State v. WellsState v. Wells
- Reporters:
- , ,
- Before:
- Edward A. Dufresne Jr., James L. Cannella, Susan M. Chehardy, Canenlla
Defendant, Tirrell Wells, appeals from his conviction of possession of cocaine with intent to distribute and his sentence, as a second offender, to 60 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction, set aside the sentence and remand for resentencing.
On February 28, 1996, the Defendant was charged by Bill of Information with possession with intent to distribute cocaine, in violation of
The Defendant went to trial on October 2, 1997. The facts surrounding the Defendant‘s arrest, as testified to at trial, are as follows. Narcotics Agent Todd Vignes of the Jefferson Parish Sheriff‘s Office (JPSO), testified that, on February 16, 1996, at approximately 9:15 p.m., he and Deputy David Greenwood also of the JPSO were preparing to go on patrol. They passed 11632 Creston Road in River Ridge and observed the Defendant and two other people washing a car. Agent Vignes testified that they recognized the Defendant and knew that there was an outstanding attachment on him.
Agent Vignes and Deputy Greenwood stopped to talk with the Defendant. According to Agent Vignes, the Defendant claimed not to be Tirrell Wells, and stated that he was only washing his car, and that Tirrell Wells was on the other side of the railroad tracks. The Defendant was then handcuffed and patted down for weapons. Agent Vignes testified that, while they were talking with the other two people who were washing the car, the Defendant began reaching into the back part of his pants. Agent Vignes went over to the Defendant to conduct a search incident his arrest. According to Agent Vignes, the Defendant claimed that he did not have anything on him, and the Defendant pulled down his pants and underwear. Agent Vignes testified that he did not find any weapons and told the Defendant to pull up his clothes.
On cross-examination, Agent Vignes stated that he had information from an informant that the Defendant was selling crack cocaine at that specific residence. Agent Vignes explained that on a previous occasion, an informant was with officers and pointed out the Defendant. The officers dropped off the informant to protect his identity and went back to get the Defendant. According to Agent Vignes, when they went back, the Defendant was no longer there. Agent Vignes testified that his partner had learned of the attachment at that time.
Deputy Greenwood testified that he was working with Agent Vignes on February 16, 1996, around 9:15 p.m. He and Agent Vignes were en route to the 4th District to pick up a patrol car in order to go on duty. He and Agent Vignes were in separate cars at that time and they did not stop immediately at Creston Street, where the Defendant was washing the car. Deputy Greenwood stated that when they arrived at the 4th District, he advised Agent Vignes that they had just passed Tirrell Wells. Officers Vignes and Deputy Greenwood picked up the patrol car and together they went back to Creston Street to where the Defendant was washing the car.
Deputy Greenwood testified that upon approaching the Defendant, he denied that he was Tirrell Wells. He knew the individual was Tirrell Wells and that he was not telling the truth. Deputy Greenwood arrested the Defendant and advised him of the attachment and his constitutional rights. After handcuffing the Defendant, Deputy Greenwood began questioning the other two individuals, a male and a female, who were also present. Deputy Greenwood observed the Defendant moving around and putting his hands in his pants. He also stated that the Defendant pulled down his pants.
Officer Daniel Waguespack of the JPSO Crime Lab testified as an expert in scientific analysis. He testified that he took a small portion of the evidence seized from the Defendant, performed various tests, and found it to be cocaine.
Sergeant Emile Larson of the JPSO Narcotics Enforcement Group testified as an expert in the field of narcotics investigation and interdiction. He testified that the 50 rocks of crack cocaine found on the Defendant were packaged individually, and in his opinion, to be sold wholesale and was not for personal use. After a jury trial on October 2, 1997, the Defendant was found “Guilty of possession with intent to distribute a controlled dangerous substance, to-wit: cocaine.” On October 16, 1997, the Defendant appeared for sentencing. The State reminded the trial court that the Defendant had been charged under
On appeal the Defendant assigns two errors. First, he argues that the trial court erred in sentencing him to 60 years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, under
The State amended the bill of information to allege that the Defendant had previously been convicted of violating
Further, no evidence was presented at the sentencing hearing to prove that the Defendant was a second offender. With no evidence to support the allegation that the Defendant was a second offender, the trial court clearly erred in sentencing the Defendant as a second offender under
Next, the Defendant argues that, because the State presented no evidence of a prior conviction of the Defendant, it was prejudicial error for the allegation of another crime to be in the bill of information and for this allegation to be presented to the jury. The Defendant argues that the reference in the bill of information was so prejudicial that it was impossible for him to get a fair trial, requiring reversal of the conviction.
