Opinion
NUMBER 2012 KA 0559
2013-09-13
STATE OF LOUISIANA v. D'JUANIELLE DIGGS
J. Phil Haney District Attorney Counsel for Plaintiff/Appellee State of Louisiana Walter J. Senette, Jr. Assistant District Attorney Franklin, LA Walter J. Senette, Jr. Assistant District Attorney Franklin, LA Counsel for the State Gwendolyn Kay Brown Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant D'Juanielle Diggs
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Sixteenth Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
Docket Number 2008-177724 Section A
Honorable Gerard B. Wattigny, Judge Presiding
J. Phil Haney
District Attorney
Counsel for Plaintiff/Appellee
State of Louisiana
Walter J. Senette, Jr.
Assistant District Attorney
Franklin, LA
Walter J. Senette, Jr.
Assistant District Attorney
Franklin, LA
Counsel for the State Gwendolyn Kay Brown
Louisiana Appellate Project
Baton Rouge, LA
Counsel for Defendant/Appellant
D'Juanielle Diggs
BEFORE: PARRO, GUIDRY AND DRAKE, JJ.
GUIDRY, J.
The defendant, D'Juanielle Diggs, was charged by bill of information with one count of possession with intent to distribute a schedule II controlled dangerous substance (cocaine), a violation of Louisiana Revised Statutes 40:967A(1). He pled not guilty and, following a jury trial, was found guilty as charged. The State filed a multiple offender bill of information. The defendant agreed with the allegations of the bill and was adjudicated a second-felony habitual offender. He was sentenced to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant did not appeal in a timely manner, but was granted an out-of-time appeal. On appeal, he argues that the evidence was insufficient to support his conviction and that the district court erred in denying his challenge for cause of a prospective juror. For the following reasons, we affirm the defendant's conviction and habitual offender adjudication. Finding one sentencing error, we amend the defendant's habitual offender sentence and affirm as amended.
The defendant's name appears as "D'Juanille Diggs" on the bill of information; however, the signatures on the various pleadings filed by the defendant appear as "D'Juanielle Diggs."
The matter first proceeded to trial on October 19, 2009; however, a mistrial was granted after a witness for the State referenced other arrests of the defendant. The defendant's new trial began on October 21, 2009.
The defendant's predicate offense was set forth as a June 26, 2003 conviction for possession with intent to distribute cocaine under Sixteenth Judicial District Court for the Parish of St. Mary docket number 03-161,724,
FACTS
On August 14, 2008, around 8:45 p.m., Agent Duval Arthur, III, Lieutenant Scott Anslum, and Agent Jeremy Green, officers with the St. Mary Parish Sheriff's Office who specialize in narcotics investigations were patrolling the intersection of Gumpoint Lane and Thomas Street, in Franklin, Louisiana, which was considered to be a high drug and crime area. Three black men were standing on the corner of Gumpoint Lane and Thomas Street in front of a building. When the men observed the officer's unit drive into the intersection, two of them started to quickly walk away in separate directions. The other man, who was the defendant, started backing up towards the building. Agent Arthur observed the defendant place his right hand into his front right pants pocket, turn his body away from the officers, and toss a set of keys and a Ziploc bag underhand toward the building. The Ziploc bag had approximately nine rocks of crack cocaine inside, broken down into $20 rocks. Agent Arthur placed the defendant under arrest. The other two men were detained, but released from the contact stop as no illegal items were located in their possession.
SUFFICIENCY OF THE EVIDENCE
In his first assignment of error, the defendant contends that the evidence is insufficient to support his conviction for possession of cocaine with intent to distribute. Specifically, the defendant contends that the evidence presented by the State failed to establish the requisite element of intent to distribute the cocaine.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La. C. Cr. P. art. 821B. The Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Petitto, 12-1670, pp. 4-5 (La. App. 1 Cir. 4/26/13), 116 So. 3d 761, 766. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test: "assuming every fact to be proved that the evidence tends to prove in order to convict," every reasonable hypothesis of innocence must be excluded. La. R.S. 15:438. The reviewing court is required to evaluate the circumstantial evidence in the light most favorable to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Smith, 03-0917, p. 5 (La. App. 1st Cir. 12/31/03), 868 So.2d 794, 798-99.
To support a conviction for the crime charged, the State had to prove beyond a reasonable doubt that the defendant: 1) knowingly possessed the controlled dangerous substance (cocaine); and 2) had the intent to distribute the controlled dangerous substance. See La. R.S. 40:967A(1); see also Smith, 03-0917 at p. 5, 868 So.2d at 799.
The defendant does not contest the requisite element of possession or that the substance recovered tested positive for crack cocaine. Rather, he argues that the State failed to prove that he had the requisite intent to distribute the cocaine. Intent to distribute may be inferred from the circumstances. Factors useful in determining whether the State's circumstantial evidence is sufficient to prove intent to distribute include: (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant's actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. Smith, 03-0917 at pp. 7-8, 868 So.2d at 800.
In the absence of circumstances from which an intent to distribute may be inferred, mere possession of cocaine is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. For mere possession to establish intent to distribute, the State must prove that the amount of the drug in the possession of the accused and/or the manner in which it was carried is inconsistent with personal use only. Smith, 03-0917 at p. 8, 868 So.2d at 800.
The defendant did not testify or call any witnesses at trial. The State introduced the testimony of Agent Arthur and Lieutenant Anslum, both experienced narcotics officers. Both officers testified that the lack of some device on his person to smoke the crack cocaine, such as a crack pipe, factored into their determination that the defendant was a dealer rather than a typical crack user. The officers also testified that the packaging and quantity of the rocks of crack cocaine was consistent with what they observe with street-level sales. Lieutenant Anslum explained that crack users generally have one or two unpackaged rocks on their person, in contrast to the nine rocks the defendant had inside of the Ziploc bag. He further explained that individually packaging each rock is rare for dealers in St. Mary Parish. According to Agent Arthur, officers constantly received complaints that illegal drug sales were taking place in the area where the defendant was located. The rocks of crack cocaine that he recovered were broken into $20 rocks, with a total street value of $180.
Viewing the totality of the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant intended to sell the crack cocaine in the Ziploc bag recovered by Agent Arthur. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, pp. 1-2 14 (La. 11/29/06), 946 So.2d 654, 662. Further, the jury rationally rejected the hypothesis of innocence presented by the defendant that he did not intend to distribute the rocks of crack cocaine. An appellate 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. State v. Calloway, 07-2306, p. 1 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Accordingly, this assignment of error is without merit.
CHALLENGE FOR CAUSE
In his second assignment of error, the defendant argues that the district court erred in denying his challenge for cause to strike a potential juror, Shayna Foret. Specifically, the defendant contends that Foret was not qualified to serve as a juror in the defendant's retrial when she had previously been disqualified and excused after the voir dire proceedings at his first trial. The defendant argues that the district court's rehabilitation of Foret was inadequate. He notes that he used a peremptory challenge to strike Foret and exhausted his total number of peremptory challenges. Alternatively, the defendant argues that his trial counsel rendered ineffective assistance in his voir dire examination of Foret.
Louisiana Code of Criminal Procedure article 797 provides, in pertinent part, the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of partiality. La. C. Cr. P. art. 797(2). When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. Yet, if after subsequent questioning, or rehabilitation, the juror exhibits the ability to disregard previous views and make a decision on the evidence presented at trial, the challenge is properly denied. When addressing whether a challenge for cause should be granted, the district court judge must look at the juror's responses during his or her entire testimony, not just isolated answers. State v. Sparks, 88-0017, p. 24 (La. 5/11/11), 68 So.3d 435, 461, cert. denied, __U.S.__, 132 S.Ct. 1794, 182 L.Ed,2d 621 (2012). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La. App. 1st Cir.), writ denied, 564 So.2d 318 (1990). However, a district court's ruling on a motion to strike jurors for cause is afforded broad discretion because of the court's ability to get a first-person impression of prospective jurors during voir dire. State v. Brown, 05-1676, p. 5 (La. App. 1st Cir. 5/5/06), 935 So.2d 211, 214, writ denied, 06-1586 (La. 1/8/07), 948 So.2d 121.
Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. This is because an erroneous ruling depriving an accused of peremptory challenges violates his substantial rights and constitutes reversible error. To prove there has been an error warranting reversal of a conviction, a defendant need only show: (1) the district court's erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Kang, 02-2812, p. 3 (La. 10/31/03), 859 So.2d 649, 651-52. Because the defendant in this case exhausted all twelve of his peremptory challenges, we need only consider the issue of whether the district court judge erroneously denied the defendant's challenge for cause contested herein. See La. C. Cr. P. art. 799.
During the voir dire proceedings at the defendant's first trial, Foret informed the court that her husband was a state trooper and worked in Houma, Louisiana. Foret responded "no" when asked the question whether her husband being a state trooper would affect her impartially as a juror. Defense counsel then asked Foret if she would give more credibility to police officer testimony because of her husband's position. In response, Foret said that she probably would and agreed that she probably really couldn't render a fair decision in this case[.] Defense counsel challenged Foret for cause, and the district court excused her. However, the defendant was granted a new trial, and Foret was again selected as a potential juror.
Two days later at the defendant's retrial, the following colloquy between defense counsel and Foret took place during voir dire:
Q: Miss Foret [sic], you were on the panel Monday in this case And when I questioned you at that time, you stated that - your response to my questions was that you felt as "though you would have a difficult time in this case, because your [husband is] a state trooper, he knows the undercover agents, you know the undercover agents, and I think occasionally your husband does seme
A: No.
Q: No. But he knows the agents?
A: Yes,
Q: Okay. And based on that, you said at that time on Monday that you would probably have a difficult time in rendering a fair decision in this case; is that correct?
A: Um-hmm.
Q: And is that still your position?
A: Yes, sir.
The State and defense counsel then approached the bench per the State's request. The State argued that it did not recall Foret saying she knew agents in this case and that was not the question that defense counsel asked Foret during voir dire proceedings at his first trial The court asked Foret if she knew any of the agents in this case and whether the fact that she and her husband were friends with narcotics agents would affect her ability to be fair. She responded, "Well, I could be fair. I could be fair, because I don't know anyone that - like, it's not like I believe someone else. I could be fair to someone that's testifying. But if I knew them, then I probably wouldn't be able to be fair." She explained that she did not know the defendant or any of the officers involved in the instant case and that she could be fair.
The defendant challenged Foret for cause, but the district court found no basis to exclude her and denied the challenge. The defendant subsequently used a peremptory challenge to excuse Foret
A district court's ruling on whether to seat or reject a juror for cause will not be disturbed unless a review of the voir dire as a whole indicates an abuse of the great discretion accorded to the district court, Martin, 558 So.2d at 658. Thus, only where it appears that the judge's exercise of that discretion has been arbitrary or unreasonable, resulting In. prejudice to the accused, will the ruling of the district court be reversed. See State v. Lee, 93-2810, p. 9 (La. 5/23/94), 637 So.2d 102, 108. If a prospective juror is able, after examination by counsel and the court, to declare to the court's reasonable satisfaction that he is able to render an impartial verdict according to the law and evidence, it is the district court's duty to deny a challenge for cause. See State v. Claiborne, 397 So.2d 486, 489 (La. 1981). Herein, despite her statements at the first voir dire proceeding that she would give more credibility to the testimony of police officers, Foret clarified at retrial that she would only give more credibility to the testimony of officers that she knew. She made it clear that she did not know any of the officers who would be testifying in defendant's trial and, thus, she could be fair and impartial.
We find that the totality of the responses by the juror in question demonstrated her willingness and ability to decide this case impartially according to the law and evidence, and as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. Thus, after a review of the record of voir dire as a whole, we conclude that the district court did not abuse its broad discretion in denying the defendant's challenge for cause as to prospective juror Foret.
The defendant argues in the alternative that his trial counsel was ineffective because he failed "to accurately recall the basis for Ms. Foret's partiality and to highlight that basis through his questioning of her." He claims that "competent counsel" would have revealed to the court "any bases for bias which a prospective juror possessed that would render that juror unable to serve in his client's case in a fair and impartial manner."
A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337, p. 10 (La. App. 1st Cir. 11/8/96), 684 So.2d 432,438.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or "a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to show prejudice, the defendant must demonstrate thatj but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Felder, 00-2887, p. 11 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369-70, writ denied, 01-3027 (La. 10/25/02), 827 So.2d 1173. 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. State v. Serigny, 610 So.2d 857, 860 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
Foret was excused at the defendant's first trial because she indicated that she would give more credibility to the testimony of police officers due to her husband's position as a state trooper. At retrial, defense counsel recalled Foret making a statement that she would have a difficult time being fair and impartial because her husband knew other officers. Although defense counsel did not correctly recall the exact statement made by Foret at the first trial, his "failure to accurately recall the basis for Ms. Furets partiality" did nor prejudice the defendant. The basis for her partiality was exposed when she was questioned by the court. It was clear after her examination by the court that as long as she did not know the officers testifying, she would not find their testimony to be more credible than that of other witnesses. Foret clearly stated that she did not know any of the officers who would be testifying in this case. Therefore, the defendant has failed to make the required showing of sufficient prejudice and, as such, his claim of ineffective assistance of counsel is without merit. Accordingly, this assignment of error is without merit.
SENTENCING ERROR
Under Louisiana Code of Criminal Procedure article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 05-2514, p. 18 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So,2d 1277. After a careful review'of the record, we have found a sentencing error. Any person who violates Louisiana Revised Statutes 40:967A(1) as to cocaine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence: and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars. La. R.S. 40:967B(4)(b).
As applicable here, any person who, after having been convicted within this state of a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony/shall be punished as follows: if the second' ielony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1A(1)(a) (prior to amendment by 2010 La. Acts, No. 911, § 1 and 2010 La. Acts, No. 973, § 2).
The district court sentenced the defendant, as a second-felony habitual offender, to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. The term of the habitual offender sentence imposed on defendant was within the range provided by the habitual offender law, but the district court improperly restricted the possibility of parole for the entirety of the defendant's sentence. Louisiana Revised Statutes 40:967B(4)(b) mandated only that the first two years of the sentence be without benefit of parole, and Louisiana Revised Statutes 15:529.1G does not restrict parole eligibility.
Pursuant to Louisiana Code of Criminal Procedure article 882A, which provides that an appellate court may correct an illegal sentence on review, we amend the defendant's habitual offender sentence to strike the portion restricting his parole eligibility for the entirety of the sentence and to reflect that only the first two years of the sentence shall be served without the benefit of parole. We affirm the sentence as amended. See State v. Charles, 00-066, pp. 5-6 (La. App. 1st Cir. 12/22/00), 775 So.2d 667, 670, writ denied, 01-1067 (La. 1/4/02), 805 So 2d 1186. see also State v. Thomas, 12-0177 (La. App. 1st Cir. 12/28/12), 112 So. 3d 875.
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE AMENDED AND AFFIRMED AS AMENDED.