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State v. Carter
Citations: 981 So. 2d 734; 2008 WL 942277Docket: 2007-1237
Court: Louisiana Court of Appeal; April 9, 2008; Louisiana; State Appellate Court
Archie Louis Carter, Jr. was charged with multiple offenses including possession of controlled dangerous substances (CDS) and obstruction of justice. He pleaded not guilty to all charges on September 22, 2006. On October 5, 2006, additional charges were added, including possession of over sixty pounds of marijuana and conspiracy to distribute marijuana. The trial began on April 17, 2007, with the State dismissing one obstruction charge during the proceedings. The jury found Carter guilty on five counts. On May 14, 2007, he was sentenced to various terms of hard labor: five years for counts I, II, and IV; thirty years for count V (with the first five years without benefits) and ten years for count VI. The sentences for counts I, II, IV, and VI were to run concurrently with count V. Carter filed a notice of appeal and a motion to reconsider the sentence, both of which were denied. Carter raised five assignments of error on appeal, arguing insufficient evidence for his convictions, improper admission of other crimes evidence, denial of a mistrial, exclusion of testimony from Bridgette Brown, and excessive sentencing. Additionally, he submitted a pro se brief detailing claims regarding the reliability of co-defendant statements, lack of evidence linking him to the drugs, improper admission of evidence, entrapment allegations, and issues with the initial traffic stop. The Defendant faced charges for multiple offenses occurring in July and August 2006. In July, the Defendant was charged with possession of Schedule V controlled dangerous substances (CDS), specifically codeine; possession with intent to distribute Schedule III CDS, hydrocodone; and obstruction of justice. In August, the charges included possession of Schedule I CDS, marijuana, and conspiracy to distribute marijuana. On July 11, 2006, Detective Alton Horn arrested Cedric Jones, who had cocaine and twenty-five pounds of marijuana. Jones implicated the Defendant as his supplier. A 'buy/bust' operation was initiated, intending to intercept the Defendant delivering cocaine to Jones. Corporal Chris Cooper stopped the Defendant at a residence on Kary Street. After removing the Defendant from his vehicle, Corporal Cooper conducted a pat-down search and transferred him to narcotics officers. Detective Horn did not find any contraband on the Defendant during his search. Subsequently, Officer Todd Beamon discovered a substance on the floor of the Defendant's car, which was believed to be hydrocodone syrup. Officer Beamon later found thirteen pills, identified as hydrocodone, under the seat where the Defendant had been sitting. The liquid substance also contained codeine. In August 2006, Trevor Marshall testified that the Defendant offered him a chance to make money by traveling to Texas to purchase drugs. Along with the Defendant's girlfriend and others, they checked into a hotel in Texas City. The Defendant left the hotel early in the morning and returned later before instructing Marshall to drive the Defendant's car, a Grand Marquis. Marshall was stopped by police on Interstate 10, who, after a drug-sniffing dog alerted them, discovered several bales of marijuana in the car's trunk. Marshall informed the police that the drugs were intended for delivery to Larry Johnson in Opelousas. Subsequently, the marijuana was transferred to another vehicle for transport. Marshall provided testimony detailing his actions after arriving in Opelousas, where he misled the police about receiving a phone call instructing him to deliver drugs to Alexandria. Following this, he called his cousin, Elbert Sherman, to inform him about having marijuana and devised a plan for Sherman to pick it up from a Grand Marquis parked at an apartment complex. Marshall subsequently dropped off the car and met police nearby. Sherman expressed discomfort retrieving the marijuana, prompting Marshall to suggest moving the car to a car wash. At the car wash, they were joined by Sherman and Oliver Deal, but Sherman still felt uneasy, leading them to relocate to a residence on Morgan Street to transfer the marijuana. During the transfer, police arrived, leading to the arrest of Marshall, Deal, and Sherman. The following day, Marshall admitted to DEA Agent Scott Wright that the marijuana belonged to the Defendant but withheld full details of the events, including a stop at Auto Zone and the identities of others involved. Eventually, he disclosed the complete story to Detective Horn, who had previously been informed of Marshall's arrest in Texas for possession of marijuana. Marshall recounted that he had been recruited by the Defendant to transport drugs back from Texas for $1,500. He confirmed that they departed for Texas City, Texas, around 1:00 p.m. with a woman named Tisha. Marshall's testimony highlighted his initial deception, the group's movements, and the involvement of others in the drug operation. The Defendant departed a hotel room early in the morning, returning at approximately 6:10 a.m. Shortly after 8:00 a.m., he provided Marshall with keys to a Grand Marquis and instructed him to drive to Alexandria. Marshall was subsequently stopped