State v. ToneyState v. Toney
STATEMENT OF CASE
On May 6, 1998, the defendant, Kentrail Toney, was charged by bill of information with possession of a firearm by a convicted felon in violation of
The defendant now appeals raising four assignments of error.
STATEMENT OF FACT
The record reflects that on March 5, 1998, Agent Craig LaBorde, a warrant officer
Agent Warren Peters, a probation and parole officer, was also involved in the defendant‘s apprehension pursuant to the arrest warrant. While en route to the defendant‘s mother‘s house, the officer learned that the defendant was at his aunt‘s house. The officer then relocated to the defendant‘s aunt‘s house. Agent Piles did not enter the house or participate in the defendant‘s arrest. After the defendant was arrested, he was placed in police vehicle. Agent LaBorde came out of the aunt‘s house with a magazine for a rifle that had several live rounds in it. LaBorde asked the defendant about the location of a rifle. The defendant denied any knowledge about a rifle, but stated that “the drugs and gun” belonged to him.
On March 5, 1998, New Orleans Police Officer Robert Fulton was driving towards the Melpomme Housing Development when the defendant‘s mother flagged him down. She told the officer that there was an arrest warrant for her son and she wanted to turn her son into Officer Fulton. The defendant‘s mother stated that the defendant was presently at his aunt‘s house on South Dupre. Officer Fulton saw the probation officers and other police officers on their way to the defendant‘s mother‘s house. He contacted them via police radio and informed them that the defendant was at a residence on South Dupre. Officer Fulton then proceeded to South Dupre. When he arrived at the residence, the defendant‘s aunt allowed him and Agent LaBorde into the residence. After entering the residence, Officer Fulton yelled for the defendant to appear and place his hands on the wall. The defendant complied with the officer‘s request. Agent LaBorde advised the defendant he was under arrest. Officer Fulton searched the defendant and found a syringe with residue and two hundred dollars in the defendant‘s pants pocket. The defendant was arrested for possession of drug paraphernalia and advised of his
New Orleans Police Officer John Palm, a criminalist with the Crime Lab, testified that he examined and tested the substances found on the defendant and in the bedroom. Officer Palm stated that the syringe and the ten packets of white substance tested positive for heroin.
ERRORS PATENT
Our review of the record reveals one error patent. The trial court imposed an illegally lenient sentence on the defendant‘s conviction for possession of a firearm by a convicted felon.
ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, the defendant contends that the trial court erred when it denied his motion to suppress the statement he made about the drugs and weapon.
The State has the burden of proving that a statement given by a defendant was freely and voluntarily given, not the product of threats, promises, coercion, intimidation, or physical abuse. State v. Seward, 509 So.2d 413 (La.1987); State v. Brooks, 505 So.2d 714 (La.), cert. den., Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Daliet, 557 So.2d 283 (La.App. 4th Cir. 1990). To establish the admissibility of a statement made by an accused person during custodial interrogation, the State must prove that the accused had been advised of his/her Miranda rights and that he/she waived these rights prior to interrogation. Brooks; Daliet. The determination of a statement‘s admissibility is within a trial court‘s discretion, and it should not be disturbed unless it is not supported by the evidence. Brooks; Daliet.
When the free and voluntary nature of a confession is challenged on the ground that the defendant was intoxicated at the time of the confession, the confession will be admissible only when the intoxication is of such a degree as to negate the defendant‘s comprehension and to make him unconscious of the consequences of what he is saying. Whether intoxication exists and is sufficient to vitiate the voluntariness of a confession are questions of fact, and the trial court‘s ruling on this issue will not be disturbed unless unsupported by the evidence. State v. Williams, 602 So.2d 318 (La.App. 1 Cir. 1992), writ denied, 605 So.2d 1125 (La.1992).
In the case at bar, the defendant argues that he was not able to voluntarily waive his rights as he was intoxicated from the heroin he had recently ingested. The defendant relies upon a statement made by Officer Fulton at the suppression hearing. Officer Fulton testified that the defendant said “he had just done a couple bags of
The evidence presented at the suppression hearing and at trial was insufficient to prove that the defendant‘s alleged intoxication was sufficient to vitiate the voluntariness of his statement. The trial court did not err when it denied the defendant‘s motion to suppress the statement. This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 2
The defendant also argues that the trial court erred when it denied his motion to suppress evidence, namely the handgun and ten foil packets of heroin found in the bedroom closet.
Generally, searches and seizures made without a warrant issued on prior approval by a judge or magistrate are per se unreasonable and violative of a citizen‘s rights under the Fourth Amendment to the U.S. Constitution and
In the present case, Officer Fulton and Agent LaBorde testified that the defendant‘s aunt, the owner of the residence, gave them permission to enter and search the house for the defendant. There is nothing in the trial and suppression hearing transcripts to suggest that the defendant‘s aunt granted the officers permission to search for anything else. Thus, the State failed in its burden to prove that the officers had the owner‘s consent to search the bedroom. However, Agent LaBorde testified that the defendant‘s mother informed him that the defendant was armed with a gun. The officers testified that the defendant was not armed when he was searched incident to
Furthermore, probationers and parolees have a reduced expectation of privacy which allows reasonable warrantless searches of their persons and residences by their probation or parole officer, even though less than probable cause may be shown. State v. Malone, 403 So.2d 1234 (La.1981). This reduced expectation of privacy evolves from a probationer‘s conviction and agreement to allow a probation officer to investigate his activities in order to confirm that the probationer is in compliance with the provisions of his probation. However, a probationer is not subject to the unrestrained power of the authorities. A search of the probationer may not be a subterfuge for a police investigation. A warrantless search of a probationer‘s property may be permissible when
[I]t is conducted when the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place. In determining the reasonableness of a warrantless search, [an appellate court] must consider (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.
