State v. HarrisState v. Harris
Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant.
(Court composed of Judge MIRIAM G. WALTZER, Judge DENNIS R. BAGNERIS, Sr. and Judge ROBERT A. KATZ).
WALTZER, Judge.1
Defendant, Edward J. Harris, was charged by bill of information with distribution of cocaine in violation of
STATEMENT OF FACTS
On 29 September 1997, Sgt. Patrick Burns was supervising a “buy-bust” operation. Det. Adam Henry was the undercover agent. Sgt. Brown supplied Det. Henry with one hundred dollars in marked currency. Henry was dressed in plain clothes and drove a nontraditional unmarked police vehicle equipped with audio and video recorders and a transmitter. At approximately 10:30 p.m., Sgt. Brown and Det. Paul Toye positioned their vehicle at the intersection of Clara Street and Jackson Avenue. Shortly thereafter, Det. Henry drove into the area. As Det. Henry turned onto Clara Street, the defendant, who was standing in the 2100 block of Clara Street, made contact with Det. Henry. Sgt. Brown heard through his transmitter Det. Henry ask defendant to sell him two pieces of crack cocaine. Once the transaction was completed, Henry drove out of the area and provided Sgt. Brown and Det. Toye with a description of the defendant. Sgt. Brown observed the defendant wearing a white tee shirt with “French Quarter” written across the chest
Detective Adam Henry testified that he participated in a “buy-bust” operation as an undercover agent. He was dressed in plain clothes and drove an undercover vehicle equipped with electronic recording and transmitting equipment. Det. Henry stated that as he turned onto Clara Street, the defendant flagged him down. The officer asked the defendant for “two dimes.” The defendant and the officer then exchanged money for two pieces of cocaine. After the purchase was completed, Henry left the area and gave the other officers a description of the defendant. After the other officers apprehended the defendant, Sgt. Brown met Henry away from the sсene. Brown showed him a Polaroid photograph. Henry identified the defendant in the photograph as the person who sold him the crack cocaine.
Officer Travis McCabe testified that after having received a description of the defendant, he proceeded to the 2100 block of Clara Street and observed the defendant standing on the right side of the street. When the defendant saw the police vehicle, he fled down a driveway. Officer McCabe exited his vehicle and pursued the defendant on foot. McCabe saw the defendant take the weapon from his waistband and throw it on the ground. Officer McCabe apprehended the defendant in the rear yard of a residence on Clara Street. Det. Toye assisted in the defendant‘s apprehension and retrieved the fully loaded weapon while McCabe arrested the dеfendant.
Det. Toye testified that he saw the defendant throw a gun to the ground during the pursuit. Det. Toye retrieved the weapon, which was a .38 caliber Smith & Wesson revolver and searched the defendant after his arrest, finding marked currency (a twenty dollar bill) and an additional seven dollars.
The parties stipulated at trial that the two rocks sold by the defendant to Det. Henry tested positive for cocaine.
The defendant, Edward Harris, denied selling cocaine to Det. Henry. Harris testified that he was walking from an all night liquor store with a friend, Herman Harris, when the police stopped them. The defendant stated that the police pushed him to the ground and asked him the location of a “bag of rocks.” The defendant denied having a “bag of rocks” or knowing the location of the “bag of rocks.” A sergeant then came over and told the officers to search the whоle area for the cocaine. An officer found a gun in the area. The defendant denied ownership of the gun. The defendant claimed that he did not run from the police officers. He stated that he was beaten and kicked by the officers.
On rebuttal, Sgt. Brown testified that he did not see any officers kick and/or beat the defendant. He stated that the defendant did not have any injuries and was not taken to the hospital after his аrrest.
ERRORS PATENT REVIEW
A review of the record for errors patent reveals several errors. The record shows that the trial court sentenced defendant immediately after having denied defendant‘s motions for new trial and post verdict judgment of acquittal. There is no indication in the record that the defendant waived his rights to all legal
The sentеnce imposed on the distribution conviction is illegally lenient. The trial court sentenced defendant to serve twenty years at hard labor but failed to state that the first five years of the sentence was to be served without benefit of parole, probation or suspension of sentence as required by
The trial court granted the defendant‘s motion for appeal prior to sentencing the defendant under the multiple bill. However, this error is harmless. See State v. Warren, 538 So.2d 1036, 1037 (La.App. 4 Cir.1989).
