State v. DucreState v. Ducre
STATE of Louisiana
v.
Paul DUCRE and Whilamena Ducre.
Court of Appeal of Louisiana, First Circuit.
*704 William R. Campbell, New Orleans and Charles Collins, Asst. Dist. Atty., Covington, for the State.
George C. Ehmig, Covington, for appellants.
Before COVINGTON, C.J., and LeBLANC and WHIPPLE, JJ.
COVINGTON, Chief Judge.
The defendants, Paul and Whilamena Ducre, were charged by bill of information with possession of marijuana with intent to distribute, a violation of
1. The trial court erred in denying the defendants' motion to suppress.
2. The trial court erred in denying the defendants' motion for a new trial.
FACTS
At approximately 9:00 p.m. on August 8, 1990, Detective John Lapouble of the St. Tammany Parish Sheriff's Office received a call from a confidential informant indicating that a black male wearing a green baseball cap and a green shirt was selling marijuana in the parking lot of the Dew Drop Inn in Slidell, Louisiana. In the past, this confidential informant had given Lapouble information which led to an arrest. Lapouble and several other officers went to the Dew Drop Inn lounge in two unmarked police vehicles. When they entered the parking lot, they observed a black male suspect with a green baseball cap and a green shirt standing beside a tan Ford LTD. The suspect, later identified as Jesse Ray Smith, was leaning inside the driver's window of the Ford LTD; his hands were completely inside the driver's window. The occupants of the tan Ford LTD were later identified as the defendants; Paul Ducre was the driver, and Whilamena Ducre was the front seat passenger. When the officers exited their vehicles, Mr. Smith immediately turned and began walking away. He reached inside his back pants pocket and began to remove a plastic bag containing what appeared to be marijuana. However, he was immediately apprehended by Det. Mark Hebert, who seized the bag of suspected marijuana. When the other officers secured Mr. Smith, Detective Hebert walked over to the defendants' vehicle and asked them for somе identification. Because the interior light was turned on, he *705 was able to observe what appeared to be a marijuana cigarette inside the ashtray. He advised the defendants of their Miranda rights, seized the marijuana cigarette, and placed the defendants under arrest. He then searched the interior of the vehicle. In a white plastic shopping bag underneath the front driver's seat, Hebert discovered several bags containing various amounts of whаt appeared to be marijuana. He found two clear plastic bags wrapped inside a blue and white towel or rag on the dashboard. One contained a small amount of what appeared to be marijuana; the other bag contained twenty white pills and one pink pill. Also discovered inside the vehicle were cigarette rolling papers and some empty clear plastic sandwich bags. Meanwhile, Detective Richard Magee searched Mr. Smith and recovered a Sucrets can which contained three suspected marijuana cigarettes. Subsequently, tests at the Louisiana State Police Crime Lab revealed all of the suspected marijuana to actually contain marijuana; the pink pill contained dextropropoxyphene; however, the twenty white pills were free of controlled dangerous substances.
At the trial, Detective Lapouble testified concerning the telephone call from the confidential informant and the facts surrounding the arrest of the defendants in the parking lot of the Dew Drop Inn lounge. His testimony was corroborated by the testimony of Detectives Magee and Hebert.
Defendants took the stand in their own defense. Paul Ducre testified that, on the morning of August 8, he took his wife, Whilamena Ducre, to the North Shore Hospital. He explained that she was receiving back treatments for a work-rеlated accident. Early that afternoon, he went to Bill Garrett Chevrolet and obtained the tan Ford LTD, which was loaned to him by the dealership until his truck was repaired. He picked up his wife at the hospital at approximately 2:00 p.m. Later that evening, he and his wife went to the Dew Drop Inn lounge in an attempt to locate his brother. Ducre testified that he went inside the lounge, looked around, but did not see his brother. When he returned to the parking lot, Jesse Smith approached; and they began a conversation. Suddenly, two cars pulled into the parking lot; and several police officers exited with guns drawn and instructed everyone not to move. The officers grabbed Mr. Smith (who was walking away at the time) and searched him. Then one officer approached Mr. Ducre and ordered him to get out and put his hands on top of the car. He complied. The officer searched him and handcuffed him. According to Mr. Duсre, the officer then searched the entire vehicle without his permission and without a warrant. Next, the officers took his wife out of the car, searched her person and her purse, and handcuffed her.
Mr. Ducre specifically denied engaging in any drug transaction with Mr. Smith. He also denied seeing any marijuana in the tan Ford LTD. Mr. Ducre explained: "I don't know where that [the marijuana] come (sic) from. They came up with it when we got to the station." Finally, he testified that the marijuana recovered by the officers did not belong to him, he was not aware of its existence, and he had no reason to believe that it was inside the car because he had just picked up the car from the Chevrolet dealership that morning.
