State v. McKinneyState v. McKinney
After a jury convicted Harry McKinney, as charged, with distribution of cocaine,
FACTS
On January 12, 1997, after Deputy Roland Barton of the Grant Parish Sheriff‘s Office caught Troyce Gibbs with drug paraphernalia, Gibbs sought to “cut a deal” to get out of trouble by assisting Deputy Brad Sudduth make a controlled buy from a known drug dealer, Johnny Ray Anderson.
Sudduth and Deputy Stanley Martin placed a wire on Gibbs who was also supplied $100 to make the buy. Martin and another deputy followed Gibbs and Sudduth, who were traveling in Gibbs’ truck, to Anderson‘s trailer in St. Maurice, Louisiana, sometime between 3:30 and 4:00 a.m. Sudduth allowed Gibbs to drive, despite knowing that he had been smoking crack cocaine that night.
SUFFICIENCY OF THE EVIDENCE
McKinney argues that the evidence presented at trial is insufficient to support his conviction for distribution of cocaine because the state failed to identify him as the distributor.
A claim of insufficient evidence is better addressed by a motion for post-verdict judgment of acquittal filed in the trial court. See
In this instance, our review discloses adequate support for the conviction. The criteria for evaluating sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). That standard, initially enunciated in Jackson and now legislatively embodied within
When the defendant claims that he is not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof, State v. Powell, 27,959 (La.App.2d Cir.04/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.02/21/97), 688 So.2d 520, and positive identification by only one witness may be sufficient to support a defendant‘s conviction. State v. Davis, 27,961 (La.App. 2d Cir.04/08/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990). It is the function of the jury and not that of the appellate court to assess the credibility of witnesses. State v. Miller, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness‘s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Carey, 628 So.2d 27 (La.App. 2d Cir.1993), writ denied, 94-0018 (La.03/25/94), 635 So.2d 236.
A defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipients. State v. Cummings, 95-1377 (La. 02/28/96), 668 So.2d 1132. The state must show (1) “delivery” or “physical transfer;” (2) guilty knowledge of the controlled dangerous substance at the time of the transfer; and (3) the exact identity of the controlled dangerous substance. State v. Anderson, 29,282 (La. App.2d Cir. 06/18/97), 697 So.2d 651.
Specifically, defendant argues that the state did not prove beyond a reasonable doubt that he was the person involved in the drug transaction because it occurred in the early morning hours, Gibbs had never met the defendant prior to this occasion and Sudduth did not see the transaction. We disagree.
Although Sudduth testified that he did not see the actual transaction, he recognized the defendant as “Harry McKinney,” and knew him because the two men are from the same town. Moreover, Gibbs identified defendant as the person from whom he purchased the crack cocaine. Viewing this evidence in the light most favorable to the prosecution, the evidence adequately supports the verdict and was sufficient to negate any reasonable probability of misidentification. The assignment of error is without merit.
McKinney also claims that the trial court erred in denying a motion for mistrial on the grounds that a state witness improperly referred to other crimes evidence.
As the state sought to establish a positive identification of the defendant as the drug seller, Deputy Sudduth first testified that he knew defendant because they lived in the same town but then added that he had previously arrested defendant. He later testified that he had seen the defendant numerous times. The court denied defendant‘s motion for mistrial based upon the arrest statement, finding it to have been an “inadvertent ... unnecessary response” by the witness. Thereafter, defense counsel refused an admonition offered by the court.
Defendant contends that because the state “conditioned” Sudduth‘s response by earlier questioning him regarding his arrest of Gibbs, he is entitled to a mandatory mistrial under
Mistrial is a drastic remedy which is warranted only when substantial prejudice would otherwise result to the accused. State v. Morvan, 31,511 (La.App.2d Cir.12/09/98), 725 So.2d 515; State v. Harris, 28,517 (La. App.2d Cir. 08/21/96), 679 So.2d 549, writ denied, 96-2954 (La.09/26/97), 701 So.2d 975. A police officer‘s unsolicited, unresponsive reference to another crime alleged to have been committed by a defendant is not the comment of a court official under
We are unpersuaded by defendant‘s argument regarding his entitlement to a mandatory mistrial under the provisions of
Rather,
The record fails to support defendant‘s contention that Sudduth‘s statement regarding his previous arrest of McKinney, combined with his responses to questions regarding how many times he had seen defendant, suggested to the jury that he had
EXCESSIVE SENTENCE
In his final two assignments of error, McKinney argues that the trial court erred in imposing more than the minimum sentence of five years at hard labor and failed to state adequate reasons for the sentence imposed. Specifically, defendant contends that the trial court failed to consider his status as a first felony offender, his distribution of only two rocks of cocaine for $100, and that he is the father of six children, all under the age of thirteen.
In reviewing excessive sentence assertions, an appellate court utilizes a two-step process. First, the record must show adequate consideration of the criteria set forth in
The second inquiry concerns whether the incarceration is too severe, considering the circumstances of the case and the background of the defendant. A sentence violates
We find adequate 894.1 compliance. The court considered the pre-sentence investigation report which contained McKinney‘s personal history, including his fourteen-year marriage and his status as the father of six children. The court also noted the lack of a disposition on each of defendant‘s multiple arrests, his family situation, good health, and service of six months jail time on this serious offense.
Nor do we find the sentence excessive. Defendant faced penalty exposure at hard labor for not less than five years nor more than thirty years and a possible fine not exceeding $50,000.
CONCLUSION
For the foregoing reasons, defendant‘s conviction and sentence are affirmed.
AFFIRMED.