Opinion
NO. 2016 KA 1059
04-12-2017
STATE OF LOUISIANA v. GLENN GUYN
Jane L. Beebe New Orleans, Louisiana Counsel for Defendant/Appellant Glenn Guyn Warren L. Montgomery District Attorney J. Bryant Clark, Jr. Assistant District Attorney Covington, Louisiana Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of St. Washington State of Louisiana
Case No. 15-CR6-128360 The Honorable Richard Swartz, Jr., Judge Presiding Jane L. Beebe
New Orleans, Louisiana Counsel for Defendant/Appellant
Glenn Guyn Warren L. Montgomery
District Attorney
J. Bryant Clark, Jr.
Assistant District Attorney
Covington, Louisiana Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
Defendant, Glenn Guyn, was charged by bill of information with possession of a schedule IV controlled dangerous substance (alprazolam), a violation of La. R.S. 40:969(C) (count one); possession with intent to distribute a schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(A)(1) (count two); and operation of a clandestine laboratory, a violation of La. R.S. 40:983 (count three). He pled not guilty. The state severed count one and proceeded to trial on counts two and three. Following a jury trial, defendant was found guilty as charged on these remaining counts. Defendant filed motions for new trial and post-verdict judgment of acquittal, both of which the trial court denied. Thereafter, the state filed a habitual offender bill of information, alleging defendant to have three prior felony convictions. Pursuant to a plea agreement, defendant admitted to the allegations contained in the habitual offender bill of information in exchange for concurrent sentences on each count of forty years at hard labor, without the benefit of probation or suspension of sentence. The trial court accepted defendant's admission, adjudicated him a fourth-felony habitual offender on each count, and sentenced him in accordance with the agreement. Defendant moved for reconsideration of sentence, and the trial court denied the motion. Defendant now appeals, alleging three counseled and three pro se assignments of error. For the following reasons, we affirm the convictions, habitual offender adjudication, and sentences.
The predicate convictions were alleged as follows: 1) a June 17, 2010 conviction for possession of methamphetamine under Washington Parish (22nd JDC) docket number 10-CR3-107084; 2) a January 6, 2006 conviction for possession of hydrocodone under Washington Parish (22nd JDC) docket number 05-CR2-91985; and 3) an August 9, 1989 conviction for armed robbery under Jefferson Parish (24th JDC) docket number 89-1658.
While the minute entry from defendant's sentencing states that the benefit of parole is restricted, no such restriction was imposed by the trial court, as is reflected in the sentencing transcript. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La. 1983).
FACTS
On the evening of March 4, 2015, several members of the Washington Parish Sheriff's Office drug task force were conducting operations in the area of Mount Hermon. Lieutenant Brent Goings was responding to a call in the area of Porter's Curve when he observed a green Nissan truck cross the center line of the roadway. He alerted Detectives Steven Adcox and Jason Garbo to be on the lookout for the vehicle. Shortly thereafter, Detective Garbo located the suspect vehicle and began to follow it, noticing that the vehicle crossed the center and fog lines of the roadway several times. When the truck approached the area where Detective Adcox had parked his own vehicle, Detective Garbo effected a traffic stop with assistance from Detective Adcox.
Detectives Adcox and Garbo made contact with defendant, who was the driver and sole occupant of the vehicle. Defendant consented to a search of the truck. During the ensuing search, the detectives located an open beer can, multiple small storage bags containing a white substance eventually determined to be methamphetamine, a digital scale, more than one hundred pseudoephedrine pills, empty small storage bags, and lithium batteries. Defendant was not the registered owner of the vehicle. The registered owner of the vehicle arrived later, but he was not arrested.
Following the search of the vehicle, Detective Garbo applied for a search warrant of defendant's home, which was located approximately one-half mile from the scene of the stop, in the direction of defendant's travel. In an ensuing search of defendant's residence, the detectives located several items that are traditionally used in the production of methamphetamine, including a plastic bottle used as an "HC1 generator" and several containers of carburetor and starter fluid. Detective Adcox also recovered $513.00 in cash from defendant's person. In a Uniform Financial Data Questionnaire, defendant answered that he was "self-employed," had made $1,800.00 so far during the year, and currently used methamphetamine. Defendant did not testify at trial.
INSUFFICIENT EVIDENCE
When issues are raised on appeal both as to sufficiency of evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). In his second counseled assignment of error, defendant contends that the evidence presented at trial was insufficient to support his convictions. Specifically, he argues that the state failed to prove his connection to and ownership of the evidence seized from the truck and his house.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in La. Code Crim. P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
Under La. R.S. 40:967(A)(1), it shall be unlawful for any person knowingly or intentionally to possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II (methamphetamine, in this case). A defendant is guilty of distribution when he transfers possession or control of a controlled dangerous substance to intended recipients. See La. R.S. 40:961(14); State v. Cummings, 95-1377 (La. 2/28/96), 668 So.2d 1132, 1135. To support a conviction for possession with intent to distribute methamphetamine, the state is required to prove both possession and specific intent to distribute it. See State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1006.
Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance includes the purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment, or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance. See La. R.S. 40:983(A)(1). Thus, the state can prove a violation of this provision by demonstrating that a defendant possessed materials, supplies, and/or equipment with the intent that they be used to unlawfully manufacture a controlled dangerous substance.
On appeal, defendant does not challenge the intent to distribute element of count two, nor does he challenge the intent element of count three. Rather, he argues simply that the state failed to prove his identity as the owner of the methamphetamine for the purposes of count two or as the owner of the materials, supplies, and equipment for the purposes of count three.
To support a conviction for possession of a controlled dangerous substance, the state must prove that the defendant was in possession of the illegal drug and that he knowingly or intentionally possessed the drug. Guilty knowledge therefore is an essential element of the crime of possession. A determination of whether there is "possession" sufficient to convict depends on the peculiar facts of each case. State v. Harris, 94-0696 (La. App. 1st Cir. 6/23/95), 657 So.2d 1072, 1074-75, writ denied, 95-2046 (La. 11/13/95), 662 So.2d 477.
To be guilty of the crime of possession of a controlled dangerous substance, one need not physically possess the substance; constructive possession is sufficient. In order to establish constructive possession of the substance, the state must prove that the defendant had dominion and control over the contraband. A variety of factors are considered in determining whether a defendant exercised "dominion and control" over a drug, including: a defendant's knowledge that illegal drugs are in the area; the defendant's relationship with any person found to be in actual possession of the substance; the defendant's access to the area where the drugs were found; evidence of recent drug use by the defendant; the defendant's physical proximity to the drugs; and any evidence that the particular area was frequented by drug users. Harris, 675 So.2d at 1075. A determination of whether there is sufficient "possession" of a drug to convict depends on the peculiar facts of each case. State v. Trahan, 425 So.2d 1222, 1226 (La. 1983).
The evidence at trial established that defendant, by virtue of his dominion and control over the Nissan truck as its driver, exercised dominion and control over all of the evidence seized from the vehicle. This seized evidence included small packages of methamphetamine, a digital scale, lithium batteries, and a large quantity of pseudoephedrine pills. Similarly, the evidence established that defendant's home contained several items used in the production of methamphetamine, including at least one item—the "HC1 generator"—that had no use besides the production of methamphetamine. Defendant was the sole occupant of the vehicle at the time it was stopped less than one mile from his home. The contents of the vehicle, combined with the evidence found at defendant's home, are strong circumstantial evidence that defendant knowingly possessed methamphetamine with an intent to distribute it and also that he possessed materials, supplies, and equipment with the intent to produce more methamphetamine.
In the instant case, any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the state, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of possession with intent to distribute methamphetamine and operation of a clandestine laboratory. An appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing the weight of the evidence. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.
When a case involves circumstantial evidence and the fact finder reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). We find no such hypothesis exists in the instant case. The jury's verdict indicates it rejected defendant's theory of innocence, as presented through cross-examination and argument, that he did not own the vehicle he was driving and, thus, was not aware of its contents. The jury further rejected a related argument that the items found in defendant's home had innocent uses.
Further, in reviewing the evidence, we are unable to say that the jury's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. A court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). In accepting a hypothesis of innocence that was not unreasonably rejected by the jury, a court of appeal impinges on a jury's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814 at p. 4 (per curiam).
This assignment of error is without merit.
OTHER CRIMES EVIDENCE
In his first counseled assignment of error, defendant argues that the trial court erred in allowing the state to introduce evidence of two prior drug convictions at trial. Defendant contends that the two prior convictions had no relevance to the crimes charged and that their probative value was greatly outweighed by their prejudice.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. A trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).