On cross-examination, Mr. Ducre denied observing a marijuana cigarette in the ashtray, although he had been driving the car for several hours that day. He explained that his wife was taking pain pills for a back injury, but he сould not name the type of medication. He testified that his wife had a prescription for the pain pills and, in fact, had just filled the prescription the day of their arrest. However, Mr. Ducre denied seeing a blue and white rag or towel on the dashboard of the vehicle.
Whilamena Ducre testified that she arrived at the hospital at approximately 8:30 a.m. on August 8. When her husband picked her up at approximately 2:00 p.m., he was in a different vehicle, the tаn Ford LTD which he had obtained from Bill Garrett Chevrolet. After leaving the hospital, they bought some hay and feed for their animals, which was placed in the trunk of the car. They also stopped at the home of Mr. Ducre's father before returning to their own home. At approximately 8:00 *706 p.m., they left home and went to look for Mr. Ducre's brother. After stopping at Domino's Pizza, they arrived at the Dew Drop Inn lounge. While he went inside the lounge, Mrs. Ducre remained in the vehicle еating pizza. As he returned to the car, Mr. Smith approached and began a conversation. According to Mrs. Ducre, the police officers drove into the parking lot so fast that she believed someone would be killed. The officers seized Mr. Smith, threw a bag on top of the car, and handcuffed him. One officer ordered Mr. Ducre to get out of the car. He complied and was handcuffed. Mrs. Ducre testified that two different officers searched inside thе tan Ford LTD. She denied seeing any bags of marijuana or marijuana cigarettes inside the vehicle. She also testified that she informed the officers that, if they intended to arrest her, she needed her pills, whereupon one officer looked inside the vehicle and found the bag containing her pills. However, Mrs. Ducre denied seeing a blue and white rag or towel inside the vehicle. She explained that the pink pill was a pain pill prescribed by Dr. James Gosey in Slidеll and that she had filled this prescription in Lacombe. At the trial, she produced a similar pink pill and a prescription bottle, although these items were not actually introduced into evidence.
ASSIGNMENT OF ERROR NUMBER ONE:
In this assignment of error, the defendants contend that the trial court erred in denying their motion to suppress physical evidence. Specifically, the defendants contend that the officers lacked probable cause for the initial detention and, therefore, the subsequent search, seizure of evidence, and the arrest of the defendants was illegal.
The Fourth Amendment to the United States Constitution and Article I, Section 5, of the Louisiana Constitution protect people against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by Louisiana Code of Criminal Procedure Article 215.1, as well as both federal and state jurisprudence. Terry v. Ohio,
At the trial,[1] Detective Hebert admitted that the officers had not received information that the defendants were engaged in criminal activity. However, he testified that he suspected Jesse Smith "had something to do with the people inside the vehicle." Under the circumstances presented herein, we find that his suspicion that the defendants might be engaged in criminal activity was reasonable. Detective Lapouble had received information from a confidential informant that Jesse Smith was selling marijuanа in the parking lot of the Dew Drop Inn lounge. An informant's tip can provide a police officer with reasonable cause to detain and question a *707 suspect. State v. Borning,
Having found that Detective Hebert had reasonable suspicion to detain the defendants and question them pursuant to La.C.Cr.P. art. 215.1, we now consider the seizure of physical evidence. Seizures of evidence under the plain view doctrine are permissible when: (1) there is a prior justification for an intrusion into a protected area; (2) in the course of which evidence is discovered inadvertently;[2] and (3) it is immediately apparent without close inspection that the items are evidence or contraband. State v. Hernandez,
Immediately upon approaching the defendants' vehicle and asking for identification, Det. Hebert looked inside the vehicle and observed what appeared to be a marijuana cigarette in the ashtray. If an officer has lawfully detained a person based upon reasonable cause, and he sees direct evidence of a crime in plain view, based on that evidence he has probable cause for arrest and may seize the evidence in plain view. State v. Beasley,
This assignment of error is meritless.
ASSIGNMENT OF ERROR NUMBER TWO:
In this assignment of error, the defendants contend that the trial court erred in denying their motion for a new trial. We note that, in order to challenge these convictions on the basis of insufficiency of the evidence, the defendants should have proceeded by way of a motion for post verdict judgment of acquittal. See La.C.Cr.P. art. 821. Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error. See State v. Tate,
The standard of review for the sufficiency of the еvidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. King,
*708 In their brief to this Court, the defendants do not contest the sufficiency of the evidence of their possession with intent to distribute marijuana convictions. Instead, the instant assignment of error relates only to their convictions for possession of dextropropoxyphene with intent to distribute. The defеndants contend that the evidence was insufficient to prove an intent to distribute, since only one pill containing dextropropoxyphene was recovered from their vehicle. The defendants also contend that their possession of this single pill containing dextropropoxyphene was not unlawful, since Mrs. Ducre "had just been to the hospital and was under the care of a physician, who had prescribed this pain killer."