by police in Beaumont, Texas, and contacted Deal and Sherman to assist in moving marijuana, indicating that the Defendant had been following him and was aware of the police stop. Detective Horn prepared an arrest warrant for the Defendant on August 16, 2006, based on Marshall's statements. On November 7, 2006, Horn interviewed employees at Auto Zone, where the store manager identified Marshall, the Defendant, and Danny Holmes from photographic lineups. Additionally, Marcus Ayala, the Auto Zone manager, testified about a group that approached the store after hours seeking a headlight. A lab report confirmed the seized bales contained marijuana. A review of the record revealed an error patent related to the bill of information, which incorrectly cited 'La. R.S. 40:968A1G' for possession with intent to distribute hydrocodone. The correct citation is La. R.S. 40:968(A)(1). La. Code Crim. P. art. 464 mandates that an indictment must state the official citation of the statute violated. Although the citation error exists, it did not mislead the Defendant to his prejudice, as the elements of the crime were correctly stated. No evidence indicated that the Defendant suffered any prejudice from this error, rendering it harmless. In his first assignment of error, the Defendant argued insufficient evidence to support his convictions for multiple offenses, including possession of Schedule V and III controlled substances, obstruction of justice, possession of marijuana, and conspiracy to distribute marijuana. Various pro se claims reiterated concerns about the lack of direct or circumstantial evidence linking him to specific actions, such as placing pills in a police car, the need for chemical analysis of the pills, and the inadequacy of evidence regarding a liquid substance. Collectively, these claims questioned the sufficiency of the evidence presented by the State. In assessing the sufficiency of evidence for a conviction, a reviewing court must decide if any rational trier of fact could find proof beyond a reasonable doubt for each essential element of the crime when viewing the evidence favorably for the prosecution. Circumstantial evidence must exclude every reasonable hypothesis of innocence, as mandated by La. R.S. 15:438, which works in conjunction with the Jackson constitutional sufficiency test to evaluate all evidence, both direct and circumstantial. In this case, the Defendant was convicted of possession of codeine (CDS Schedule V). The Defendant contends that during closing arguments, defense counsel conceded possession, limiting sufficiency arguments to other counts. However, the Defendant claims that testimony about a substance being poured out was hearsay and that there was no evidence proving he possessed illegal drugs or was arrested in a vehicle containing such substances. To support the conviction, the State needed to demonstrate that the Defendant knowingly or intentionally possessed codeine, as outlined in La. R.S. 40:970. Knowledge of possession could be inferred from circumstances rather than needing direct proof. Officer Beamon collected a substance from the Defendant's car, believing it to be hydrocodone syrup. A forensic chemist confirmed the substance contained codeine. The State alleged that the Defendant poured syrup onto the car's floorboard during a police stop, but hearsay objections limited the testimony on how the syrup ended up there and whether the Defendant was aware of it or its contents. Consequently, the State was required to establish through circumstantial evidence that the Defendant knew the syrup contained codeine. In State v. Burbank, the defendant was convicted of cocaine possession within 1,000 feet of a drug-free zone but contended that the State did not prove he knowingly possessed the cocaine. The court found sufficient evidence for a reasonable juror to conclude that the defendant knowingly possessed the cocaine, which was in plain view on the center console of his car, where he was the sole occupant. Testimony indicated the defendant exited the vehicle and attempted to flee when approached by police. The court referenced similar cases, such as State v. Wright, where constructive possession was established despite lack of ownership of the vehicle, and State v. Christopher, which noted that a reasonable driver would have seen the cocaine. In contrast, the current case involved codeine syrup, which may not have been as visible. The record lacked details regarding the syrup's visibility from the defendant's position and did not show any furtive behavior. Consequently, the conviction for possession of codeine was reversed, and a not guilty judgment was entered. For the charge of possession with intent to distribute hydrocodone, the State needed to prove the defendant knowingly possessed hydrocodone with intent to distribute it. The pills were found under the backseat of a police car after the defendant had been searched multiple times without any drugs being found on him. There was no evidence of suspicious behavior while he was in the police vehicle. The Defendant argues that for the State's case to be credible, it must be proven that he transported pills stored in his rectal area and subsequently discarded them in a patrol car. He contends that the pills were not properly analyzed to confirm they contained hydrocodone, asserting