State v. LongState v. Long
Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, Counsel for Defendant/Appellant.
ARMSTRONG, Judge.
STATEMENT OF THE CASE
On August 21, 1996, the defendant, John Long, was charged by bill information with distribution of crack cocaine, a violation of
FACTS
New Orleans Police Officer Landries Jackson testified that, on July 1, 1996, he and other officers conducted a “buy/bust” narcotics operation, where an undercover officer purchases narcotics from unsuspecting drug dealers who are immediately thereafter arrested by other officers. Officer Jackson was a member of the backup team, parked in the 4500 block of America Street, around the corner from the targeted location, the 4500 bloсk of Dale Street. He said he observed the defendant in the rear of the undercover officer‘s pickup truck. Officer Jackson said he was normally in audio communication with the undercover officer, but said he did not hear everything that day. The undercover officer notified Officer Jackson and his partner, Det. Othello Thomas, when the transaction was completed, and the officer directed them to the subjects involved in the sale, the defendant and Edgar Martin. He said they got to the defendant and Martin within twenty-five seconds after receiving the go signal. The defendant was walking dоwn Dale Street, and Martin was riding on a bicycle near him. Officer Jackson said the defendant and Martin were the only civilians in that block. Officer Jackson arrested Martin, and recovered four bags of marijuana and some currency from his person.
On cross-examination, Officer Jackson admitted that he erroneously stated in his report of the incident that nine dollars were recovered from the defendant, and that four bags of marijuana were seized from him. He said he found no contraband or money on the defendant. Officer Jackson said this operation was equipped with а video camera, but he did not know whether this particular transaction had been videotaped. He said the serial numbers of currency used to purchase narcotics in these types of operations are usually recorded so that when seized from the suspect it can be used as evidence, but that none of the recorded currency used for these two purchases was recovered from the defendant.
New Orleans Police Officer Tremaine Johnson testified that on July 1, 1996 he participated with other officers in a “buy/ bust” operation, acting as the “spotter,” who maintains visual and audio contact with the undercover officer as that officer is approached by street level narcotics dealers. He said the spotter officer also keeps visual contact with the dealer after the transaction is completed. Officer Johnson said he observed Det. Duplantier, the undercover officer, drive to the 4500 block of Dale Street, where he was approached by the defendant. He heard
On cross-examination, Officer Johnson testified that he was approximately twenty yards behind Det. Duplantier on Dale Street. He said the defendant was down on one knee when Det. Duplantier pulled up, but that he jumped up and ran to the officer‘s truck. Officer Johnson said he followed Det. Duplantier‘s truck when it went around the corner to America Street. Officer Johnson said he could see the residence the defendant went to after leaving the truck to get the cocaine. He said it took no more than thirty seconds from the time the undercover officer left the scene to the time when Officers Jackson and Thomas made the arrests. He said the defendant and Martin stood in the street until Jackson and Thomas made the corner, then the subjects started to move, before being stopped and arrested.
New Orleans Police Officer Othello Thomas testified that, after he and Officer Thomas had apprehended the defendant and Martin, Det. Duplantier positively identified both subjects. On cross-examination, Officer Thomаs stated that “buy money,” currency which has been photographed or copied, or had the serial numbers recorded, was used in this case. He said none of that currency was recovered from the defendant.
Detective David Duplantier testified that on July 1, 1996 he was working undercover purchasing narcotics. He drove to the 4500 block of Dale Street, where he observed defendant crouched down on a corner. As he approached, the defendant stood up, flagged him down, and asked him what he was looking for. Det. Duplantier said he wanted a twenty-dollar piece of crack cocaine. The defendant tried to get in the front of his truck, whereupon Det. Duplantier advised him to get into the back because the door was broken. The defendant got into the back of the truck and instructed him to drive around the corner. As they pulled off, the defendant stuck his hand into the window, shook the officer‘s hand, and introduced himself as John. The defendant directed the officer around the corner to the 4500 block of America Street. There, he gave a twenty-dollar bill to the defendant, who went across the street to a house that had
Det. Duplantier said he was wearing an audio microphone so he could be monitored by Officers Johnson, Jackson and Thomas. He also said the vehicle he was driving was equipped with a video camera and recorder, but that he apparently had not turned it on. While driving away from the scene, Det. Duplantier gave a description and a location of the defendant and Martin to other officers. After the two men were apprehended, he made a return pass and confirmed their identification. Det. Duplantier identified the cocaine and marijuana he purchased from the defendant.
On cross-examination Det. Duplantier admitted that after being flagged down, or waived over, by defendant, he might have spoken first, asking defendant, “What do you got?” He said he paid for the marijuana with the second of the twenty-dollar bills he had been provided with, which had been copied at the office. He said he never saw either of the twenty-dollar bills again after giving them to the defendant.
