one walking on either side of him. Williams testified that he didn‘t have any physical contact with defendant at that time. The officers were at the bar investigating a call from the owner regarding a patron who was apparently disturbing the peace and/or trespassing. Williams testified that defendant was free to go anywhere he wished, as long as he left the nightclub.
Williams stated that defendant appeared nervous and excited. As the officers escorted defendant to the door, defendant attempted to evade them by walking out ahead of them. Based on defendant‘s demeanor and his attempts to get away from the officers, Williams felt as if there was something amiss. He testified, “There was a reason that he was so crazy to get away from me. I didn‘t know if maybe he was carrying a weapon.” Williams stopped defendant from leaving the area. He asked whether defendant had identification, and defendant replied that he did not. The officer asked defendant to put his hands against a wall so that he could perform a pat-down search. Defendant refused to comply, so Williams pushed defendant against the wall.
At the suppression hearing, the prosecutor asked Williams whether, at that time, he had “a reasonable suspicion to believe that perhaps a crime was about to be committed or had been committed.” Williams responded, “Something was up, yes, ma‘am.” On cross-examination, the deputy testified that, while he hadn‘t seen a crime committed at that point, he was suspicious of defendant because he was trying so hard to get away from the officers. He strongly believed defendant wanted to leave because he was either carrying a weapon or drugs or he was wanted for some criminal offense.
Our initial inquiry is whether the facts elicited were sufficient to justify a Terry stop at this point. At the suppression hearing, the trial judge ruled, in part:
I‘m going to deny the motion. I heard testimony that the—uncontradicted
testimony ... that satisfies me that there was nervous evasive behavior, that it was in a high drug activity area, and that all of these put together, as well as some other minor fаctors that the officer testified to, provides for the objective justification for a brief detention under Terry and other cases....
We agree with the trial court‘s finding that the stop was proper. A defendant‘s presence in a high crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify and investigatory stop.12 All of those factors were present in the instant case.
Because Williams had the reasonable suspicion necessary to make a Terry stop, he was entitled under
When Williams attempted to do a patdown search, however, defendant pushed himself away from the wall and collided with Deputy Williams. Williams then took defendant by the arm, walked defendant to his police car, and handcuffed defendant, with the intention of arresting him for battery on a police officer. Deputy Williams positioned defendant against the vehicle and again attempted to frisk him. While Deputy Williams was frisking him, defendant kicked back at Williams with both legs, turned, аnd kicked Deputy Williams in the chest with his knee. When Deputy Williams was knocked off balance, defendant fled on foot across the Westbank Expressway.
Both Deputy Williams and Deputy-Trainee Newby chased defendant. Williams tackled defendant and, after subduing him, advised defendant of his Miranda rights. Deputy Williams then handed defendant over to Deputy-Trainee Newby and another deputy, who escorted defendant back to the patrol car. Newby searched defendant, pursuant to a search incident to arrest, and found the cocaine.
Our next inquiry is whether the search that resulted in the сocaine seizure was valid. A search conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement.13 When the constitutionality of a warrantless search is at issue on a motion to suppress, the State bears the burden of affirmatively showing that the search was justified by one of the exceptions to the warrant requirement.14 One recognized exception is where a search is incident to a lawful arrest.15 In a search incident to a lawful arrest, the officеr may search the suspect‘s person and the area within his immediate control in order to remove weapons and prevent evidence from being destroyed.16
An arrest is lawful when it is
Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.
The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty.18 A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave.19 Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person‘s liberty.20 In Fisher, the court found that forcibly restraining the defendant by handcuffing him and putting him in the back seat of the police car constituted an arrest, as no reasonable person could have believed he was “free to go” at that point.
Deputy Williams testified at the suppression hearing that, even though he considered defendant under arrest after defendant was handcuffed, he did not advise defendant that he was under arrest until after defendant ran from him. Nonetheless, Deputy Williams testified that, after he subdued defendant following the foot chase, he advised defendant of his Miranda rights, which clearly indicates that defendant was under arrest at that time. Deputy-Trainee Newby searched defendant and recovered the cocaine in his pocket subsequent to his arrest.
We find that the initial stop and subsequent arrest were lawful and, thus, the cocaine seized from defendant‘s pocket following his arrest was the result of a valid search incident to arrest. Based on those findings, we conclude that the seizure did not violate defendant‘s Fourth Amendment rights, and the trial court did not err in denying defendant‘s motion to suppress.
In his second assignment of error, defendant argues that his request for a mistrial should have been granted. Specifically, he contends that he was entitled to a mistrial when the State made referencеs to the marijuana seized from defendant at the time of his arrest. He further asserts that he was prejudiced by the introduction of this “other crimes” evidence.
After defendant was arrested, Deputy-Trainee Newby seized marijuana from defendant‘s pocket. Defendant was charged in a separate bill of information since the possession of marijuana is a misdemeanor offense, triable by a judge. Prior to trial, the parties agreed that the trial judge would hear the marijuana charge and the jury would hear the cocaine charge in the same proceedings.21 The prosecutor mentioned the seizure of the marijuana in her opening statement, without objection by the defense.