The record also reveals a double jeopardy issue. The defendant was convicted of distribution of cocaine and possession of a firearm while distributing cocaine. Because the distribution of cocaine was an element of the offense of possеssion of a firearm while distributing cocaine, the double jeopardy clauses of the United States and Louisiana Constitutions were violated. See State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324.
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) the U.S. Supreme Court established the distinct fact test:
The applicable rule is that where the same act or transaсtion constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
This rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Knowles, 392 So.2d 651 (La.1980), writ granted, release ordered, 395 So.2d 678 (La.1981). The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offense charged.
Louisiana uses both the Blockburger test and the “same evidence test“. State v. Hayes, 412 So.2d 1323, 1325 (La. 1982). When a defendant is charged with separate statutory crimes the crimes need not be identical in elements or in actual proof to be the same within the meaning of the constitutional prohibition. State v. Hayes, supra. Louisiana has followed a form of the “same evidence” rule, as stated in State v. Roberts, 152 La. 283, 286, 93 So. 95, 96 (1922) as follows:
(I)dentity of the offenses is an essential element in support of a plea of autre fois. By this is not meant formal, technical, absolute identity; the rule is that there must be only substantial identity, thаt the evidence necessary to support the second indictment would have been sufficient for the first.
The “same evidence test” is used in Louisiana. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Didier, 262 La. 364, 263 So.2d 322, 326 (1972). If the evidence required to support a finding of
The defendant was charged and convicted of distribution of cocaine and possession of a firearm while distributing cocaine. The defendant‘s conviction for possession of a weapon while distributing cocaine required the use of the same evidence needed to convict the defendant of distribution of cocaine. In fact, the State argued at trial that the defendant was in possession of the gun at the time he sold the cocaine to Detective Henry. Thus, defendant‘s convictions for both offenses violate his constitutional rights against double jeоpardy.
The defendant‘s conviction and sentence for possession of a firearm while distributing cocaine are therefore vacated.
Where the multiple counts arise out of a single episode of criminal conduct, each count cannot be enhanced under the multiple offender statute. State v. Ward, 94-0490 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, writ denied 97-0642 (La.9/19/97), 701 So.2d 165
FIRST PRO SE ASSIGNMENT OF ERROR: Defendant contends that he did not receive a fair trial in violation of the Sixth and Fourteenth Amendments to the Unitеd States Constitution.
The defendant argues that the trial court erred when it denied his motion to produce exculpatory evidence that the weapon was rusty. In light of our disposition of the double jeopardy issue, this assignment of error is moot.
SECOND PRO SE ASSIGNMENT OF ERROR: The trial court erred in finding the police officers had reasonable cause to detain him.
A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense.
In the case at bar, the police оfficers had reasonable cause to stop the defendant as the defendant fit the description of the person who sold crack cocaine to Detective Henry. The officer testified that he broadcast a description of the defendant after he purchased the cocaine from the defendant. Officer Travis McCabe and Detective Paul Toye observed that the defendant fit the descriрtion and attempted to detain the defendant. When the defendant saw the officers approaching, he attempted to flee the area. The officers pursued the defendant at which time the defendant discarded a gun. Thus, the officers had reasonable cause to detain the defendant. Initially, they had a reasonable belief that the defendant had sold cocaine to Det. Henry. After the defendant ran аnd threw down the weapon, the officers also had cause to believe that the defendant was illegally in possession of a firearm. Thus, the officers had reasonable cause to detain the defendant and probable cause to arrest him.
This assignment is without merit.
THIRD PRO SE ASSIGNMENT OF ERROR: The trial court erred in denying motions for new trial and post verdict judgment of acquittal.
Defendant argues that there was newly discovered impeachment evidence cоntained in his Charity Hospital medical records and that the trial court should have granted his motions based upon the newly discovered evidence. However, a
This assignment is without merit.
FOURTH PRO SE ASSIGNMENT OF ERROR: Defendant was denied full appellate review because of the absence of portions of the transcript.
Without a complеte record from which a transcript for appeal may be prepared, a defendant‘s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant‘s conviction. But where a defendant‘s attorney is unable, through no fault of his own, tо review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.
In the case at bar, the defendant filed a “Motion for Production of Document, Missing Trial Transcripts, A[n] In Camera Production Inspection of Trial Tapes of March 19, 1998, and Suspend Briefing Schedule” in this Court оn July 20, 1999. This Court ordered the motion deferred to the merits to be considered on appeal. State v. Edward J. Harris, unpub., 98-2932 (La.App. 4 Cir. 7/27/99).
In his motion, the defendant sought production of Detective Henry‘s cross-examination by defendant counsel, Officer Hite‘s testimony, Officer McCabe‘s testimony, and defendant‘s testimony about being taken to Charity Hospital. The defendant also sought the transcripts of the preliminary hearing, the probable cause hearing and closing argumеnts. The defendant further sought to obtain a transcript of defendant‘s request for a mistrial and the trial court‘s denial of the defendant‘s request. The defendant also demanded copies of all pretrial motions.
On 5 January 1999, the defendant pro se requested production of allegedly missing documents. This request included the pre-trial hearing transcript which had been ordered upon the motion of counsel. The appellant also requested, without stating reasons, closing arguments, defense counsel‘s request for a mistrial for the jury deliberating outside the presence of the jury room and the court‘s denial of the motion, the cross-examination of Detective Henry, the entire testimony of Officer Hite, the recall of Officer McCabe, and the portion of his own testimony concerning his being taken to Charity Hospital after his arrest.
On 30 March 1999, the record wаs supplemented with a certificate from the court reporter that there were no objections during closing argument, that the defendant did not make a motion for mistrial regarding the jury‘s deliberations, and that there was no recross-examination of Detective Henry. The court reporter also corrected an error in the transcript involving the question to defense counsel on whether there was recross; she сertified that his answer was “No.” The pre-trial motion hearing transcript was also filed.
The defendant also asserts that the recorded testimony of Officer Hite is missing. However, a thorough review of the record reveals no indication that Officer Hite testified at trial. Further, the defendant did not indicate the substance of Officer Hite‘s alleged testimony.
In сonnection with the allegation that portions of the testimony of Det. Adams, Officer McCabe, and the defendant himself, are missing, the defendant lists questions and responses that allegedly occurred. He also makes reference to a photograph of himself that was introduced at trial. However, the record does not support defendant‘s contentions. The court reporter certified that there was no reсross-examination of Detective Adams. Further, Officer McCabe did not testify on rebuttal. Sgt. Brown testified on rebuttal that the defendant was not taken to Charity Hospital. Finally, the defendant was permitted to testify that the police officers took him to Charity Hospital for treatment. The photograph to which the defendant refers was the Polaroid photograph taken the night of the offense and shown to Detective Henry. The рhotograph was introduced into evidence without objection by the defendant.
After having reviewed the defendant‘s allegations, it appears that there are no “missing transcripts.” The appeal record includes a transcript of all testimony taken at trial, including the jury charges, and transcripts of the motion and sentencing hearings. The court reporter certified that there were no objections during closing argument.
This assignment is without merit.
FIRST ASSIGNMENT OF ERROR: The State failed to produce sufficient evidence to support the conviction of possession of a firearm while distributing cocaine.
Because of our disposition of the double jeopardy issue, this assignment of error is moot.
SECOND ASSIGNMENT OF ERROR: The trial court erred in finding him to be a second felony offender.
The defendant argues that the State did not prove that his guilty plea to the predicate offense was knowingly and voluntarily made.
A review of the record reveals that the defendant did not file a written response to the multiple bill of information. Defendant‘s only objection at the multiple bill hearing went to the issue of chain of custody of the police records introduced into evidence.
The defendant‘s failure to file such a written response or object at the hearing precludes appellate review of defendant‘s argument.
This assignment is without merit.
THIRD ASSIGNMENT OF ERROR: The trial court imposed unconstitutionally excessive sentences.
In light of our disposition of the double jeopardy issue, the sentence on the multiple bill is vacated and the case is remanded for resentencing.
CONCLUSION
Accordingly, defendant‘s conviction for distribution of cocaine is affirmed. Defendant‘s convictions for possession of a weapon while distributing cocaine and as a multiple
CONVICTION FOR DISTRIBUTION OF COCAINE AFFIRMED. REMAINING CONVICTIONS AND SENTENCES VACATED. CASE REMANDED.