Dextropropoxyphene is classified as a Schedule IV controlled dangerous substance. See
At the trial, Whilamena Ducre testified that she had been under a doctor's care for a back injury for several years and had prescriрtions for the pink pill (dextropropoxyphene), which she apparently brought with her in her purse. She twice offered to show these prescriptions to the attorneys, who did not examine them, and also offered to show them a prescription bottle for the pink pills. Her explanation of why the white pills and pink pill were in a sandwich bag was that the bottle for the white pills had been cracked; she apparently kept her pink pill for pain with her in сase she needed it.
Both the prosecuting attorney and her defense attorney examined the prescription bottle in the presence of the jury, reading the name of the doctor and the date and place the prescription was filled from the label and questioning her about these items. Mrs. Ducre testified that the pink pill containing dextropropoxyphene was a pain pill prescribed by Dr. James Gosey in Slidell and that she had that prescription filled in Lacombe in February, 1990. She denied that the plastic bag containing these pills was wrapped inside a blue and white rag or towel. She testified that she never saw such a towel inside the car. Strangely, the prescriptions she offered to show from her purse and the bottle were not offered into evidence by her attorney.
The intent to distribute may be inferred from the surrounding circumstances. The trier of fact may look to how the substance was pаckaged, the quantity of the substance seized, and the presence of scales or other paraphernalia for drug use or packaging. State v. Jordan,
In this instance, we find that the surrounding circumstances do not support an inference of an intent to distribute dextropropoxyphene. While there was certainly a large enough quantity of marijuana present to support the conviction pertaining to that substance, the presence of a single pill сontaining a controlled dangerous substance in a sandwich bag with other pills which were not controlled does not support the inference of an intent to distribute dextropropoxyphene. Although the pill was contained in a sandwich bag rather than its proper container, this circumstance alone, in view of the lack of other indicia of a transaction involving the dextropropoxyphene, does not meet the standard of Jackson v. Virginia.
However, wе find that the evidence was sufficient to support a conviction for the lesser, included, responsive verdict of simple possession of dextropropoxyphene, under Jackson v. Virginia. See, LSA-C.Cr.P. art. 821 E; LSA-C.Cr.P. 814 A(49); State v. Byrd,
It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, *709 indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.
See, State v. Lewis,
Accordingly, we set aside the convictions for possession of dextropropoxyphene with intent to distribute, vacate the sentences, and remand the matter to district court with instructions to enter a judgment of guilty of possession of dextropropoxyphene and for resentencing.
This assignment of error has merit.
PATENT SENTENCING ERROR
We note the existence of two patent sentencing errors. First, the trial court erred by sentencing the defendants without waiting twenty-four hours after the denial of their oral motion for a new trial. See La.C.Cr.P. art. 873. The record reflects no waiver of this time period by the defendants. Although the defendants should have filed a written motion for a new trial (see La.C.Cr.P. art. 852), they stated that the oral motion for a new trial would be supplemented by a written motion, and the trial court considered and denied the motion. In fact, the record reflects that a written motion for new trial was filed on the day after sentencing. (R 34). Nevertheless, in State v. Augustine,
Second, we note that the trial court did not give the defendants credit for time served when the sentences were imposed. La.C.Cr.P. art. 880 requires the court to give the defendant "credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence." Patent sentencing error occurs when the trial court fails to specify credit for time served. State v. Greer,
For the foregoing reasons, the convictions and sentences of defendants for possession of marijuana with intent to distribute are affirmed as amended. The conviсtions of defendants of possession of dextropropoxyphene with intent to distribute are set aside and these sentences are vacated; the case is remanded to the district court with instructions to enter a judgment of *710 guilty of possession of dextropropoxyphene.
CONVICTIONS AND SENTENCES FOR POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AFFIRMED AS AMENDED; CONVICTIONS OF POSSESSION OF DEXTROPROPOXYPHENE WITH INTENT TO DISTRIBUTE ARE SET ASIDE AND SENTENCES ARE VACATED; REMANDED WITH ORDER.
NOTES
Notes
[1] In determining whether or not a ruling on a motion to suppress was correct, this Court is not limited to the evidence adduced at the hearing on that motion. Instead, we may consider all pertinent evidence given at the trial of the case. State v. Fleming,
[2] The inadvertent discovery condition was recently deleted from the plain view doctrine. See Horton v. California,