Summary
In State v. Smith, 23-263 (La.App. 5 Cir. 12/27/23), 379 So.3d 206, 214-15, this Court found that the trial court's order for a financial hardship hearing to be held for payment of costs, fines, and fees one year after defendant's release from the Department of Corrections was a patent error.
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NO. 23-KA-263
12-27-2023
STATE of Louisiana v. Eric SMITH
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Conniek, Jr., Metairie, Thomas J. Butler, Shreveport, Andrea F. Long, Gretna, LaShanda Webb COUNSEL FOR DEFENDANT/APPELLANT, ERIC SMITH, Prentice L. White
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT. COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 20-5249, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Conniek, Jr., Metairie, Thomas J. Butler, Shreveport, Andrea F. Long, Gretna, LaShanda Webb
COUNSEL FOR DEFENDANT/APPELLANT, ERIC SMITH, Prentice L. White
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
WINDHORST, J.
1In this case, defendant/appellant, Eric Smith, appeals his convictions and sentences for possession of heroin weighing 2 to 27.9 grams in violation of La. R.S. 40:966 C (count two), and possession of cocaine weighing less than 2 grams in violation of La. R.S. 40:967 C (count three). For the following reasons, we affirm defendant’s convictions, vacate his sentences, and remand for resentencing.
PROCEDURAL HISTORY
On October 2, 2020, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Smith, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one), possession of heroin weighing 2 to 27.9 grams in violation of La. R.S. 40:966 C (count two), and possession of cocaine weighing less than 2 grams in violation of La. R.S. 40:967 C (count three). Defendant pled not guilty at his arraignment.
On June 16, 2022, the State filed a notice pursuant to La. C.Cr.P. art. 719, informing the court and defendant that it intended to call Mr. Michael Cole to testify as to the controlled substance analysis of the brown and white powder like substances, which constitute evidence in this case. Defendant objected to the scientific analysis report to the extent the controlled substance analysis indicated that drugs other than heroin and cocaine were detected in the substances found on defendant. Defendant argued that the report should be redacted to exclude reference to these other drugs. The trial court denied defendant’s request.
On June 21, 2022, the jury trial commenced, and on the following day, a twelve-person jury unanimously found defendant not guilty as to possession of a firearm by a convicted felon (count one) and guilty as charged for both possession of heroin weighing 2 to 27.9 grams (count two) and possession of cocaine weighing less than 2 grams (count three).
2On July 6, 2022, defendant filed a motion for new trial, alleging that the court erred in admitting the scientific analysis report into evidence without the redaction of the reference to fentanyl. Defendant argued that the verdicts on counts two and three were contrary to the law and evidence, and that a new trial was warranted. On the same date, defendant also filed a motion for post-verdict judgment of acquittal. The trial court denied both the motion for new trial and the motion for post-verdict judgment of acquittal.
On August 18, 2022, the trial court sentenced defendant to five years imprisonment at hard labor for possession of heroin (count two) and two years imprisonment at hard labor for possession of cocaine (count three),, concurrent with each count and "concurrently with any other sentence with credit for all time served from the date of arrest." The court also ordered defendant to pay "costs, fines, and fees in accordance with the cost, fine, and fee sheet." The trial court stated that a hearing on defendant’s ability to pay would be set one year after defendant’s release from the Department of Corrections.
On December 7, 2022, the State filed a multiple offender bill of information for possession of heroin weighing 2 to 27.9 grams (count two), alleging defendant was a second-felony offender, previously convicted of possession of heroin in violation of La. R.S. 40:966 C on March 22, 2019. Defendant stipulated to being a second-felony offender. The trial court vacated defendant’s previous sentence for count two, and sentenced defendant to five years imprisonment at hard labor without the benefit of probation or suspension of sentence as a second felony offender. The trial court ordered that defendant would be responsible for all court costs, fines, and fees, and that the court would hold an ability to pay hearing upon defendant’s release from the Department of Corrections.
Defendant now appeals, asserting that the trial court erred in, denying the defense’s request to redact the scientific analysis report.
