State v. LambState v. Lamb
In this civil forfeiture case, Claude Lamb appeals a judgment in favor of the State forfeiting $6,652 in cash seized from his possession during two 1989 arrests for possession of cocaine with the intent to distribute. For the reasons expressed, we affirm.
BACKGROUND FACTS
The instant matter has been before this court on two prior occasions, once to affirm Lamb‘s 30-year hard labor sentences for the criminal offenses and once to address the forfeiture issue. See, State v. Lamb, 566 So.2d 462 (La.App. 2d Cir.), writ denied, 569 So.2d 985 (1990); State v. Lamb, 26,257 (La.App.2d Cir.10/26/94), 645 So.2d 791. For purposes of the instant appeal, we reiterate the background facts of the arrests and convictions as set forth in State v. Lamb, 645 So.2d 791:
On May 2, 1989, police officers from the Metro Narcotics Unit of Ouachita Parish arrested Lamb on drug charges. At the time of the arrest, the officers seized $6,391.00 from Lamb‘s possession. Subsequent to the arrest, Lamb made bond and was released from jail. Then, on July 19, 1989, the police officers arrested Lamb again on drug charges. This time they seized $261.00 from his possession.
The Ouachita Parish district attorney filed a bill of information on August 2, 1989 which, after being amended on September 21, 1989, charged Lamb with one count of possession of cocaine with intent to distribute and one count of possession of twenty-eight grams or more, but less than two-hundred grams, of cocaine.
On October 25, 1989, another amended bill of information was filed, and pursuant to a plea bargain agreement, Lamb pled guilty to two counts of possession of cocaine with the intent to distribute. The plea bargain agreement did not provide for the disposition of the seized money. On January 4, 1990, the trial court sentenced Lamb to thirty years imprisonment.
Complaining only about the excessiveness of his sentence, Lamb appealed. On August 22, 1990, we affirmed. [citation omitted]. Then, on September 25, 1990, Lamb sought writs from the Louisiana Supreme Court. Two months later, November 26, 1990, the supreme court denied Lamb‘s writ application[.]
Prior to the denial of his writ application to the supreme court, Lamb filed a motion in October 1990 seeking a return of the evidence; the trial court eventually rendered judgment transferring ownership of the seized money to the Metro Narcotics Unit. In our prior opinion, we found those proceedings to contain numerous procedural irregularities attributable to both sides. Therefore, as a result of this “tortured procedural history,” we invalidated the judgment of forfeiture, set aside “all orders granting or denying motions which have as their subject matter the property involved in this case,” and remanded the matter for further proceedings.
Accordingly, on February 2, 1995, the State filed a new petition for forfeiture of the money seized from Lamb during both 1989 arrests.1 In this petition the State alleged the money to be derivative contraband from the sale of controlled dangerous substances (“CDS“) and thus, subject to
JUDICIAL ADMISSION
By his first assignment, Lamb contends, in essence, that the district court erred in not returning his property based on the fact the state had confessed in an earlier petition for forfeiture that the property was noncontraband. Put otherwise, he argues the state should be precluded from now claiming that it is drug related contraband. We disagree.
The state filed in the prior forfeiture proceedings motions to dispose of the cash seized in Lamb‘s arrests. These both alleged that the money was noncontraband upon which no claim had been made within two years after its seizure. The state‘s motions were obviously and erroneously based on
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.
Moreover, to constitute a judicial confession the statement must be the express acknowledgment of an adverse fact, the effect of which is to waive evidence as to the subject of the admission or to withdraw the matter from issue. Farmers-Merchants Bank and Trust Co. v. St. Katherine Ins., 93-552 (La.App. 3d Cir.3/9/94), 640 So.2d 353, writ denied, 94-0841 (La.5/13/94), 641 So.2d 204. Additionally, the adverse party must have believed the fact was no longer at issue or must have relied on it, to his detriment, before it can be a judicial confession. Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La.1992); Jefferson Parish Clerk of Court Health Ins. Trust Fund v. Fidelity and Deposit Co. of Maryland, 95-951 (La.App. 5th Cir.4/30/96), 673 So.2d 1238; Farmers-Merchants Bank and Trust Co. v. St. Katherine Ins., supra.
In the present case, Lamb has made no showing whatsoever that he has been prejudiced by the state‘s initial allegation that the money seized from him was noncontraband. He simply maintains that because the state first made such a declaration, the court should return the money based on his timely motion for its return; he adds that the assistant district attorney perjured himself in filing that pleading.
This argument lacks merit. As noted, the state initially proceeded under the noncontraband provision,
RETROACTIVITY OF AMENDMENT
By his second assignment, Lamb maintains that the trial court erred in basing its opinion on former
Lamb‘s arrests occurred in May and July 1989. On October 7, 1989, voters approved an amendment to
Personal effects shall never be taken. But the following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above described property had been rendered unavailable.
This amendment was intended to overrule the decision in State v. Spooner, 520 So.2d 336 (La.1988), which had examined forfeiture laws in the context of criminal proceedings and placed a heavy onus on the state in proving that property should be forfeited. See, State v. Clark, 94-598 (La. App. 3d Cir.2/21/96), 670 So.2d 493, writ denied, 96-1331 (La.2/7/97), 688 So.2d 495. The amendment elevated to constitutional status the forfeiture of contraband drug property by means of a civil proceeding. It also suppressed the traditional rationale employed in Spooner, supra, that forfeiture of drug tainted property was disfavored and that the defendant in a forfeiture case must receive the same due process considerations as in a criminal
In the absence of contrary legislative expression, substantive laws apply prospectively only.