that this lack of analysis means the State has failed to demonstrate the pills were a controlled substance. In examining this claim, expert forensic chemist King testified that the green pills found by police contained hydrocodone based on visual identification and comparison with reference images, without any chemical testing. Detective Horn corroborated this by stating he recognized the pills as hydrocodone based on his experience. The document references *State v. Harris*, where the court addressed the sufficiency of evidence in a drug possession case despite the absence of a lab report confirming the substance as cocaine. The Louisiana Supreme Court noted that while the State must prove the identity of a drug as an essential element of the offense, previous cases, including *State in the Interest of J.W.*, established that circumstantial evidence and lay testimony could suffice to identify a substance without scientific evidence. The *J.W.* case highlighted that a defendant's belief, the packaging of the substance, and incriminating statements could support a conviction, even in the absence of chemical analysis. Federal jurisprudence supports this view, allowing circumstantial evidence to establish the identity of a controlled substance beyond a reasonable doubt. Identification of a substance as illicit can be established through familiarity from law enforcement and current observation. Sufficient lay and expert testimony indicated that the pills in question were hydrocodone. The defendant was charged with possession with intent to distribute hydrocodone, requiring the state to prove beyond a reasonable doubt both intentional possession and a specific intent to distribute, as defined by La. R.S. 40:968(A). Intent can be inferred from surrounding circumstances and various factors, including prior distribution attempts, the form of the drug, the quantity suggesting distribution, expert testimony suggesting the amount exceeds personal use, and possession of distribution-related paraphernalia. The intent to distribute can be proven with circumstantial evidence (La. R.S. 15:445). In this case, several police officers provided testimony. Officer Beamon noted that while the defendant was handcuffed, it was still possible for him to conceal drugs. Beamon routinely checked under police car backseats for hidden drugs and had not searched his car for several days prior to the defendant's arrest. He acknowledged that other officers had access to his vehicle. Detective Horn mentioned that contraband can often go undetected during pat downs and that suspects frequently hide drugs in police cars. Corporal Cooper described his pat down as limited and indicated that hidden contraband in private areas is common despite handcuffing. Corporal Cooper testified that he checks the police car for contraband before placing an individual inside and noted that he would not detect pills hidden in the rectal area during a pat down, as he had failed to do so in the past. He clarified that he does not typically search pockets, contradicting the Defendant's claim that he did so. Detective Horn stated he retrieved $745.00 from the Defendant's front pocket, though the timing of this action was not specified. In State v. Lee, the court found sufficient evidence to establish the defendant's intentional possession of marijuana and cocaine discovered in the police car's backseat, where the defendant had been observed moving. The court highlighted that possession can be established through either actual or constructive possession. In light of this, the evidence was deemed sufficient to show the Defendant intentionally possessed hydrocodone found in Officer Beamon's police car. Regarding the Defendant's intent to distribute the hydrocodone pills, the presence of a large sum of cash was noted as circumstantial evidence of distribution intent. The Defendant's prior convictions for drug offenses and the $745.00 found on him supported this inference, alongside the street value of the pills being between $65.00 and $130.00. The circumstantial evidence was deemed sufficient to uphold the charged offense of intent to distribute. The Defendant's argument regarding obstruction of justice was dismissed since it was determined that the pills possessed were indeed hydrocodone. Additionally, the Defendant was convicted of possession of marijuana in an amount exceeding sixty pounds but less than two thousand pounds. The State was tasked with proving that the Defendant knowingly or intentionally possessed between sixty and two thousand pounds of marijuana, as per La. R.S. 40:966. The Defendant contends that there was no evidence of actual or constructive possession of marijuana in Rapides Parish. Citing legal precedents, including United States v. Singh and others, the document explains that in a "controlled delivery" case, the validity of a drug seizure is determined at the time of initial seizure, not when the drugs are later retaken. The government is considered to have constructive possession when it has dominion over the drugs, even if they are temporarily delivered to another party. The Supreme Court further clarifies that once law enforcement lawfully identifies contraband, no privacy interest remains. For a controlled delivery to be valid, there must be an actual delivery to the defendant and evidence