The State argues that where it intended to have the Defendant‘s sentence enhanced under
A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B) ,R.S. 40:967(B) ,R.S. 40:968(B) orR.S. 40:969(B) , and if it is the offender‘s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.B. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offender had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drugs.
The Defendant argues that
First, we find that the issue has not been squarely presented in this circuit, although it has been considered in various procedural contexts by other appellate circuits, the Louisiana Supreme Court and even the United State Supreme Court. A historical review of these cases helps to clarify the issue before us. Since both parties herein rely on cases from the Third Circuit Court of Appeal, we will start there.
A panel of the Third Circuit Court of Appeal first spoke on this issue in State v. Livings, 95-251 (La.App. 3rd Cir.11/15/95), 664 So.2d 729. In Livings, the defendant was charged by bill of information with one count of possession of cocaine, in violation of
In a subsequent case, State v. Franklin, 96-1346 (La.App. 3rd Cir.4/16/97), 693 So.2d 219, writs denied, 97-2129 (La.3/13/98), 712 So.2d 867, where the defendant was charged with possession of cocaine with intent to distribute, in violation of
The Third Circuit was again presented with the same issue in State v. Williams, 96-476 (La.App. 3rd Cir.4/30/97), 693 So.2d 870, writs denied, 97-1365 (La.10/31/97), 703 So.2d 20, upon which the defense relies. In Williams, the defendant, was charged with possession of cocaine, in violation of
In our view, a prior conviction that is not an element of the substantive offense should not be alleged in a bill of information. It offends the notion of a fair trial. It is naive to think that its prejudicial impact is somehow vitiated by a limiting jury instruction. The Louisiana Supreme Court recognized the danger of introduction of other convictions or acts of misconduct in State v. Prieur, 277 So.2d 126, 128 (La.1973): “* * * the natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * *” 1 Wigmore, Evidence § 194 (3rd Edition).
This statute,
La. R.S. 40:982 , is independent of the crimes of possession ofcocaine and conspiracy to possess cocaine with intent to distribute. It is a sentencing mechanism. Sentencing is not a jury function; it is a judge function. The jury has no business hearing evidence of the conviction of another crime for the purpose of enhancing a defendant‘s sentence because it has nothing to do with what sentence will be imposed. The risk that the defendant is being convicted for the possession of cocaine and conspiracy to possess cocaine with intent to distribute because he has previously been convicted of these crimes is too great for the jury to become of aware of these latter convictions in a bill of information when that bill of information refers to a statute other than those which refer to the substantive offenses.
Nevertheless, while expressing serious reservations about the use of
The First Circuit has similarly held that allegations of multiple offenses under
In reviewing the Supreme Court cases which were relied on by the First and Third Circuits in support of their decisions, we find that the cases are distinguishable and do not mandate the result reached.
The first case considering the concept of placing allegations of prior offenses in the bill of information as a substantive part of the offense was State v. Bouzigard, 286 So.2d 633 (La.1973). In Bouzigard, the defendant was charged with possession of marijuana in violation of
Next, the Supreme Court addressed the issue in State v. Keys, 328 So.2d 154 (La. 1976). The defendant was charged in the bill of information with possession of marijuana, second offense, was found guilty of attempt possession of marijuana, second offense and was sentenced as a second offender. On appeal, the Supreme Court reversed the sentence because the statute did not provide for a second offense for attempt to commit the crime. In so holding, the Supreme Court cited Bouzigard, reiterating their position that in multiple offender possession of marijuana prosecutions the allegation that the crime is a multiple offense must be in the bill of information.
The Supreme Court thereafter touched on the issue in State v. Murray, 357 So.2d 1121 (La.1978). The defendant was charged with distribution of a controlled dangerous substance, a violation of
Similarly, in State v. Pounds, 359 So.2d 150 (La.1978), consistent with the reasoning in Bouzigard and Keys, the Supreme Court held that there was no error in including in the bill of information charging the defendant with carrying a concealed weapon (a misdemeanor) allegations of prior convictions, where his multiple offender status would raise the grade of the offense to a felony.