3 JURISDICTIONAL ISSUE
[1] Defendant’s motion for appeal was untimely filed because he filed his motion for appeal on November 3, 2022, more than thirty days after the initial sentencing on August 18, 2022. The trial court, however, granted the motion for appeal on November 15, 2022. Although it was untimely, the record does not reflect that the State objected to defendant’s motion for appeal. Moreover, we find it fruitless to forestall this appeal until post conviction relief, wherein it is likely that defendant would qualify for a Counterman out of time appeal.
La. C.Cr.P. art. 914 provides that a motion for a criminal appeal must be filed no later than 30 days after the judgment or ruling, or ruling on a motion to reconsider sentence filed pursuant to Article 881.1.
State v. Counterman, 85-0254 (La. 9/10/1985), 475 So.2d 336.
This court has previously addressed the merits of an appeal, despite the fact that defendant’s motion for appeal was untimely, in the interest of judicial economy and to avoid useless delay. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 893-94, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836. See also, State v. Jones, 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 716 (despite defendant’s untimely motion to reconsider sentence and motion for appeal, this court addressed the merits of the appeal in the interest of judicial economy); State v. Babineaux, 08-705 (La. App. 5 Cir. 1/13/09), 8 So.3d 621, 623. Therefore, in the interest of judicial economy and the avoidance of useless delay, we will consider the merits of this appeal.
EVIDENCE
At trial, Officer Christopher Washington, of the Kenner Police Department, testified that, on July 6, 2020, he stopped defendant in a Ford Expedition at a Circle K on Williams Boulevard in Kenner, Louisiana, because defendant’s vehicle matched the description of a vehicle that had been identified as leaving the scene of a simple criminal damage complaint nearby on East Loyola Drive. After stopping the vehicle, defendant hopped out of his vehicle and took off running southbound on Williams 4Boulevard. Officer Washington said he briefly pursued defendant on foot, stopped him, and arrested him.
Officer Washington testified that he searched the vehicle for inventory, and found a black bag containing a firearm on the passenger’s side of the vehicle. After Officer Washington searched defendant’s vehicle, it was towed.
Officer Fabian Varela with the Kenner Police Department testified that on July 6, 2020, he searched defendant at the Kenner jail during the "booking" process, and discovered a black bag under defendant’s pants on the right leg. The black bag contained narcotics wrapped in smaller clear plastic bags.
Officer Michael Cole, who was previously employed with the Jefferson Parish Sheriff's Office Crime Lab as a forensic chemist, testified that he analyzed the controlled dangerous substances that were found on defendant and prepared a scientific analysis report identifying the results of the controlled substances analysis. The scientific analysis report indicates that six sealed plastic bags were analyzed for controlled substances, and the results regarding the six individual bags were as follows: (1) methamphetamine; (2) methadone; (3) heroin and fentanyl; (4) cocaine; (5) heroin and methadone; and (6) heroin. At trial, Mr. Cole testified as to the findings set forth in the scientific analysis report.
Mr. Cole explained that a forensic chemist uses chemistry to analyze evidence, and that he was proficient in analyzing controlled dangerous substances and ignitable liquids. The State and defendant stipulated that Mr. Cole was an expert in the field of analysis and identification of controlled dangerous substances.
Defendant testified at trial that on July 6, 2020, he was stopping at the gas station to pick up cigarettes when the police stopped him. He said he ran from the police because something did not feel right and people were getting killed by cops. Defendant said several officers, including Officer Washington, searched him, and he was already in Kenner jail when the Ford Expedition was being searched. Defendant denied knowing what was inside the bag found in the Ford Expedition, and he denied seeing the gun before the day of trial. He also denied having drugs under his pants.
5 LAW and ANALYSIS
Defendant argues that the introduction of the scientific analysis report, without the redaction of fentanyl and methadone, amounted to the erroneous introduction of other crimes evidence. The State responds that the evidence formed part of the res gestae in this case because all of the drugs were possessed contemporaneously. [2–4] Generally, a court may not admit evidence of other crimes to show a defendant is a person of bad character, and that he has acted in conformity with his bad character. State v. Napoleon, 12-749 (La. App. 5 Cir. 5/16/13), 119 So.3d 238, 242. The State, however, may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Id.; La. C.E. art. 404 B(1). Such evidence is also admissible when it relates to conduct that constitutes an integral part of- the act or transaction that is the subject of the present proceeding. La. C.E. art. 404 B(1).