Considering the prior constitutional provision and its interpretation in Spooner, supra, in contrast with the 1989 amendment and the subsequent statutes, we find the later laws are substantive in nature. They significantly altered how Louisiana law views forfeitures of drug related property and disturbed vested rights in certain personal property. Consequently, we hold that the applicable law in the instant case is that in effect on the dates of the seizure of the cash, not subsequent legislation. See, Aucoin v. State through DOTD, supra; Vernon v. Wade Correctional Inst., 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684. Thus, in the instant case, the trial court did not err in applying
STATE‘S PROOF OF FORFEITURE
By his third assignment, Lamb contends that the state failed to prove beyond a reasonable doubt that the cash taken from him during his arrests is derivative contraband and thus, subject to forfeiture under former
Things which are subject to forfeiture because they are the immediate instruments of a crime, but which are not ordinarily illegal to possess, such as automobiles, guns and currency, are classed as derivative contraband. State v. Spooner, supra; State v. Manuel, 426 So.2d 140 (La.1983). The State, at the time of Lamb‘s arrests, bore the entire burden of proving that the property in question qualifies as derivative contraband. Spooner, supra.
Former
In the present case, the state asked the judge to take judicial notice of the fact that Lamb had pled guilty and been convicted of possession of cocaine with the intent to distribute relative to the two arrests during which the cash now at issue was seized. The state also requested the judge take judicial notice of the entire criminal proceedings in which Lamb pled, particularly pointing out a bond hearing where Lamb stated he made an “insignificant amount of money” legitimately. The remaining evidence consisted of testimony by the state‘s two witnesses and several relevant state documents. The defendant made no objections to the introduction of any of the evidence.
Sergeant Curt Petterson of the Monroe Police Department testified that he was involved in both arrests of Lamb. Relative to the May 2, 1989 arrest, the policeman indicated that he had received information from a reliable confidential informant that a black male and a black female had been selling cocaine out of the Days Inn. He and another officer proceeded to the room number they had been given and encountered Estella McIntyre about to enter the room. Upon being invited into the room by her, they encountered Lamb and introduced themselves. At that point, they noticed a medicine bottle containing several readily identifiable rocks of crack cocaine in plain view on the dresser. Upon receiving consent to further search the room, one of the officers raised up a roof panel in the bathroom area which caused cocaine, razor blades and money to fall out upon him. Additionally, a .44 caliber weapon was found in the room; an item identified as commonly associated with drug dealing.
Officer Petterson further indicated that the controlled dangerous substance found in the ceiling was in the form of a “cookie” or a large piece of raw crack cocaine, from which it was evident smaller “rocks” were being removed using the nearby razors. The policeman, an experienced narcotics officer, noted that the $6,371 in cash that fell out of the ceiling with the cocaine was in small bills. He indicated that such large bundles of cash in small denominations are typically associated with the sale of drugs. Additionally, he indicated that Lamb, who originally denied knowing about the drugs or selling them, approached him during the booking procedure and claimed the cocaine and money belonged to Victor Kelly, a known local drug dealer, and stated that he had been selling the drugs for Kelly.
Regarding the July arrest, Officer Petterson testified that it had been made pursuant to the execution of a search warrant. The valid search warrant, introduced at trial, was based on information from a reliable confidential informant that Lamb
Finally, Officer Petterson testified that he had submitted all the seized items he suspected to be cocaine to the North Delta Crime Lab. He then identified the documents showing the results and noted that the submitted items had been analyzed and determined to be cocaine. He concluded his testimony by opining based on his experience with approximately 100 search warrants that the seized cash was the proceeds of drug sales, noting the way it was “wadded up and rolled up and just stuffed up with the cocaine.”
The only other witness to testify was Judy Brooks, the state probation officer who had prepared the PSI following Lamb‘s plea to the charges stemming from his 1989 arrests. She stated that she interviewed Lamb as part of her investigation and indicated that Lamb told her that he came to Monroe from Houston to sell drugs because Monroe had a more lucrative market. Lamb further told her that he was making about $7,000 per night in Monroe selling cocaine.
Based on this record evidence, we find that the state proved beyond a reasonable doubt that the cash seized from Lamb at the time of his arrests is derivative contraband and thus, subject to forfeiture.9 The money was found in very close proximity to the large amount of cocaine seized from Lamb‘s possession on two occasions. Lamb admitted to the sale of the drugs in pleading guilty to two counts of possession of cocaine with intent to distribute, in at least one statement to the police, and in his PSI interview. Indeed, Lamb‘s accomplice confirmed during the second arrest that they had come from Houston to sell cocaine. Additionally, the amount, denominations, and extent of the packaging of the seized money were consistent with cash derived from drug sales. Simply put, Lamb‘s assignment lacks merit.
CONCLUSION
For the reasons assigned, the forfeiture judgment of the trial court is affirmed. Costs of appeal are assessed against Claude Lamb to the extent permissible by law.
AFFIRMED.