It was stipulated that if New Orleans Police Department Criminalist John Palm were called as a witness he would testify that the “rock” identified by Det. Duplantier tested positive for cocaine, and the green vegetable matter tested positive for marijuana.
ERRORS PATENT
A review of the record reveals no errors patent.
ASSIGNMENT OF ERROR NO. 1
In this assignment of error, the defendant claims the evidence is insufficient to sustain his conviction for distribution of marijuana.
This court set out the standard for reviewing convictions for sufficiency of the evidence in State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, as follows:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of act could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier‘s view of all the evidence most favorable to the prosecution must be adopted. The fact finder‘s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the
weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidеnce must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded.
La. R.S. 15:438 . This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).
97-0318 at pp. 5-6, 703 So.2d at 227-28.
In this assignment of error, appellate counsel, who was not the defendant‘s trial counsel, first argues that the evidence was insufficient to support defendant‘s conviction for distribution of marijuana based on the erroneous assumption that the marijuana was transferred to Det. Duplantier by Edgar Martin, not defendant. In appellate counsel‘s statement of facts she asserts that Martin sold the marijuana to Det. Duplantier. She begins her argument by stating that “delivery and distribution requires more than pointing to a possible seller.” Appellate counsel later states: “Martin completed his distribution of marijuana by making the deal with the officer, independent of any participation by the defendant other than being pointed out as a seller.”
Det. Duplantier testified as follows regarding the defendant‘s actions after he sold the officer cocaine:
He then instructed me to drive back to where I picked him up at [sic] which I did. Upon reaching that location he got out of the truck, he went to shake my hand and I asked if there was anything I could twist this up with for instance marijuana. At that time the subject was [sic] later identified as Edgar Morris. He was approaching us on a bike in the street in the 4500 block of Dale, and he pointed to him and said, “That‘s the man right there.” He stopped the guy and talked with him then approached me and brought back a small bag of marijuana and said, “This is a dime.” I said, “Well, all I have is a twenty.” I said, “Well, give me another dime then.” He went back and came back with two bags and we made the exchange and I drove out of the area.
Officer Johnson, who watched both sales, testified as to the marijuana sale:
Detective Duplantier then asked him, “Where can I get something to go with this,” meaning the marijuana. He said, “Okay, here‘s the man right here.” Then the defendant pointed to another subject that was riding a bicycle. He went over to the subject, they had a brief conversation, he handed the marijuana back to the defendant, he made the sale, handed it to the detective аnd left the area. After the detective left the area I directed the take down scene to the defendant and the other subject that he had gotten the marijuana from.
Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant distributed-delivered by physically transferring possession-marijuana to Det. Duplantier. Therefore, there is no merit to defendant‘s argument that the evidence was insufficient to convict him of distribution of marijuana on the ground that all he did was to point Martin out to Dеt. Duplantier as someone from whom the officer could purchase marijuana.
The defendant next argues that the evidence was insufficient to sustain his conviction because he was entrapped.
The defense of entrapment was discussed at length by the Supreme Court in State v. Brand, 520 So.2d 114 (La.1988), as follows:
Entrapment is a defense which arises when a law enforcement official or an undercover agent acting in cooperation with such an official, for the purpose of obtaining evidence of a crime, originates the idea of the crime and then induces another person to engage in conduct constituting the crime, when the other person is not otherwise disposed to do so. The defense is designed to deter the police from implanting criminal ideas in innocent minds and thereby promoting crimes which would not otherwise have been committed. Obviously, law enforcement agents should not persuade citizens to commit crimes, and the defense is recognized to prevent shocking police inducement of the perpetration of a crime.
Entrapment is an affirmative defense. Thus, the burden was on defendant to prove entrapment by a preponderance of the evidence. The question whether the government agent implanted the criminal idea in the mind of an innocent person to induce the commission of a crime that would not otherwise be committed is one for the jury.
The entrapment defense will not be recognized when the law enforcement official merely furnishes the accused with an opportunity to commit a crime to which he is predisposed. In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. Thus, the focus in determining an entraрment defense is on the conduct and predisposition of the defendant, as well as the conduct of the government agent. (Citations omitted).
Contentions of entrapment are reviewed on appeal pursuant to the sufficiency of evidence standard of Jackson v. Virginia, supra. State v. Hardy, 98-25, p. 9 (La.App. 5th Cir. 5/13/98), 715 So.2d 466, 471. A reviewing court must
The entrapment defense is composed of two elements: (1) an inducement by a state agent to commit an offense; and (2) lack of predisposition to commit the offense on the part of the defendant. State v. Francis, 98 811 (La.App. 5 Cir. 1/26/99), 727 So.2d 1235, 1238; State v. Hardy, supra.