of his dominion over the drugs. In the example from United States v. Ford, the initial seizure of heroin was deemed valid at the moment government officials took control of the package. In the current case, the marijuana was purchased in Texas, seized in Beaumont, and transported to Louisiana. The Defendant did not have any contact with the marijuana after its transportation, leading to the conclusion that he did not possess it in Rapides Parish. The Defendant's conviction for possession of marijuana exceeding sixty pounds but under two thousand pounds is overturned, and the corresponding sentence is annulled. In Count VI, concerning conspiracy to distribute marijuana, the Defendant claims that the evidence of conspiracy was primarily provided by Marshall, a witness with a prior cocaine conviction, suggesting Marshall aimed to implicate a larger participant to gain leniency. The Defendant argues that the marijuana was not directly linked to him. Criminal conspiracy, as defined by La. R.S. 14:26, requires an agreement between two or more individuals to commit a crime, along with at least one party taking action towards that goal. A critical component of conspiracy is specific intent, characterized by the offender's desire for the criminal outcome, which can be inferred from their actions. The Defendant visited Marshall, proposing to pay him for music work in exchange for a favor. During a trip on Interstate 49, the Defendant disclosed plans to acquire three hundred pounds of marijuana, twenty bricks of cocaine, and forty-nine gallons of promethazine with codeine. Marshall expressed apprehension about the situation. In subsequent questioning, Marshall acknowledged he understood drugs were involved, noting his nervousness about the quantity. The group, including the Defendant, eventually traveled to a hotel in Texas City, Texas, where the Defendant left early in the morning and returned with car keys and a phone, instructing Marshall to follow him, while Marshall was aware drugs would be present in the vehicle. Agent Wright testified that Marshall relayed that the Defendant visited him, indicating plans to travel to Houston for drugs and offering Marshall $1,500 to drive a car back from Texas. In the case of State v. Butler, the defendant was convicted of possessing over 400 grams of cocaine and conspiracy to distribute it after a UPS employee inspected a suspicious package sent from Compton, California, which tested positive for cocaine. A woman and later a man made inquiries about the package without providing their names. The package was ultimately signed for by Tyrone Gaines, who was arrested and stated he was offered $300 to $400 to receive the package. The court found sufficient evidence linking the defendant to the conspiracy, noting that he was present during the delivery and had attempted to trace the package. Marshall’s testimony suggested that the Defendant orchestrated the trip and intended for Marshall to deliver drugs upon return to Alexandria, confirming the conviction for conspiracy to distribute marijuana. The Defendant challenged Marshall's credibility, but the jury accepted his testimony, and the court upheld this determination. In a separate claim, the Defendant argued that the trial court improperly admitted evidence of prior convictions. The State sought to introduce this evidence under Louisiana Rule of Evidence 404(B), emphasizing its relevance to the Defendant's knowledge. During a pre-trial hearing, defense counsel expressed a desire to exclude this evidence, but the court acknowledged its admissibility and discussed potential limiting instructions. A request for a limiting instruction was made by Armitage, who acknowledged issues regarding identity and knowledge related to the case. Despite concerns, he conceded the likelihood of the opposing side prevailing and reserved objections based on constitutional violations. The trial court permitted the State to present evidence of other crimes, to which defense counsel objected. The Defendant argued that there was no transcript of the hearing on the admissibility of this evidence and claimed the State did not demonstrate its relevance to the current charges. He asserted that the prejudicial impact was evident as the first witness testified about his prior convictions. In a pro se brief, the Defendant criticized the trial court's handling of evidence related to misconduct, alleging that the State failed to prove any related prior acts and that the evidence did not support a rational conclusion of intent to distribute drugs. He accused the State of conspiring to secure a conviction unjustly. The court noted that the defense counsel's objections regarding the probative value of the evidence were not raised at trial and thus could not be considered on appeal, as per Uniform Rules of Courts of Appeal, Rule 1-3. In a separate issue, the Defendant claimed the trial court erred in denying a motion for mistrial after a witness's response led to a hearsay objection from the State. Although the defense sought a mistrial, the basis for this request was not articulated, leading to its denial. The Defendant contended that the State improperly highlighted his failure to testify, which should have warranted a mistrial without further examination of the State’s intent. A mistrial may be warranted if the court