State v. ToupsState v. Toups
Kevin V. Boshea, Williams Boshea & Ehle, L.L.C., New Orleans, Counsel for Defendant/Appellant.
BAGNERIS, Judge.
STATEMENT OF THE CASE
Defendant Mary L. Toups, aka Mary Billiot (“the defendant“), was charged by bill of information on December 7, 1999, with possession of cocaine, a violation of
FACTS
New Orleans Police Officer Dennis Bush testified that on the evening of October 18, 1999, he and five other officers executed a search warrant at a residence located at 633 N. Scott Street. They were in search of a male known as “Stan.” After receiving no response at the front door, Officer Bush entered the “shotgun” residence. Officer Bush testified that the defendant and Stanley Williams (“Williams“) were found seated on a sofa in the front living room, facing each other. In another room, police found an elderly male connected to some type of respirator. He was the only other person found in the residence. Two pieces of crack cocaine, three clear glass crack
New Orleans Police Detective Jeff Keating observed the defendant and Stanley Williams seated on a sofa when he entered the residence. He confirmed that three crack pipes and two rocks of crack cocaine were seized from the coffee table. Detective Keating said he also seized a plastic container containing sixteen pieces of crack cocaine that was next to Williams, although it was not in “plain view.” Three hundred and four dollars was also seized from the same area.
Corey Hall, employed by the New Orleans Police Department Crime Lab, was qualified by stipulation as an expert in the analysis of controlled dangerous substances, specifically cocaine. He tested two pieces of a rock-like substance and three glass tubes related to the defendant‘s case, and he said that all were positive for cocaine. He also stated that seventeen pieces of rock-like substance in a plastic container tested positive for cocaine, as did a metal tube. Mr. Hall acknowledged on cross examination that it did not appear from a document presented to him by defense counsel that any of the items had been submitted for fingerprint identification.
ERRORS PATENT
A review of the record reveals no errors patent.
ASSIGNMENT OF ERROR NUMBER ONE
In her first assignment of error, the defendant claims that the evidence is insufficient to support her conviction.
This court set forth the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 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 fact 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 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 (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).
98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.
The defendant was convicted of possession of cocaine, a violation of
The defendant cites State v. Bell, 566 So.2d 959 (La.1990), where police approached a vehicle to request that the occupants, the driver and his passenger, turn down music blaring from the radio. One officer noticed a distinctively wrapped package, containing what was later determined
In State v. Jackson, 557 So.2d 1034 (La. App. 4 Cir.1990), an individual named Steele threw down drugs at the sight of police, and ran into his apartment. Police followed, and saw the defendant Jackson standing at homemade bar on which were displayed a glass pipe with cocaine residue, another pipe, a mirror with trace amounts of cocaine on it, a razor blade with traces of cocaine on it, test tubes, glasses, and a bag containing a material used to cut or dilute cocaine. This court held that because there was no indication that the residue-containing pipe was warm, that the defendant‘s fingerprints were on any of the items, that the defendant [her blood] tested positive for the presence of cocaine, or that the defendant was anything more than a guest in the apartment, the evidence was insufficient to establish that the defendant exercised dominion and control over the objects which had cocaine residue in or on them.
In State v. Harris, 585 So.2d 649 (La. App. 4 Cir.1991), police executing a search warrant at an apartment rented by the defendant‘s brother found the defendant and another individual seated at a kitchen table on top of which were a plastic bag of cocaine, a cigarette pack containing fifty-two marijuana cigarettes, two plates with cocaine residue on them, a scale, some cash, and several other items which an expert testified were used to free-base cocaine. The defendant‘s brother was standing at the kitchen sink free-basing cocaine. This court found that the evidence was sufficient to support a finding that the defendant possessed the cocaine and marijuana.
In State v. Kingsmill, 514 So.2d 599 (La.App. 4 Cir.1987), police stopped a vehicle containing four men, and the front seat passenger stepped out and dropped a marijuana cigarette. A large plastic bag containing marijuana was found on the front floorboard near the passenger seat. All four men were arrested for possession of marijuana. During a subsequent search of the vehicle, an open cardboard box was found in the middle of the rear seat, containing a scale and some other drug paraphernalia, as well as a plastic bag with two smaller bags of cocaine inside. The four men were then arrested for possession of cocaine. Police testified that one defendant informed them that all four had pooled their money to purchase the marijuana and cocaine. This court found that the evidence was sufficient to support a finding that the two defendants appealing their convictions for possession of cocaine, the front seat passenger and one rear seat passenger, had exerted dominion and control over the cocaine.
In the instant case, it is undisputed that the target of the narcotics investigation was Stanley Williams, the known resident of the premises. Williams was the
There is merit to this assignment of error. Consequently, the defendant‘s conviction and sentence are hereby vacated.
ASSIGNMENT OF ERROR NUMBER TWO
We pretermit any discussion regarding this assignment of error, as it is rendered moot by our discussion of assignment of error number one.
ASSIGNMENT OF ERROR NUMBERS THREE AND FOUR
We pretermit any discussion regarding these assignments of error, as it is rendered moot by our discussion of assignment of error number one.
CONCLUSION
For the foregoing reasons, the defendant‘s conviction and sentence are hereby vacated.
REVERSED; CONVICTION AND SENTENCE VACATED.