State v. Malone, 403 So.2d at 1239. See also State v. Thomas, 96-2006 (La.App. 4 Cir. 11/06/96), 683 So.2d 885.
In the case at bar, the officers testified that they had an arrest warrant for the defendant. They were acting upon the arrest warrant when they searched the defendant‘s aunt‘s house and arrested him. The defendant was also on parole at that time for a prior conviction for possession of heroin. The defendant‘s mother told Agent LaBorde that the defendant had been armed with a weapon. When the officers did not have find a weapon on the defendant in search incident to his arrest, the officers had probable cause to search the bedroom in which the defendant was staying. When Agent LaBorde found a rifle magazine with live rounds in it, the officer asked the defendant about an assault rifle. The defendant replied that he did not know anything about an assault rifle, but the handgun and drugs belonged to him. This statement gave the officer cause to believe that a handgun and drugs were in the bedroom. Thus, Agent LaBorde was justified in continuing the search of the bedroom and extending the search into the bedroom closet where the guns and drugs were found.
Accordingly, we find no error in the trial courts ruling denying the defendant‘s motion to suppress evidence.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 3
The defendant further contends that the State failed to produce sufficient evidence to sustain his conviction for possession of heroin.
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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La. 1987).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances
To support a conviction for possession of narcotics, the State must prove that a defendant knowingly possessed narcotics. State v. Chambers, 563 So.2d 579, 580 (La.App. 4 Cir. 1990). The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. See State v. Trahan, 425 So.2d 1222, 1226 (La.1983); see also State v. Cann, 319 So.2d 396, 397 (La.1975). The mere presence of a defendant in the area where the narcotics were found is insufficient to prove constructive possession. State v. Collins, 584 So.2d 356 (La.App. 4 Cir. 1991).
A person not in physical possession of narcotics may have constructive possession when the drugs are under that person‘s dominion and control. State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir. 1990). A person may be deemed to be in joint possession of a drug which is in the physical possession of a companion if he willfully and knowingly shares with the other the right to control it. State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). Determination of whether a defendant had constructive possession depends on the circumstances of each case. Cann. Among the factors to consider in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are whether the defendant knew that illegal drugs were present in the area, the defendant‘s relationship with the person in actual possession of the drugs, whether there is evidence of recent drug use, the defendant‘s proximity to the drugs, and any evidence that the area is frequented by drug users. State v. Pollard, 93-1960 (La.App. 4 Cir. 7/14/96), 640 So.2d 882.
At trial, Agent LaBorde and Officer Fulton testified that after they arrested the defendant on the outstanding warrant, Agent LaBorde advised the defendant of his Miranda rights and performed a search of the defendant. Agent LaBorde found a syringe containing heroin residue in the defendant‘s pants pocket. The defendant was again arrested for possession of drug paraphernalia and possession of heroin. The defendant was advised of his Miranda rights again and placed in a police vehicle. The officers then conducted a search of the bedroom that the defendant had been occupying. Agent LaBorde found a rifle magazine containing live rounds. The officer asked the defendant if he knew the location of the assault rifle. The defendant stated that he did not know anything about an assault rifle. He went on to say that the handgun and heroin in the bedroom belonged to him. Agent LaBorde returned to the bedroom and continued the search. The officer found the handgun and ten foil packets of heroin in the bedroom closet. Officer John Palm, a criminalist with the Crime Lab, testified that the substance found in the syringe and the substance in the foil packet tested positive for heroin.
Such testimony was sufficient to prove, beyond a reasonable doubt, that the defendant was in possession of heroin. The
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 4
Lastly, the defendant suggests that the ten year sentence imposed under the multiple offender statute was unconstitutionally excessive. After the defendant was found guilty of possession of heroin, the State filed a multiple bill of information alleging the defendant was a second felony offender. The defendant pled guilty to the multiple bill and was sentenced to ten years at hard labor without benefit of probation or suspension of sentence.
Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive or unusual punishment.”
A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Caston, 477 So.2d 868 (La. App. 4 Cir. 10/11/85). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in
If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, supra; State v. Guajardo, 428 So.2d 468 (La.1983).
Prior to sentencing the defendant as a second felony offender, the trial court noted that the defendant had two other convictions arising from the same incident in which he was charged and convicted of the present offense. After the defendant was convicted of possession of heroin, he pled guilty to being a convicted felon in possession of a weapon and possession of cocaine. The court also recognized that the prior offense alleged in the multiple bill of information was a conviction for possession of heroin in March of 1994. Thus, at the time of sentencing, the defendant had four felony convictions. In addition, the trial testimony indicates that the defendant was being arrested for another felony offense at the time the officers found the heroin and cocaine on the defendant. There is no indication in the record as to the disposition of that charge. In light of the defendant‘s four felony convictions, the trial court did not impose an unconstitutionally excessive sentence. The mid-range sentence of ten years at hard labor without benefit of probation or suspension of sentence was appropriate given the facts and circumstances of the defendant‘s case.
This assignment is without merit.
CONCLUSION
For the foregoing reasons, the defendant‘s conviction and sentence are affirmed.