Next, the Supreme Court spoke on the issue in State v. Green, 493 So.2d 588 (La.1986). The defendant was charged with and convicted of third offense theft, in violation of
In Spencer, the United States Supreme Court upheld the constitutionality of a Texas recidivist statute which permitted the state to fully inform a jury, during a defendant‘s trial on the pending criminal charge, of the defendant‘s past convictions when the jury was also charged that such matters were to be considered only for the limited purpose of enhancement of punishment and not for deciding guilt or innocence. The United State Supreme Court recognized that prior crime evidence has a potential for prejudice and is usually excluded, except when it is particularly probative in showing such things as intent, a system of criminal activity, or when the defendant has raised the issue of his character, or when the defendant has testified and the state seeks to impeach his credibility. The Court acknowledged that the use of prior crime evidence in a one-stage recidivist trial may represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes are available to the state, such as bifurcated proceedings. Nevertheless, the Court concluded that under the Texas statutory scheme, the use of prior crime evidence in a one-stage recidivist trial was acceptable because the jury is instructed to limit consideration of the evidence for its proper purpose and because the procedure serves a valid state purpose of enforcement of habitual offender laws, where Texas juries have the authority to impose punishment.
After reviewing this long line of jurisprudence, we reach a different result from that of our First and Third Circuit brethren. We find that the state Supreme Court cases, which are cited and relied on for holding that allegations of prior convictions, under
However, we find that those considerations are not applicable here, where the initial charge is a felony. The multiple drug offender provision,
Moreover, weighing against the one-stage recidivist procedure is the well settled recognition of the prejudicial effect of admitting other crimes evidence before the jury, where it is not otherwise admissible, made even worse by placing it in the official charging document. We allow it in certain situations where the probative value outweighs the prejudicial effect, for example, to prove knowledge, intent or system. And, it is allowed for compelling reasons, like in Bouzigard, to fully charge the offense before trial, and, in Texas, where the jury has the authority to effect sentencing. But none of those reasons are applicable to the case before us.
This was observed by Justice Barham in his concurring reasons in State v. Bouzigard, 286 So.2d 633, 637 (La.1973):
In construing the multiple offender statute, we have held that the jury cannot be informed of the previous convictions which will later be spread before a judge alone so that he may determine the penalty to be imposed. State v. Jones, 209 La. 394, 24 So.2d 627 (1945).
Our law condemns the use of other offenses during the trial of the defendant for a particular offense because of the overriding prejudicial effect it may have in the jurors’ minds of the guilt or innocence for the particular offense charged. Particularly in crimes involving narcotics, prior offenses are highly prejudicial in determining whether or not a defendant is guilty of the particular offense of which he is presently accused. (emphasis supplied).
Similarly, Chief Justice Warren made the same point in his dissent in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606:
Recidivist statutes have never been thought to allow the State to show probability of guilt because of prior convictions. Their justification is only that a defendant‘s prior crimes should lead to enhanced punishment for any subsequent offenses.
Recognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the requirement of our criminal law that the State prove beyond a reasonable doubt the commission of a specific criminal act. It is surely ingrained in our jurisprudence that an accused‘s reputation or criminal disposition is no basis for penal sanctions. Because of the possibility that the generality of the jury‘s verdict might mask a finding of guilt based on an accused‘s past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of
past crimes except in circumstance where it tends to prove something other than general criminal disposition. Because of the complete irrelevance of prior convictions to the question of guilt or innocence, the recidivist situation is not one where the trial courts are called upon to balance the probative value of prior convictions evidence against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient of a procedure which reflects the exclusive relevance of recidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence....
Thus, we find that, since allegations of prior drug convictions under
Thus, we find that, in the context of this case where the Defendant is initially charged with a felony and the grade of his offense will not be effected by the State‘s intent to enhance his sentence as a multiple offender if convicted, there is no reason, compelling or otherwise, to place allegations of prior convictions in the bill of information and present that evidence to the jury. Further, we find that such action is prohibited by
Therefore, we find merit in the Defendant‘s argument that allegations of his prior conviction should not have been placed in the bill of information in this case and read to the jury. This was exacerbated by the fact that no such evidence was presented by the State, thus it cannot be determined if there even is any foundation for the allegation. We conclude that there was trial error in the admission of “other crimes” evidence at the Defendant‘s trial. Such an error, however, does not necessarily require reversal of the conviction, but is subject to harmless error review. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. The test for determining harmless error is whether it appears, beyond a reasonable doubt, that the error complained of did not contribute to the verdict. State v. Johnson, supra.
The jury in this case heard the testimony of Agent Vignes and Deputy
Accordingly, for the foregoing reasons, we vacate the Defendant‘s sentence as a second offender, affirm his conviction for possession of cocaine with intent to distribute, and remand to the trial court for resentencing consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
Notes
If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of conviction.
An indictment shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.