Apparently, the prosecution and the defense also agreed to have the State‘s expert chemist identify the marijuana outside of the jury‘s presence. During direct examination of the chemist, Daniel Waguespack,
Out of the jury‘s presence, defense counsel moved for a mistrial, on grounds that the State had produced “other crimes” evidence. The prosecutor argued that the marijuana was admissible as res gestae. The trial judge correctly noted that defense counsel did not make a timely objection during the opening statement. After hearing arguments on the matter, the trial court denied the mistrial motion.
Generally, evidence of other crimes committed by the defendant is inadmissible at trial because of the risk of grave prejudice to the defendant.22 Moreover,
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
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(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
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Mistrial is a drаstic remedy which should be employed only where remarks result in a substantial prejudice sufficient to deprive the defendant of a fair trial.23 A determination of whether prejudice has resulted lies within the sound discretion of the trial judge.24
Initially, we note that defendant is not entitled to raise, on appeal, the prosecutor‘s mention of the marijuana in her opening statement because he failed to make a contemporaneous objection as required under
Nevertheless, even if the marijuana reference was not necessary to сomplete the story of the crime at issue but
Defendant concedes, in his appellate brief, that his own counsel mentioned the seizure of the marijuana in his closing argument. Thus, the verdict rendered, in this case, cannot be attributed solely to the erroneous reference by the prosecutor. Defendant‘s trial counsel contributed to any prejudice defendant may have suffered. We find that, even if the trial court erred in allowing the prosecutor to refer to the marijuana, its denial of defendant‘s mistrial motion was harmless.
In his third assignment of error, defendant argues that his motion to quash the multiple bill should have been granted. Specifically, he argues that the State failed to meet its burden of showing that his guilty plea to one of the predicate felonies in the habitual offender bill was made knowingly and voluntarily.
Herе, the two prior felonies alleged by the State were a conviction for distribution of cocaine in Jefferson Parish in 1996 (case number 96-6214), and a conviction for possession of cocaine with intent to distribute in Jefferson Parish in 1990 (case number 89-4982). Defendant allegedly pled guilty to both offenses.
On April 20, 2001, defendant filed a motion to quash the habitual offender bill, alleging that his guilty plea in case number 89-4982 was defective because he was not informed of his right against self-incrimination. Defendant attached, to his motion, a transcript of the guilty plea proceedings in case number 89-4982 аnd guilty plea/advisal of rights forms for both cases (89-4982 and 96-6214).
After a hearing on June 1, 2001, the trial judge denied the motion to quash. On the same day, the court held a habitual offender hearing and found defendant to be a third felony offender.
On appeal, defendant reasserts the arguments he made below. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant‘s habitual offender status, it has the burden of proving the existence of that guilty plea and that the defendant was represented by counsel. If the State meets that burden, then thе burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea. The State can meet this burden by producing a “perfect” transcript of the guilty plea colloquy.
A “perfect” transcript is one that reflects a voluntary, informed, and express waiver of the constitutional rights expressed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969): the rights to trial by jury and confrontation, and the privilege against self-incrimination. Anything less than a “perfect” transcript, e.g., a guilty plea form, minute entry, or imperfect transcript, must be weighed by the trial judge, who makes a determination as to whether the defendant‘s prior plea was knowing and voluntary.28
Finally, as is our procedure under
On June 1, 2001, defendant was found to be a third-felony offender and sentenced to 20 years at hard labor pursuant to
Defendant‘s underlying conviction is a felony drug offense committed on May 28, 2000. At the time defendant committed the underlying offense, the applicable portion of the Habitual Offender Law,
If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
In Act 403 of the 2001 Regular Session, effective June 15, 2001, the Louisiana Legislature amended
If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
This Court has held that the pre-amendment version of
Under the pre-amendment statute, the mandatory minimum sentence for defendant is life imprisonment without benefit of parole, probation, or suspension of sentence. Here, the trial judge sentenced defendant to 20 years at hard labor. Moreover, the trial judge failed to require that the sentence be served without bеnefit of parole, probation, or suspension of sentence. Defendant‘s sentence is, thus, illegally lenient.
This Court has authority under
In this case, the trial court acted in response to defense counsel‘s request for leniency, based on State v. Dorthey, 623 So.2d 1276 (La.1993).33 Before imposing sentence, the triаl judge commented, “And now in this case I don‘t think it is the purposeless imposition of pain and suffering but I do think if I sentence him to life for possession it is grossly out of proportion to the severity of the crime.”
Considering that the trial court gave extensive and specific reasons under Dorthey for deviating from the mandatory minimum sentence, and the State does not challenge the sentence on appeal, we decline to exercise the discretion provided in
Finally, we note that the trial court‘s advisal at defendant‘s original sentencing of the time limits provided in
Based on the foregoing, defendant‘s conviction and sentence are affirmed. We remand for the trial court to inform the defendant of the delays for filing for postconviction relief.
AFFIRMED AND REMANDED.
Notes
In Dorthey, the supreme court held that the trial judge is empowered to deviate from a mandatory minimum sentence in a habitual offender proceeding.
If ... the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.