[5–7] Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 648-49, writ denied, 17-1265 (La. 4/27/18), 241 So.3d 306; State v. Napoleon, 119 So.3d at 242. Close connexity in time and location is required between the charged and uncharged conduct to ensure that "the purpose served by admission of the other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." Id.; State v. Garcie, 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1284-85. The test of whether res gestae evidence is admissible is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, 6but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076.
[8, 9] Once other crimes evidence is ruled admissible, the court must determine whether the probative value of the past crimes evidence substantially outweighs its prejudicial effect. La. C.E. art. 403; Maize, 223 So.3d at 649. Prejudice limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. State v. Thomas, 19-582 (La. App. 5 Cir. 7/29/20), 300 So.3d 517, 527-28, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053. Defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir. 12/28/11), 83 So.3d 178, 187, writ denied, 12-282 (La. 5/18/12), 89 So.3d 1191, cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013).
[10, 11] The trial court is afforded great discretion in determining whether evidence is relevant. State v. Wilson, 14-878 (La. App. 5 Cir. 5/28/15), 171 So.3d 356, 364, writ denied, 15-1204 (La. 5/27/16), 192 So.3d 741. A trial court’s ruling on admissibility of other crimes evidence will not be disturbed absent an abuse of discretion, i.e., whether the ruling was based upon an erroneous application of the law or a clearly erroneous assessment of the evidence. State v. Horn, 22-1722 (La. 2/14/23), 354 So.3d 1222, 1223.
In Colomb, 747 So.2d at 1075, defendant was charged with possession of a firearm by a convicted felon. The police found the firearm on the floorboard of his vehicle and marijuana underneath defendant’s shirt. On appeal, defendant asserted that the marijuana should have been excluded as it did not relate to conduct forming an integral part of the charged offense. Id. The Louisiana Supreme Court found that 7evidence of the defendant’s marijuana possession contemporaneous with the police discovery of the firearm in his truck provided not only narrative completeness to a case which began as a narcotics stop, but also formed an integral part of the contextual facts in which jurors evaluated the stare’s case. Id. at 1076.
In State v. Williams, 10-51 (La. App. 5 Cir. 7/27/10), 47 So.3d -467, 475, writ denied, 10-2083 (La. 2/18/11), 57 So.3d 330, defendant was charged with possession of a firearm by a convicted felon. The firearm along with marijuana and counterfeit cocaine were found in defendant’s car. On appeal, defendant argued that the marijuana and the counterfeit cocaine were inadmissible as other crimes evidence. This court held that the evidence was admissible because the narcotics possession was part of a continuing chain of events because the police observed the marijuana, counterfeit cocaine, and the firearm simultaneously.
[12] We find that the complete scientific analysis report is admissible res gestae evidence. Not only were all the drugs found contemporaneously on defendant, but they were in the same bag and some of them were mixed together. The references to the other drugs found in defendant’s possession (methamphetamine, methadone, and fentanyl) constituted an integral part of defendant’s charges for possession of heroin and possession of cocaine, and introduction of the full analysis of those drugs presented a complete narrative to the jury. This court has previously approved the admission of other crimes evidence when it was related and intertwined with the charged offense(s) to such an extent that it forms a complete presentation of the evidence on the charged offense(s).
[13] Further, defendant failed to show that the probative value substantially outweighed the danger of unfair prejudice pursuant to La. C.E. art. 403. Defendant asserts that the full report containing reference to methadone and fentanyl resulted in unfair prejudice because fentanyl is "highly addictive and deadly," and as a result, the jury would be unduly swayed to convict him due to the "notorious nature of 8fentanyl." We disagree. The evidence of the other crimes did not affect the accused’s character. If the jury found that defendant possessed the heroin and cocaine, the possession of all the drugs were part of a whole, and therefore, the jury would attribute all or none of the criminal conduct to defendant. We find nothing to reflect that the purpose of the full report was to depict defendant as a bad man or to prejudice defendant because the drugs also contained fentanyl and methadone.
Accordingly, we find the trial court did not abuse its discretion in denying defendant’s request to redact the scientific analysis report.
ERRORSPATENT
We have reviewed the record for errors patent according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).
[14, 15] First, there is a discrepancy regarding the concurrent nature of defendant’s sentences. The minute entry states, "The Court ordered that the above sentence is to run concurrently with each count and any or every sentence the Defendant may be serving." The Uniform Sentencing Commitment Order states that the sentence is concurrent with "each count and any or every sentence the Defendant may be serving." The sentencing transcript, however, reflects that the trial court ordered defendant’s sentences to run concurrently with each other and "concurrently with any other sentence." When there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
La. C.Cr.P. art. 879 provides that "[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence." This court has found that the "open-ended" statement that a sentence be served with "any other sentence" is distinguishable from a sentence ordered to be served concurrently with "any Sentence [the defendant] may be serving," and requires correction. 9 State v. Lavigne, 22-282 (La App. 5 Cir. 5/24/23), 365 So.3d 919, 962. See also, State v. Nellon, 18-385 (La. App. 5 Cir. 12/19/18), 262 So.3d 441; State v. Wiley, 16-645 (La. App. 5 Cir. 4/12/17), 216 So.3d 393, 400.
Upon review and consistent with previous decisions from this court, we find that defendant’s sentences are indeterminate because the trial court did not specify whether the sentences were ordered to run concurrently with specific sentences imposed or simultaneously with any other sentences that defendant may have been serving at the time of his sentencing. Accordingly, we vacate defendant’s sentences and remand this matter to the trial court for resentencing.
[16] Second, there is an issue regarding compliance with La. C.Cr.P. art. 875.1. On August 18, 2022, when defendant was sentenced, the court ordered defendant to pay costs, fines, and fees and stated that the court would hold an ability to pay hearing one year after defendant’s release from the Department of Corrections.
La. C.Cr.P. art. 875.1 requires the court to conduct a hearing to determine whether payment of any fine, fee, cost, restitution, or monetary obligation would cause substantial financial hardship to defendant or his dependents. La. C.Cr.P. art. 875.1 C states:
(1) Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall conduct a hearing to determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. The court may consider, among other factors, whether any victim of the crime has incurred a substantial financial hardship as a result of the criminal act or acts and whether the defendant is employed. The court may delay the hearing to determine substantial financial hardship for a period not to exceed ninety days, in order to permit either party to submit relevant evidence.
(2) The defendant of the court may waive the judicial determination of a substantial financial hardship required by the provisions of this Paragraph. If the court waives the hearing on its own motion, the court shall provide reasons, entered upon the record, for its determination that the defendant is capable of paying the fines, fees, and penalties imposed without causing a substantial financial hardship. [Emphasis added]
[17] 10In this case, the court delayed the hearing to determine defendant’s financial hardship until one year after defendant’s release from the Department of Corrections. The trial court’s order delaying the financial hardship hearing exceeds the ninety days allowed by La. C.Cr.P. art. 875.1. In addition, there is no waiver of the judicial determination of financial hardship. Accordingly, due to the requirements, of La. C.Cr.P. art. 875.1, we vacate the financial obligations imposed on defendant, and remand this case for compliance with La. C.Cr.P. art. 875.1 upon resentencing. State v. Douglas, 22-752 (La. App. 3 Cir. 2/23/23), 358 So.3d 580; State v. Gant, 54,-837 (La. App. 2 Cir. 1/11/23), 354 So.3d 824, 832; State v. Cormier, 23-24 (La. App. 3 Cir. 1/4/22), 2023 WL 5950870.
DECREE
For the foregoing reasons, we affirm defendant’s convictions, vacate defendant’s sentences, and remand for resentencing, and to comply with La. C.Cr.P. arts. 875.1 and 879.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED