Opinion
2014 KA 0283
11-07-2014
STATE OF LOUISIANA v. DERRICK RAY GREEN
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana Trial Court Number 12-12-0021
Honorable Donald R. Johnson, Judge Presiding
Hillar C. Moore, III
Christopher J.M. Casler
Baton Rouge, LA
Counsel for Appellee,
State of Louisiana
Powell Miller
New Orleans, LA
Counsel for Defendant/Appellant,
Derrick Ray Green
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
The defendant, Derrick Green, was charged by bill of information with illegal carrying of a weapon while in the possession of a controlled dangerous substance (marijuana), a violation of LSA-R.S. 14:95E. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to five years at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, arguing that the sentence imposed by the district court is excessive. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
On October 4, 2012, around 11:00 p.m., Baton Rouge Police Department Detectives Kevin Istre and Eric Burkett were conducting a proactive criminal patrol when they observed multiple subjects loitering in the parking lot of an apartment complex on 268 East Drive. The detectives pulled into the parking lot and exited their unmarked vehicle. Detective Istre, who was wearing his police uniform, approached a 1990's model Chevrolet Tahoe that was backed into a parking spot. Detective Istre approached the Tahoe from the front passenger's side and saw two people sitting inside. According to Detective Istre, when the person sitting in the driver's seat recognized Detective Istre's uniform, "his eyes got big," and he made a throwing motion out of the driver's side window with his left hand. That individual was later identified as the defendant.
Detective Istre detected an overwhelming odor of burnt marijuana as he got closer to the Tahoe. He contacted the two individuals sitting inside through the passenger window and advised them of their Miranda rights. He then walked around to the driver's side of the Tahoe and asked if there were any weapons in the vehicle. The defendant advised that there was a firearm in the vehicle that belonged to him. Both the defendant and the passenger were removed from the vehicle, and Detective Istre took possession of the firearm, which was on the floorboard where the defendant was sitting. Detective Burkett showed Detective Istre a partially burned marijuana cigar and indicated that he saw the defendant throw it out of the vehicle. He had recovered it approximately one or one-and-one-half minutes after it was thrown. The cigar was analyzed by the Louisiana State Police Crime Lab and determined to contain marijuana. The firearm was also analyzed, and the defendant could not be excluded as a contributor to the DNA profile on the firearm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
EXCESSIVE SENTENCE
In his sole assignment of error, the defendant argues that the district court erred in imposing an unconstitutionally excessive sentence. Specifically, he contends that his sentence is excessive because he is a non-violent offender with no prior felony convictions and will be a burden to taxpayers. He also complains that he is a victim of the legislature's failure to assign a sentence meaningfully tailored to his guilt, the gravity of the offense, and the circumstances of the crime.
The record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant orally moved for reconsideration of the sentence. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. LSA-C.Cr.P. art. 881.1E. Thus, the defendant is procedurally barred from having this assignment of error reviewed. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So. 2d 1141, 1142-43 (en banc per curiam).
CONVICTION AND SENTENCE AFFIRMED.