Opinion
No. 08-518.
November 5, 2008. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 138,206-B, HONORABLE WILLIAM BENNETT, DISTRICT JUDGE.
Charles A. Riddle, III, District Attorney — 12th Judicial District Court, Anthony Francis Salario, Assistant District Attorney — 12th Judicial District Court, Marksville, LA, COUNSEL FOR: Plaintiff/Appellee — State of Louisiana.
Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, COUNSEL FOR: Defendant/Appellant — Miquel Finch.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
The Defendant, Miquel Finch, appeals his jury conviction for distribution of a controlled dangerous substance, methamphetamine, a violation of La.R.S. 40:967(A)(1), on the basis of insufficiency of the evidence. He was adjudicated a third felony offender and sentenced as a habitual offender to twenty years at hard labor.
We affirm.
FACTS
The Defendant was convicted of distribution of methamphetamine as the result of a controlled drug buy in Bunkie, Louisiana. On June 8, 2006, Detective Chad Jeansonne was in charge of a series of controlled buys that were planned for that night. The controlled buys were done by Tonya James and a confidential informant. Ms. James was employed by the Louisiana Office of Probation and Parole. For safety purposes, Detective Jeansonne maintained visual contact on James and her activities by following her in an unmarked vehicle.
Detective Jeansonne testified that he was parked three or four blocks away from James and used binoculars to maintain surveillance on her.
Detective Jeansonne instructed James and the informant to go to the E-Z Shop gas station to buy a few items. While parked at the gas station, James was approached by an individual named Brandon Butler, a.k.a. "H-Town." When James attempted to make a buy with Butler, he told her that he did not have anything to sell, but that he did have a friend that could get some for her. Mr. Butler made contact with someone named "Fish" over the phone and then got into the car and told her where to go. The group ended up at a residence located on the corner of Louisiana and Rose Streets. Once at the residence, the seller approached James as she was seated in the vehicle. The seller then opened the door to the vehicle, which triggered the interior dome light, and then the seller sat in the back seat. After they exchanged a few words, the seller sold two pills to James. Approximately fifteen to thirty minutes thereafter, Detective Jeansonne presented James with a photographic line up and she identified the Defendant as the person who sold her narcotics. James signed and dated the photograph of the Defendant and also wrote "A/K/A Fish" beside the Defendant's photograph. This photograph was introduced into evidence as State's Exhibit S-1. The exhibit shows the Defendant with short hair cut in a clean "tapered" fashion.
The Defendant was arrested on December 3, 2006, six months after the night of the buy, and his photograph was taken upon booking. This photograph was entered into evidence as State's Exhibit S-5 and shows the Defendant with his hair styled in short dread-like twists.
Insufficiency of the Evidence
In his sole assignment of error, the Defendant contends that the evidence, even viewed in a light most favorable to the prosecution, is insufficient to prove his identity as the person who sold drugs to the undercover agent.
The Defendant also appeals the habitual offender adjudication. That adjudication was brought in a separate proceeding with a distinct docket number, therefore, we will address it in the opinion styled " State of Louisiana v. Miquel Finch, Docket No. 08-519.
As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La. 1983); State v. Brady, 414 So.2d 364, 365 (La. 1982); State v. Long, 408 So.2d 1221, 1227 (La. 1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La. 1988) (generally, one witness's positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App. 2d Cir. 10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La. 5/14/99), 745 So.2d 12.State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002).
At trial, James testified that she was positive she bought drugs from the Defendant and made an in-court identification. James further testified that she had not met the Defendant before or after the buy at issue. James testified that she remembered the Defendant's face and that she was able to get a good look at the Defendant's face while the dome light was on in the car.
James was questioned about the identification of the Defendant as follows:
Q. When he got in and the light came on were you able to positively look at him and look at his features and so forth?
A. Oh, yes.
Q. Well, you just pointed him out, are you positive that, that's in fact Miquel Finch the person who got into the car with you that night?
A. Yes. His hair was a little bit shorter and he had earrings on, but I mean it's still . . . the facial features are the same. That was him.
Q. Okay. And when you're talking to him are you turning completely around?
A. I was completely turned in the seat and looking directly at him.
James further testified that she conducted several undercover drug purchases that night, and all the individuals selling drugs were black individuals. When asked if there were any distinguishing characteristics among the suspects, she answered, "No, sir."
