State v. McMooainState v. McMooain
TANNER, Judge Pro Tempore.
Defendant, Tracy McMooain, was charged with possession of a controlled dangerous substance as classified in Schedule II [cocaine], a violation of
Defendant was charged on February 5, 1992, and likewise pled guilty tо, possession of drug paraphernalia, a violation of
On October 2, 1994, defendant filed a motion to quash in the prosecution for possession of cоcaine based on double jeopardy grounds; that motion was denied on April 18, 1995, and a timely appeal followed. Defendant raises as his sole assignment of error the trial court‘s failure to grant the motion to quash based on double jeopardy.
FACTS
Defendant was stopped on February 5, 1992 in Slidell for a traffic offense. Aftеr a search of his person, a crack cocaine pipe was found, and he was arrested. Analysis of the residue in the crack pipe revealed the presence of cocaine.4 This information was forwarded to the Slidell City Police, and a warrant was issued on June 15, 1992, for the arrest of defendant for possession of cocaine,
DOUBLE JEOPARDY
The Double Jeopardy Clause of the Federal Constitution‘s Fifth Amendment, applicable to the states through its Fourteenth Amendment, provides that no person shall “be subject for the same offenses to be twice put in jeopardy of life or limb.”
The test formulated in the federal system is constitutionally required of the states; that test was articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
The applicable rule is that, where the same act or transaction 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 рroof of an additional fact which the other does not.
As described in State v. Doughty, supra, the Blockburger test depends on the evidence required to convict, not the evidence introduced at trial. Doughty, 379 So.2d at 1090.
This test, called the “same evidence” test, is somewhat broader in concept than Blockburger, and is articulated as follows in State v. Steele, 387 So.2d 1175, 1177 (La. 1980):
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
The Louisiana Supreme Court recognizes these two separate tests, but in recent years has principally relied on the “same evidence” test when evaluating double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990).
In order to analyze the facts of the instant case under either the Blockburger or the “same evidence” tests, we must first examine the statutory scheme for possession of drug paraphеrnalia,
(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.
C. It is unlawful for any person to use, or to possess with intent to use, any drug paraphernalia, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Part.
Therefore, the determination that the pipe found on defendant‘s person was in fact drug paraphernalia could have been made through evidence of cocainе residue on the pipe itself. We believe proof of intent to use, required under
Following Fontenot, courts have held that conviction for possession of controlled dangerous substances may rest on the possession of mere traces or residue of the
We agree with defendant that the pipe and its contents were the sole evidence of both possession of cocaine and of possession of drug paraphernalia. However, we do not believe that the facts of this case violate the constitutional prohibition against double jeopardy under a Blockburger analysis. Although proof that the cocaine pipe was actually drug paraphernalia may be made through the residue of crack cocaine found in it, proof of an additional fact not rеquired under
However, under the Louisiana “same evidence” test, clearly the crack cocaine pipe and the residue of crack cocaine found in it would have been sufficient to convict of either offense. State v. Steele, 387 So.2d 1175 (La.1980); State v. Doughty, 379 So.2d 1088 (La.1980). To prove possession of drug paraphernalia, the state had to prove intent to use. The presence of the residual crack cocaine served to prove both that defendant intended to possess drug paraphernalia and that the piрe was actually drug paraphernalia. Likewise, under the cases we have cited, the element of intention to possess cocaine could be proved by the presence of the residual crack cocaine.
Although additional factors could have been used to prove that the pipе was in fact drug paraphernalia, in this case no other evidence was necessary. The state argues defendant‘s plea of guilty to possession of drug paraphernalia would have sufficed to prove that charge, as a “statement by an owner concerning its use” under
The procedure for remedying a viоlation of double jeopardy is to vacate the conviction and sentence of the less severely punishable offense, and affirm the conviction and sentence of the more severely punishable. State ex rel. Adams v. Butler, 558 So.2d 552, 553-554 (La.1990). Here, defendant has already served a sentence for possession of drug paraphernaliа, and the prosecution unconstitutionally has proceeded against him twice for the same offense. Therefore, we must vacate the conviction and sentence imposed upon defendant for possession of cocaine under
We note that defendant complains of a patent error violation in that he was not given credit for time served under
CONVICTION AND SENTENCE VACATED; CASE REMANDED WITH ORDER.
LeBLANC, J. concurs.
SHORTESS, J., concurs with reasons.
The lead opinion concludes the State violated the Double Jeopardy Clause principle because the drug pipe seized from defеndant‘s initial February 6, 1992, arrest for possession of drug paraphernalia (
“[D]efendant‘s plea of guilty to one count of drug paraphernalia is a sufficient determining factor authorizing the court to conclude that the crack pipe ... is ... drug paraphernalia. The State need not prove at trial that cocaine was present in order to prove its case against defendant.”
However, the record does not contain conclusive evidence regarding whether defendant entered an Alford plea or whether the State had other substantive, credible evidence available to convict defendant under
This defendant‘s liberty has been placed in jeopardy twice. The first time was for the possession of drug paraphernalia charge where the Slidell City Court imposed a sentence and which defendant served. As far as we know, the drug pipe was the sole evidence available to convict him of this charge. The second time occurred when the State charged him with cocaine possession based on the cocaine residue found in the pipe. The State could not convict defеndant of illegal possession of cocaine without the cocaine pipe.
The State‘s opposition motion to defendant‘s motion to quash also argues that “[I]f the crack pipe were located in one pocket, and the crack cocaine in another pocket, the evidenсe and testimony required to convict... for possession of cocaine and possession of drug paraphernalia would be different at each trial.” But the cocaine in this case was not located in another pocket. It was located in the same pipe which was in evidence against defendant on February 6, 1992 when he pleaded guilty to possession of drug paraphernalia.
Furthermore, I am convinced fundamental fairness requires this Court to reverse defendant‘s
I respectfully concur.