interprets an indirect reference to the Defendant's failure to testify. Louisiana Code of Criminal Procedure Articles 770, 771, and 775 outline grounds for mistrial motions. However, the Defendant did not specify the basis for his objection or mistrial motion during the trial, leading to the conclusion that this error cannot be considered on appeal, supported by case law including State v. Giles. In the fourth assignment of error, the Defendant argues that the trial court wrongly excluded the testimony of Bridgette Brown, who was to corroborate that the Defendant reported his Grand Marquis stolen prior to another individual's arrest. The State objected to her testimony on hearsay grounds, which the court upheld. The Defendant maintained that Brown's testimony was not intended to prove the truth of the matter asserted but to clarify her actions. Brown, acting as the Magistrate for Boyce, testified that she received a complaint from the Defendant about his car, advising him to follow up with the local police. The court's ruling is supported by precedents emphasizing that information related to police investigations is not relevant to the essential elements of a crime and should not indirectly convey out-of-court statements of guilt that would otherwise violate hearsay rules. The probative value of out-of-court declarations is often outweighed by the risk that jurors will treat such statements as truth, potentially leading to negative inferences against a party. In this case, Ms. Brown could not testify about the Defendant's complaint regarding his vehicle as it would constitute hearsay. The Defendant’s fifth assignment of error regarding excessive sentencing is rendered moot due to the reversal of his convictions for possession of codeine and marijuana. However, the court will review the sentences related to possession with intent to distribute hydrocodone, obstruction of justice, and conspiracy to distribute marijuana. The Defendant argues he is not the most egregious offender and contests the aggravating factors considered by the trial court, including his alleged use of position to facilitate offenses and being a leader among co-offenders. He also claims the trial court improperly considered the weight of the marijuana as an aggravating factor and failed to take into account his age at the time of sentencing. The Defendant did not raise these specific arguments in his Motion to Reconsider Sentence, which precludes him from contesting them on appeal. Consequently, the court will only evaluate the claim of excessive sentences for the three mentioned offenses, in light of the Eighth Amendment and Louisiana Constitution prohibitions against cruel or excessive punishment. The excessiveness of a sentence is a legal issue that can be reviewed by the appellate court, which respects the trial court’s discretion in sentencing unless there is a clear abuse of that discretion. Sentences within statutory limits are generally not deemed excessive. Maximum sentences are reserved for serious offenses and repeat offenders. In this case, the Defendant received a five-year sentence for possession with intent to distribute hydrocodone, a midrange penalty; five years for obstruction of justice, the maximum; and ten years for conspiracy to distribute marijuana, an upper midrange sentence. The trial court considered the Defendant's extensive criminal history, which included multiple drug-related convictions and prior arrests. The appellate review concluded that there was no abuse of discretion regarding the sentences imposed. The Defendant's argument that the jury was not presented with factors for consideration during sentencing was rejected, affirming that the jury's role is limited to determining guilt or innocence, while the court imposes the sentence. In his first pro se claim, the Defendant challenged the reliability of statements made by co-defendant Trevor Marshall, which were based on testimony from various witnesses rather than written evidence. The jury accepted this testimony, and the appellate court found no basis to question the jury's credibility determinations. In his fifth pro se claim, the Defendant asserted entrapment based on Detective Horn's actions but did not raise this defense during the trial, rendering the claim without merit. A legal argument cannot be introduced for the first time on appeal, according to Uniform Rules-Courts of Appeal, Rule 1-3. Consequently, the Defendant's pro se claim regarding the reliability of the informant and the sufficiency of the tip to justify the vehicle stop is dismissed as it was not raised prior to or during the trial. The court reverses the Defendant's conviction for possession of codeine and vacates the corresponding sentence. However, the convictions and sentences for possession with intent to distribute hydrocodone, obstruction of justice, and conspiracy to distribute marijuana are affirmed. The conviction for possession of marijuana over sixty pounds but under two thousand pounds is also reversed, with the sentence vacated. Additional notes highlight prior convictions of witnesses, the exclusion of certain testimonial evidence, and clarify that the Defendant's claim regarding the maximum sentence for possession of Schedule III narcotics is incorrect, as he was convicted of possession with intent to distribute hydrocodone.