State v. RodriguezState v. Rodriguez
Defendant, Antonio Rodriguez, appeals his conviction and sentence under
STATEMENT OF THE CASE
On 16 March 1998 Rodriguez was charged by bill of information of being a convicted felon in possession of a weapon in violation of
On 21 October 1999, Rodriguez filed a motion for a sanity hearing. Drs. Deland and Richoux were appointed by the trial court to examine Rodriguez. After a competency hearing, Rodriguez was found competent to proceed.
Rodriguez went to trial on the weapon charge on 25 January 2000. He was found guilty as charged. On 25 May 2000, the trial court sentenced Rodriguez to serve ten years at hard labor without benefit of probation, parole or suspension of sentence. The trial court also imposed a fine of one thousand dollars but suspended the fine.
STATEMENT OF FACTS
While patrolling the area of North Broad Street on 21 January 1998, New Orleans Police Officer Jose Torres observed a gold Volkswagen Jetta traveling west on North Broad Street. The vehicle had an expired temporary license plate. The officer turned on his vehicle‘s blue lights and siren and attempted to pull the vehicle over. The vehicle did not stop but continued on North Broad Street. The driver of the vehicle then turned right onto Laharpe Street. The vehicle continued down Laharpe Street and turned right onto Paul Morphy Street. Believing he was about to engage in a chase with the vehicle, Officer Torres advised the dispatcher that the vehicle was not stopping. The vehicle turned on to Lapeyrouse Street and then made another turn onto Broad Street. At that time, the vehicle stopped and Rodriguez, the passenger, exited the vehicle. Officer Torres pursued Rodriguez on foot. The officer followed the defendant, running down Broad Street. Officer Torres saw Rodriguez take something from his waistband and throw it in front of 1560 North Broad Street. The officer apprehended Rodriguez and returned to the area where Rodriguez had discarded the object. Officer Torres found a plastic bag and a chrome plated, fully loaded semiautomatic pistol on the ground. The bag contained narcotics. Officer Torres arrested Rodriguez.
Officer Terry Bunch of the Criminal Records and Latent Fingerprint Unit testified at trial that he fingerprinted Rodriguez the morning of trial. Rodriguez’ fingerprints matched the fingerprints on the arrest register and other documents
Rodriguez testified at trial that he was not in possession of a weapon or narcotics on the day of the incident. He also claimed that he was not the passenger in a gold Volkswagen Jetta. He stated he was traveling in a brown Celica. His friends, who were in a blue vehicle, were in front of him. Rodriguez testified that as he was crossing Broad Street, the police officer put on his lights. Rodriguez stated that he stopped his vehicle. The officer threw him to the ground when he got out of the vehicle and then went into four houses in the neighborhood before he came out with the gun and drugs. Rodriguez acknowledged prior convictions for illegal possession of a weapon, burglary and possession of cocaine.
ERRORS PATENT
A review of the record for errors patent reveals none.
ASSIGNMENT OF ERROR NUMBER 1
In Rodriguez’ first assignment of error, he argues that the trial court erred when it allowed the State to introduce other crimes evidence. The evidence about which Rodriguez complains is the testimony of Officer Torres that he saw Rodriguez throw down a plastic bag, which the officer later discovered, contained contraband. Rodriguez suggests that the testimony was irrelevant and improperly admitted.
Officer Torres’ testimony concerned the res gestae of the present offense. The officer testified at trial that Rodriguez took the weapon and bag from his waistband and dropped them at the same time. When the officer went to pick up the weapon and bag, he observed the contraband in the bag and that the gun was fully loaded.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 2
Rodriguez contends that the State failed to produce sufficient evidence to support his conviction for being a convicted felon in possession of a weapon.
When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817, 820 (La.1987).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence 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, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded.
In the present case, Officer Torres stated that, during his foot pursuit of Rodriguez, he saw Rodriguez take the weapon from his waistband and discard it in front of 1560 North Broad Street. After apprehending Rodriguez, Officer Torres retrieved the weapon. Officer Bunch, of the Criminal Records and Latent Fingerprint Unit, testified, after examining Rodriguez’ fingerprints and documents from a prior conviction, that Rodriguez was the same person convicted of possession of cocaine in 1991. Furthermore, during cross-examination, Rodriguez admitted a prior conviction for possession of cocaine. Such testimony was sufficient for the jury to conclude that Rodriguez was guilty, beyond a reasonable doubt, of being a convicted felon in possession of a weapon.
This assignment is without merit.
ASSIGNMENTS OF ERROR NUMBERS 3 AND 4
Rodriguez contends that the sentence imposed by the trial court was unconstitutionally excessive. A review of the record reveals that Rodriguez’ trial counsel neither filed a motion to reconsider the sentence nor objected to the sentence. Therefore, this issue has not been preserved for review on appeal.
Rodriguez argues that his trial counsel was ineffective in failing to file a motion to reconsider sentence or object to the sentencing. Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court, where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729, 736 (La.1984); State v. Johnson, 557 So.2d 1030, 1033 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278, 1280 (La. App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444, 448 (La.1983); State v. Ratcliff, 416 So.2d 528, 530 (La.1982); State v. Garland, 482 So.2d 133, 134 (La.App. 4 Cir. 1986); State v. Landry, 499 So.2d 1320, 1323 (La.App. 4 Cir.1986).
Rodriguez’ claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119, 125 (La.1984). The defendant must show that counsel‘s performance was deficient and that the deficiency prejudiced the defendant. Counsel‘s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 686, 104 S.Ct. at 2064. Counsel‘s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was
The court has recognized that if an alleged error falls “within the ambit of trial strategy,” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel‘s trial decisions. Neither may an attorney‘s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La. 1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
In order to determine whether counsel was ineffective for failing to file a motion to reconsider sentence, we must determine whether Rodriguez’ sentence was unconstitutionally excessive.
If adequate compliance with
In Rodriguez’ case, the trial court sentenced him to serve ten years at hard labor without benefit of probation, parole or suspension of sentence, the minimum sentence allowed under
Therefore, Rodriguez was not prejudiced by his counsel‘s failure to file a motion to reconsider sentence or object to the sentence at trial. These assignments are without merit.
CONCLUSION
Accordingly, Rodriguez’ conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED