State v. JenkinsState v. Jenkins
1. The trial court erred in denying defendant‘s motion to suppress the evidence.
2. The trial court erred in denying defense counsel‘s motion for a mistrial and allowing evidence of other crimes to be admitted in violation of the Louisiana Code of Evidence Articles 404 and 1103, and State v. Prieur, 277 So.2d 126 (La.1973).
3. The evidence presented at trial was not sufficient to support the verdict rendered.
The trial court erred in denying the defendant‘s motion for a new trial.
The trial court erred in denying the defendant‘s motion for a post judgment verdict of acquittal.
4. The trial court erred in sentencing the defendant to an excessive sentence.
5. Also assigned as error are any and all errors patent on the face of the record.
FACTS
The Jefferson Parish Sheriff‘s Office Narcotics Division obtained a warrant to search an apartment from which the defendant was believed to be selling dilaudid. Upon entering the apartment Agent William Grieff proceeded to a bedroom where he found the defendant and three other individuals. Agent Grieff observed a pink balloon in the defendant‘s mouth and also saw him throw a yellow balloon to the floor. The balloons were retrieved and contained what appeared to be dilaudid. Also seized during the search were six syringes, six bags of balloons and $4,165.00 in cash. The defendant was arrested and charged with possession of dilaudid with intent to distribute.
ASSIGNMENT OF ERROR NUMBER ONE
The trial court erred in denying defendant‘s motion to suppress the evidence.
The defendant attacks the reliability of the information obtained by officers from a confidential informant and then used in the search warrant application.
The defendant alleges that the search warrant in this case was issued on the basis of an affidavit containing uncorroborated information from a confidential informant. However, a review of that affidavit convincingly refutes that allegation. Agent Grieff prepared the application for the search warrant at issue. In his affidavit, Agent Grieff fully set forth the information giving rise to probable cause for the issuance of the search warrant. On separate occasions, two confidential informants advised Agent Grieff that the defendant was conducting narcotics transactions at the address for which the warrant was sought. The affidavit recites that each of these confidential informants had previously provided police authorities with information leading to criminal arrests and convictions. This recitation, standing alone, has been held sufficient to establish the reliability of a confidential informant. State v. Rattler, 532 So.2d 852 (La.App. 4th Cir. 1988). However, the affidavit presented to the district judge further establishes that Agent Grieff conducted surveillance activities which corroborated information he received from the confidential informants. Agent Grieff, himself, observed various individuals engage in what appeared to be narcotics transactions at the apartment sought to be searched. These individuals would arrive at the apartment and then quickly depart after staying there only
The affidavit prepared and submitted by Agent Grieff established probable cause for the issuance of the search warrant, and the trial judge therefore properly denied the defendant‘s motion to suppress. State v. Bourg, 470 So.2d 291 (La.App. 5th Cir. 1985), writ denied, 475 So.2d 354 (La. 1985).
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
The trial court erred in denying defense counsel‘s motion for a mistrial and allowing evidence of other crimes to be admitted in violation of the Louisiana Code of Evidence Articles 404 and 1103, and State v. Prieur, 277 So.2d 126 (La.1973).
The defendant argues before this court, as he did below, that Agent Grieff‘s testimony regarding information about the defendant packaging and keeping dilaudid tablets violated
Except as provided to Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
In State v. Prieur, 277 So.2d 126 (La.1973), the Louisiana Supreme Court announced safeguards applicable when the state intends to offer other crimes evidence against the defendant in a criminal trial. The defendant in this case correctly points out that the enactment of the Louisiana Code of Evidence neither overruled Prieur nor modified its safeguards. See
Agent Grieff testified that, when he entered the bedroom, he saw a pink balloon in the defendant‘s mouth. He then began to state that he was aware that the defendant packaged and stored dilaudid in balloons, but the defense objected. The purpose of this testimony was to lay a foundation to explain Agent Grieff‘s subsequent actions to retrieve the balloons from the defendant. The challenged testimony therefore related to conduct which constituted an integral part of the narcotics activity
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE
The evidence presented at trial was not sufficient to support the verdict rendered.
The trial court erred in denying the defendant‘s motion for a new trial.
The trial court erred in denying the defendant‘s motion for a post judgment verdict of acquittal.
The defendant next argues that the evidence presented at trial was legally insufficient to support his conviction.
In order to convict the defendant, the state had to prove that the defendant took actions for the purpose of and tending directly toward the possession of dilaudid with the intent to distribute it. These actions must have been taken by the defendant with the specific intent to commit the offense of possession with intent to distribute.
The evidence presented by the state at trial was legally sufficient to support the defendant‘s conviction. Agent Grieff testified that, when he entered the bedroom of the apartment being searched, the defendant had a pink balloon in his mouth. Upon seeing the officer, the defendant threw a yellow balloon to the floor. Agent Grieff retrieved the balloons and discovered that they contained a total of 49 tablets, which appeared to be dilaudid. Laboratory analysis confirmed that the tablets were dilaudid. Although the defendant alleged that he neither brought the illegal drugs to the apartment nor had them in his possession, the jury apparently rejected those allegations. When the jury accepted Agent Grieff‘s testimony over the defendant‘s version of the incident, the standard for sufficiency of the evidence was satisfied. State v. Ortiz, 520 So.2d 1200 (La.App. 5th Cir.1988).
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER FOUR
The trial court erred in sentencing the defendant to an excessive sentence.
At the sentencing in this case, the trial judge stated that he formulated the defendant‘s sentence after carefully considering the court-ordered pre-sentence investigation report and the sentencing guidelines of
The prison term imposed on the defendant is illegally excessive. The maximum prison sentence for attempted possession of dilaudid with intent to distribute is 5 years.
While the fine imposed on the defendant is within the allowable range for this offense, the excessive prison term and the fine comprise a single sentence.
ASSIGNMENT OF ERROR NUMBER FIVE
Also assigned as error are any and all errors patent on the face of the record.
An examination of the record in this case discloses no patent errors other than the sentencing error previously discussed.
This assignment of error lacks merit.
DECREE
The conviction of the defendant is affirmed, the sentence is vacated and the matter is remanded for re-sentencing.
CONVICTION AFFIRMED, SENTENCE VACATED, REMANDED FOR RESENTENCING.