In the instant case, Det. Duplantier testified that defendant was in a crouched down position and stood up to flag him down as he slowly drove down Dale Street. While Det. Duplantier admitted he spoke to defendant first, asking him “What do you got?“, it was defendant who waived Det. Duplantier to a stop and approached him. Defendant did not ask Det. Duplantier for anything, and did nothing to indicate that he waived the officer over for any reason other than to see if Det. Duplantier wanted anything from him. Defendant eagerly obtained cocaine for Det. Duplantier, shaking his hand and introducing himself to the officer. Similarly, when Det. Duplantier asked defendant if he knew where he could get any marijuana, defendant, without hesitation, obtained marijuana from Martin and sold it to the officer. Defendant has not proved by a preponderance of the evidence that he was induced to obtain the marijuana for Det. Duplantier. However, even assuming there was some inducement, the evidence clearly shows that defendant was predisposed to commit both crimes. Thus, there was no entrapment.
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 2
In this assignment of error, defendant claims his sentence as a habitual offender is unconstitutionally excessive: (1) because
The defendant was sentenced to life imprisonment pursuant to
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.
The defendant received an enhanced sentence pursuant to
The defendant argues that this statutory provision is unconstitutional in that it punishes drug addiction, i.e., “defendants who, like John Long, are addicted to cocaine and all other controlled substances other than marijuana, in violation of the Eighth Amendment to the United States Constitution and the
The defendant‘s argument fails because the record is devoid of any evidence that defendant is an addicted drug offender. While one of the defendant‘s prior convictions was fоr possession of cocaine, another was for distribution of false drugs. His third felony conviction was for distribution of cocaine, and he was convicted for that offense along with being convicted for distribution of marijuana. Thus, of the defendant‘s four drug convictions reflected by the record, three were for distribution. While the defendant avers that his conviction for small-time drug distribution offenses goes hand in hand with his drug addiction and is evidence of that addiction, the record furnishes no basis for such a conclusion.
The defendant next argues that the sentence is unconstitutionally excessive as applied to him. Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906 at pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527, writ denied, (La. 3/22/96), 669 So.2d 1223. There must be substantial evidence to rebut thе presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461, writ denied, 98-2360 (La.2/5/99), 737 So.2d 741. A defendant must clearly and convincingly show that the mandatory minimum sentence under the Habitual Offender Law is unconstitutionally excessive. Johnson, 97-1906 at p. 11, 709 So.2d at 678.
In a recent decision by this court, State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, this court vacated the life sentence of a fourth felony habitual offender sentenced pursuant to
The defendant in Burns was observed by police selling one rock of crack cocaine to a third person. When arrested, the defendant was in possession of two more rocks and fifty-seven dollars. Defendant testified at trial that he was addicted to cocaine. Noting that two of defendant‘s prior convictions were for possession of cocaine, this court concluded, “thus it is safe to assume he deals to support his habit,” 97-1553 at p. 9, 723 So.2d at 1019. The defendant was twenty-five years old-this court felt that the defendant was “young enough to be rehabilitatеd,” and noted that a sentence less than life would “afford him the opportunity to partake in self-improvement classes while incarcerated and the possibility of a productive future.” Id. The defendant‘s father testified at trial, stating that the defendant was well liked in the community and would go out of his way to help anyone. Though recognizing that the fact that none of the defendant‘s felonies were non-violent alone
In State v. Finch, 97-2060 (La.App. 4 Cir. 2/24/99), 730 So.2d 1020, this court declined to extend Burns to a case where there was no evidence that the defendant was driven by his addiction to sell drugs to support his drug habit, and the record was devoid of any testimony suggesting that the defendant might possess any redeeming virtues. This court stated:
Where a minimum sentence does not transcend constitutional limits, it may not be reformed by this Court merely because it seems harsh. This Court does not have the authority to second guess the lеgislature concerning the wisdom of minimum sentencing on any ground other than that of constitutional excessiveness.
97-2060 at p. 13, 730 So.2d at 1027.
In the instant case, the defendant turned thirty years old on the day he was arrested for the instant offenses. He was convicted of selling one twenty-dollar rock of crack cocaine and two ten-dollar bags of marijuana to an undercover police officer. The defendant either sold the drugs for other persons, or other persons held his drugs and money for him. While the defendant had one prior conviction for possession of cocaine, as previоusly discussed, as in Finch, the record contains nothing from which it can be concluded that defendant was an addict selling drugs to support his habit. The defendant did not testify at trial, and did not make any statements prior to sentencing. No one testified on the defendant‘s behalf at trial or at his sentencing. There apparently was no presentence investigation performed. As in Finch, the record is devoid of any testimony suggesting what, if any, redeeming virtues defendant might possess.
Under these circumstances, it cannot be said that the defendant has presented substantial evidence to show by clear and cоnvincing evidence that his sentence is unconstitutionally excessive as required by Johnson, supra.
There is no merit to this assignment of error.
For the foregoing reasons, the defendant‘s convictions and sentences are affirmed.
AFFIRMED.
JOAN BERNARD ARMSTRONG
JUDGE