In State v. Taylor, 2016-1124 & 1183 (La. 12/01/16), ___ So.3d ___, 2016 WL 7030750, the Louisiana Supreme Court recently clarified the procedure by which the state may seek to introduce other crimes evidence under La. Code Evid. art. 404(B)(1) and State v. Prieur, 277 So.2d 126 (La. 1973). When the state seeks to introduce other crimes evidence, it is required to provide the defendant with written notice prior to trial of the intent to produce such evidence. See Taylor, ___ So.3d at ___, 2016 WL 7030750 at p. 7. When the state does so, the trial court is required to conduct a pretrial hearing to determine the admissibility of the other crimes evidence. See Id at p. 6.
This hearing is not intended to be a "mini trial" of the prior offenses. Rather than the "clear and convincing" standard previously required under Prieur, Taylor clarified that when the state seeks to introduce evidence pursuant to La. Code Evid. art. 404(B), the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act. No specific form of evidence is mandated or prohibited for every case, and sufficiency of the state's evidence must be determined on a case-by-case basis. See Id. The safeguard in Prieur providing for a jury charge regarding the limited purpose for which the other crimes evidence is presented remains valid. Id. at p. 7.
Moreover, even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence must have substantial relevance independent from showing defendant's general criminal character and thus is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. Accordingly, the state cannot simply rely on a boilerplate recitation of the grounds for admissibility stated in La. Code Evid. art. 404(B). It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence. The district court must also balance the probative value of the other crimes, wrongs, or acts evidence against its prejudicial effects before the evidence can be admitted. See Taylor, ___ So.3d at ___, 2016 WL 7030750 at p. 7.
In the instant case, the state filed a notice of intent to use other crimes evidence, particularly evidence that defendant had previously committed offenses on December 16, 2009 for possession of methamphetamine, and on March 29, 2004 for possession with intent to distribute marijuana. In the notice of intent, the state argued that these offenses were relevant to prove defendant's intent to distribute in the instant case.
We recognize that while the notice of intent clearly identifies the alleged prior offenses sought to be introduced by the state, it also refers to "very recent heroin sales" that do not appear to have any connection to defendant.
Prior to the calling of the first witness, the trial court held a brief hearing on the other crimes evidence issue. At this hearing, the state and defense stipulated that defendant was the individual who was convicted for the two prior crimes sought to be introduced by the state. Defense counsel argued against the admissibility of the two prior convictions, contending primarily that they were "overkill," "highly, highly prejudicial," and ran the danger of confusing or misleading the jury. In response, the state argued that the evidence of defendant's prior possession with intent to distribute marijuana conviction was relevant to show defendant's intent to distribute in this case. The state also argued that the possession of methamphetamine conviction was relevant because it was the drug directly involved in this case.
Defendant argues in his brief that no pretrial hearing ever took place, but this issue was clearly addressed by the parties at this time. Further, while Taylor may indicate that an independent pretrial Prieur hearing is now required, defendant did not contemporaneously object to the procedure used by the trial court to address the other crimes issue. Thus, he is precluded from raising this issue on appeal. See La. Code Crim. P. art. 841(A).
The trial court accepted the stipulation as to defendant's identity, but reserved its ruling as to the admissibility and introduction of the evidence until the state attempted to present it at trial. Because the trial court accepted the stipulation, there is no question that the evidence at this hearing was sufficient to support a finding that defendant committed the other crimes. See Taylor, ___ So.3d at ___, 2016 WL 7030750 at p. 6.
During a recess, outside of the presence of the jury, the trial court brought up the other crimes evidence issue and stated:
And concerning the 404(B) motion, the Court has heard the opening statements in this matter, the questioning of the witnesses by defense counsel, [and] it's clear to the Court that issues of knowledge, mistake, intent, and identity are being placed before this jury. Therefore, under 404(B), the Court is going to allow the use of the prior convictions in accordance with the law.
At the time the trial court made this ruling, defense counsel had cross-examined two witnesses extensively about whether certain evidence had been fingerprinted or had attempted to have been fingerprinted. It had not. The apparent aim of this line of questioning was to call into doubt defendant's connections to the methamphetamine and other contraband. The state ultimately introduced certified copies of defendant's convictions as evidence of these two prior offenses.