Detective Jeansonne testified that he was parked four blocks down the street from James and used binoculars to keep an eye on the vehicle and the house. He testified that it was dark but there was street lighting. He indicated that he did not see many details, "I could just see, you know, the silhouette of the people, their heads and so forth, I knew there were possibly four individuals in the car." Detective Jeansonne also testified that he knew of the Defendant through conversation but did not know him on a personal level before the date of the buy. The Detective made an in-court identification of the Defendant. He further indicated that the Defendant's hair was a little bit longer on the night of the buy, but that he was positive that the Defendant is the person who entered the car with James.
April Butler, a friend of the Defendant's wife, testified that she has seen the Defendant wearing his hair in twists or dreads for the past few years. The Defendant's wife, Patsy Finch, similarly testified. When Mrs. Finch was presented with Photo S-1, she stated that it was an old picture of the Defendant. Mrs. Finch further stated that in June 2006, she and her husband were separated and that during this period of separation he was not living with her at the residence located on the corner of Louisiana and Rose Streets.
James was called on rebuttal and presented with Photo S-5. She was questioned as follows:
Q. Marked as Exhibit 5, this is a photograph that appears to be labeled in that it was taken in December 1st of 2006, there's been some testimony that Mr. Finch previously had dread locks in 2006, does that photograph resemble his hair at the time that he was in your vehicle?
A. Well, I . . . first of all I wouldn't consider that dread locks. I mean dreads to me is really long. Secondly, I testified that his hair was a little bit longer than what it is now and it is and I noticed that there's a difference and third I'd . . . like I said I pay attention to the facial features when I'm doing this job and when I'm working undercover because people wear hats, they can change their hair. That's not what stands out to me when I'm paying attention to somebody that I'm buying narcotics from. I mean I'm paying attention to what I'm doing, but at the same time I'm making mental notes to purposely pay attention to their nose, to their eyes, to their facial features because that's what is probably not going to change. Hair and clothing and all that stuff is stuff that can change.
James went on to say that she made note of the Defendant's nose and, in particular, she noted that his nostrils flared out more than most other people.
Detective Jeansonne was also called on rebuttal. He testified that on the night of the buy, the Defendant's hair was a little longer than the tapered look the Defendant had at trial. He testified that looking through his binoculars nearly 200 yards away, he could tell that the Defendant's hair looked curly or wavy.
The evidence tends to prove that Detective Jeansonne saw the Defendant enter the car with James and the informant on the night of the buy. James and the informant were instructed to drive to a residence located on the corner of Louisiana and Rose Streets, where the Defendant's wife lived at the time. Detective Jeansonne testified that he remembered seeing "the Defendant being on the outside of the home or walking up to the vehicle." Detective Jeansonne stated that through his binoculars he could tell the Defendant's hair was wavy and curly. James testified that she was able to get a good look at the Defendant's face and looked directly at him while he was in the car. Fifteen to thirty minutes after the buy, James identified the Defendant in a photo line-up. Both James and Detective Jeansonne were positive when identifying the Defendant at trial and stated that the Defendant's hair was a little longer on the night of the buy but that his facial features were the same.
In State v. Stringer, 06-800 (La.App. 3 Cir. 12/6/06), 949 So.2d 464, writ denied, 07-04 (La. 9/14/07), 963 So.2d 996, this court stated, "[c]redibility determinations rest with the jury who, as the trier of fact, may accept or reject the testimony of any witness in whole or in part." Id. at 486-87. The jury must have believed the testimony of James and Detective Jeansonne when they identified the Defendant as the person who sold drugs to James. Accordingly, the evidence supports the Defendant's conviction.
Error Patent
The court minutes reflecting the jury's verdict state, "THE JURY RETURNED THE FOLLOWING VERDICT WHICH WAS READY [sic] BY THE MINUTE CLERK: "THE DEFENDANT IS FOUND GUILTY TO THE CHARGE OF "POSSESSION WITH INTENT TO DISTRIBUTE SCHEDULED [sic] II." The trial transcript and the jury verdict form both indicate the jury returned a verdict of guilty of distribution of methamphetamine. Thus, the trial court is instructed to amend the minutes of the jury's verdict to correctly reflect that the Defendant was convicted of distribution of methamphetamine. See State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201.
CONCLUSION
The Defendant's conviction and sentence are affirmed. The trial court is instructed to amend the minutes of the jury's verdict to correctly reflect that the Defendant was convicted of distribution of methamphetamine.
AFFIRMED WITH INSTRUCTIONS.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules — Courts of Appeal.