Because defendant was charged with possession with intent to distribute methamphetamine, the state had the burden of proving intent at trial. Whether a defendant ever distributed or attempted to distribute illegal drugs is a circumstantial factor relevant to proving intent to distribute. See State v. Smith, 2003-0917, (La. App. 1st Cir. 12/31/03), 868 So.2d 794, 800. Therefore, the 2004 conviction for possession with intent to distribute marijuana was relevant to the issue of intent. While evidence of any prior conviction is necessarily prejudicial, we cannot say that the evidence of this 2004 conviction was so inflammatory as to create an unacceptable risk of luring jurors into declaring guilt on a ground different from proof specific to the offense charged. See Taylor, ___ So.3d at ___, 2016 WL 7030750 at p. 10. Notably, the proof itself consisted only of the bill of information charging the offense and a copy of the plea transcript, neither of which contained any sort of narrative that might risk confusing or misleading the jury. Therefore, the trial court did not abuse its discretion in finding the evidence of this offense to be admissible.
As to the 2009 conviction for possession of methamphetamine, while the state argued that this offense should be admissible because it included the same drug as was involved in this case, that explanation runs close to the prohibition of proving the character of a person to show that he acted in conformity therewith, as is prohibited by La. Code Evid. art. 404(B)(1). However, the trial court also found that the issues of knowledge and potential mistake had been raised by defense counsel's opening statements and lines of questioning. To that extent, defendant's prior conviction for possession of methamphetamine potentially could be relevant to negate any argument by the defense that defendant did not know he was in possession of the methamphetamine that was located in the truck. Again, the proof of this evidence consisted only of a bill of information and minute entry, neither of which contained any narrative of the prior offense. While the evidence of this conviction was undoubtedly prejudicial simply because of its nature, we cannot say it was so inflammatory as to create an unacceptable risk of luring jurors into declaring guilt on a ground different from proof specific to the offense charged. See Taylor, ___ So.3d at ___, 2016 WL 7030750 at p. 10. Therefore, the trial court did not abuse its discretion in allowing the state to introduce the evidence of the 2009 conviction for possession of methamphetamine.
This assignment of error is without merit.
HABITUAL OFFENDER ADJUDICATION
In his final counseled assignment of error, defendant contends that the trial court erred in securing a waiver of defendant's rights prior to accepting his admission to the habitual offender bill of information.
This argument is baseless. At the habitual offender hearing, defendant, who was facing a term of imprisonment of thirty years to life imprisonment, accepted a plea agreement of forty years at hard labor on each count (to run concurrently). The trial court discussed with defendant the allegations of each of his prior convictions included in the habitual offender bill of information. Further, the trial court informed defendant that he was entitled to a hearing on the allegations in the habitual offender bill of information, of the burden of the state to prove the allegations, and of his right to remain silent. Defendant was represented by counsel at this hearing and stated to the court that no one had forced him or coerced him into admitting the allegations of the habitual offender bill of information. Given his potential sentencing range, defendant received a relatively favorable plea agreement. See La. R.S. 15:529.1(A)(4)(a) & 40:967(B)(1); see also State v. Cook, 2011-2223 (La. 3/23/12), 82 So.3d 1239, 1240 (per curiam). Additionally, despite defendant's contention, there is no requirement that a "plea form" be executed. See State v. Sibley, 2015-1424 (La. App. 1st Cir. 4/15/16), 2016 WL 1535157, p. 6 (unpublished), writ not considered, 2016-1447 (La. 11/7/16), 209 So.3d 102.
This assignment of error is without merit.
MOTION TO SUPPRESS
In his first pro se assignment of error, defendant contends that the trial court erred in denying his motion to suppress the evidence seized pursuant to the traffic stop. Defendant argues that the officers unlawfully prolonged the stop and that defendant did not freely and voluntarily consent to the search of the vehicle.
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. A traffic stop is a type of seizure. Warrantless searches and seizures are per se unreasonable unless a court-created exception applies. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved one of these exceptions. In Terry, the United States Supreme Court held that a police officer need have only reasonable suspicion to perform a brief investigatory stop. The Terry court opined such a procedure may be justified though lacking probable cause if the officer acts quickly to dispel or confirm his suspicions. Terry, 392 U.S. at 28-31. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. La. Code Crim. P. art. 215.1(A).
During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. La. Code Crim. P. art. 215.1(D). When a police officer detains a vehicle beyond the initial stop, he must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). A police officer may further detain an individual while he diligently pursues a means of investigation likely to confirm or dispel the particular suspicion. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). In determining whether the officer has a reasonable suspicion of some separate illegal activity that justifies further detention, the totality of the circumstances must be taken into account. State v. Kalie, 96-2650 (La. 9/19/97), 699 So.2d 879, 881 (per curiam).
As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The standard is a purely objective standard that does not take into account the subjective beliefs or expectations of the detaining officer. Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. See Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996); State v. Waters, 2000-0356 (La. 3/12/01), 780 So.2d 1053, 1056 (per curiam).
A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A). Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the state to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Young. 2006-0234 (La. App. 1st Cir. 9/15/06), 943 So.2d 1118, 1122, writ denied, 2006-2488 (La. 5/4/07), 956 So.2d 606; see also La. Code Crim. P. art. 703(D).
A valid consent search is another exception to the warrant requirement. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). A consent to search is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. Matlock, 415 U.S. at 171 n.7, 94 S.Ct. at 993 n.7. The state bears the burden of proving that the consent has been freely and voluntarily given. State v. Owen, 453 So.2d 1202, 1206 (La. 1984); State v. Dawson, 2014-0326 (La. App. 1st Cir. 9/24/14), 154 So.3d 574, 577, writ denied, 2014-2212 (La. 8/28/15), 175 So.3d 411.
In the instant case, defendant does not challenge the propriety of the initial traffic stop and questioning. Rather, he argues that the traffic stop was unlawfully prolonged and that his consent to search the vehicle was not freely and voluntarily given.
Detective Adcox testified at the suppression hearing and at trial. At the suppression hearing, Detective Adcox testified that Detective Garbo effected the traffic stop of defendant's vehicle after Lieutenant Goings radioed concerning the vehicle crossing the center line. After the vehicle was stopped, defendant exited and walked to the rear, where he spoke with Detective Garbo. Detective Garbo asked defendant whether he had been drinking, to which he responded affirmatively. Defendant also indicated that there was an open container in the vehicle. At that time, Detective Garbo asked for consent to search the vehicle, which defendant granted with the explanation that the vehicle was not his, making him unaware of anything that might be in it. Pursuant to this consent, the evidence from the vehicle was seized. No written consent form was executed.
In reviewing the correctness of the trial court's ruling on a motion to suppress evidence, the appellate court is not limited to the evidence adduced at the hearing on the motion; rather, it may consider all pertinent evidence given at the trial of the case. See State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979). --------
Detective Garbo also testified at the suppression hearing and at trial. His testimony was similar to that of Detective Adcox, stating that he stopped defendant's vehicle pursuant to Lieutenant Goings's radio call and because he personally witnessed the vehicle bounce across the center line. According to Detective Garbo, defendant exited the vehicle and met him about halfway down the side of the truck. Detective Garbo asked defendant whether he had been drinking, and defendant said he had. Detective Garbo testified that he asked for, and received, defendant's consent to search the vehicle. He confirmed that defendant told him the vehicle did not belong to him. Detective Garbo disputed defendant's contention that he did not consent to the search of the vehicle.
Defendant testified at the suppression hearing. He stated that he had not been drinking and that he was not speeding, nor did he cross the center line. Defendant stated that the officer who stopped him did not ask for identification, but indicated that the officer already knew his identity. He also testified that he did not consent to a search of the vehicle because the vehicle was not his. According to defendant, he was handcuffed and in the back of a police truck when the officers opened both doors of the vehicle and began to search it.
In denying the motion to suppress, the trial court found that the evidence in this case was seized pursuant to a consent search (the vehicle) and a search warrant (defendant's house). Considering the record as a whole, we conclude that the trial court did not err or abuse its discretion in denying the motion to suppress.
First, the decision to stop defendant's vehicle was objectively reasonable based upon Detective Garbo's observations of the vehicle crossing the center line of the highway. See La. R.S. 32:79; Whren, 517 U.S. at 819, 116 S.Ct. at 1777. Second, while defendant contends that the traffic stop was unjustifiably prolonged, all of the testimony besides his own indicates that the initial investigation of the traffic stop almost immediately led to defendant's consent to search the vehicle. Finally, while defendant contends alternately that he did not consent to a search (at the hearing) and that his consent to search was not freely and voluntarily given (on appeal), the officers' testimony reflects that defendant consented to have the vehicle searched with the caveat that anything found inside did not belong to him. The trial court clearly believed the officers' testimony over defendant's, and credibility determinations are entitled to great weight on appeal. Viewed in this light, the trial court's legal finding of a valid consent search is correct. As a result, defendant's remaining contention - that the search warrant was fruit of the poisonous tree - is not valid.
This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second pro se assignment of error, defendant argues that his trial counsel was ineffective for failing to question or object to the continued service of a juror whose son might have been arrested with defendant in the past.
Prior to opening statements, the trial court asked a seated juror about the 2009 arrest of "someone that apparently resided at the same address with [him]." The implication was that the person who lived with the juror was arrested in connection with an incident also involving defendant. The juror indicated that he remembered his older son being "picked up one time," but he did not remember the name of the person with whom he was arrested, nor did he know the circumstances of the case. The juror indicated that he had never met defendant and that he did not know anything about him. The trial court asked the parties whether they had any questions for the juror. The district attorney responded negatively, and defense counsel was silent on the record. Thereafter, the court asked whether either side had any objections to the juror's continued service. The district attorney and defense counsel had none, and defense counsel asked defendant whether he was okay with the situation. On the record, defendant responded, "Yeah, I guess."
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
The second element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for his counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. Serigny, 610 So.2d at 859-60.
In the instant case, the record permits definitive resolution of the ineffective assistance of counsel claim on appeal because defendant has failed to make a showing of deficient performance, and no further evidence is required to adjudicate the claim. While the record is unclear as to who discovered the juror's son's potential connection to defendant, the trial court questioned the juror, who stated that he was unaware of the circumstances of his son's arrest. Further, the juror stated that he had no knowledge concerning his son's case or defendant, himself. While defendant asserts on appeal that his trial counsel should have further questioned this juror, he has not demonstrated what questions could have been asked to a juror who disclaimed any prior knowledge of defendant. Additionally, had defense counsel elected to further question the juror, any such questions might themselves have run the risk of prejudicing the individual. Finally, defense counsel asked defendant whether he had any objection to the juror continuing to serve, and defendant voiced none.
Considering these facts and circumstances, we conclude that defense counsel did not perform deficiently in electing not to further question the juror or to object to his continued service.
This assignment of error is without merit.
IMPROPER REMARKS DURING CLOSING ARGUMENT
In his final pro se assignment of error, defendant contends that the prosecutor's continued argument regarding a sustained objection constituted an improper closing argument that prejudiced the jury and contributed to the guilty verdicts. Specifically, defendant argues that the state improperly argued regarding defendant's ability to call witnesses to testify regarding who actually lived in the house where incriminating evidence was seized.
In the instant case, most of the evidence concerning the charge on count three was seized from a home belonging to defendant. The state did not call to testify anyone else who might have lived in that home. In his closing argument, defense counsel discussed the evidence found in the home and called into question how many other people might have lived there, as well as stating, "The [s]tate didn't produce residents of the defendant's house." In his rebuttal argument, the prosecutor stated, in pertinent part:
[The State]: I proved it was his house. If the defendant wanted to prove 47 people lived in a house, he's got the subpoena power.
[Defense counsel]: Objection, Your Honor.
The Court: Sustained.
[The State]: I'm not the only one that can call witnesses. . . .
* * *
The state: Don't be fooled by his confusion about we didn't prove one person lives in a house instead of 700. We didn't prove that 400 people drove this car in the past day. That's what they want you to believe. This guy had control over that car, this guy had control over that stuff, and this guy had control over the house.
Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. Further, the state's rebuttal shall be confined to answering the argument of the defendant. See La. Code Crim. P. art. 774. Prosecutors are allowed wide latitude in choosing closing argument tactics. See State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The trial judge has broad discretion in controlling the scope of closing arguments, and this Court will not reverse a conviction on the basis of improper closing argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. See State v. Prestridge, 399 So.2d 564, 579-580 (La. 1981); Draughn, 950 So.2d at 614.
In the instant case, the prosecutor's statements regarding defendant's subpoena power were made as a direct rebuttal to defense counsel's arguments that the state failed to produce any residents of defendant's house. Once the issue of the state's failure to call certain witnesses is raised by the defense, the state is entitled to point out a defendant's right to subpoena witnesses. See State v. Vansant, 2014-1705 (La. App. 1st Cir. 4/24/15), 170 So.3d 1059, 1063-64. Therefore, even though the trial court sustained defense counsel's objection as to this line of argument, the argument itself did not violate defendant's rights and was in direct response to defense counsel's argument.
This assignment of error is without merit.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED.