Opinion
NUMBER 2012 KA 1845
2013-09-13
STATE OF LOUISIANA v. MURLIN ANTHONY JAMES
Joseph Waitz, District Attorney Ellen Daigle Doskey, Asst. D.A. J. Christopher Erny, Asst. D.A. Houma, LA Attorneys for Appellee State of Louisiana Frank Sloan Louisiana Appellate Project Mandeville, LA and Bertha Hillman Louisiana Appellate Project Thibodaux, LA Attorney for Appellant Defendant - Murlin Anthony James
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne, Louisiana
Trial Court Number 601,199
Honorable Randall J. Bethancourt, Judge
Joseph Waitz, District Attorney
Ellen Daigle Doskey, Asst. D.A.
J. Christopher Erny, Asst. D.A.
Houma, LA
Attorneys for Appellee
State of Louisiana
Frank Sloan
Louisiana Appellate Project
Mandeville, LA
and
Bertha Hillman
Louisiana Appellate Project
Thibodaux, LA
Attorney for Appellant
Defendant - Murlin Anthony James
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WELCH, J.
The defendant, Murlin Anthony James, was charged by bill of information with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1). The defendant entered a plea of not guilty. After a trial by jury, he was found guilty of the responsive offense of attempted possession with intent to distribute marijuana. See La. R.S. 40:979 & 14:27. The State filed a habitual offender bill of information and the trial court adjudicated the defendant a second felony habitual offender and sentenced him to seven and one-half years imprisonment at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals, challenging the admissibility of police officers' lay and expert opinion testimony and the trial court's denial of his motion to sever his trial from the trial of the codefendant. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.
The defendant was charged and tried along with Darryl Paul Sylvester, herein referred to as codefendant. The codefendant was charged with possession with intent to distribute marijuana and found guilty as charged. The codefendant also filed an appeal with this court in State v. Sylvester, 2012-1846 (La. App. 1st Cir. _/_/13), __ So.3d __, challenging the trial court's denial of his motion to suppress.
The defendant's habitual offender adjudication is based on 2010 guilty plea convictions of possession with intent to distribute marijuana and possession of proceeds from drug transactions.
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STATEMENT OF FACTS
In early 2010, the Terrebonne Parish Sheriff's Office started an operation called "Nickel and Dime," targeting street-level drug dealers in the parish. As part of the operation, police conducted controlled buys involving the purchase of marijuana. As a result of the controlled buys, the codefendant had an outstanding warrant for his arrest for distribution of marijuana.
On the night of the instant offense, March 4, 2011, Agents Russell Madere and Dallas Bookenberger of the narcotics division of the Terrebonne Parish Sheriff's Office (TPSO) were conducting street-level drug enforcement and criminal activity patrol in the perimeter of a parade route in Houma. As they approached the 500 block of Eliza Street between 8:00 and 9:00 p.m., they observed two black male subjects standing in the street next to a parked vehicle. As the officers approached, they recognized both the defendant and the codefendant. The officers smelled marijuana in the area, as they travelled in an unmarked police unit with their car windows down.
When it appeared that the men had no intention of moving out of the roadway, Agent Madere pulled his vehicle close to them, parked, and activated his emergency blue lights to investigate further. According to Agent Bookenberger, when the officers stopped their vehicle, the defendant and codefendant became visibly nervous. Agent Madere asked the defendant what he was doing in the street, and the defendant began to walk in front of the officer's vehicle around the driver's side. As Agent Bookenberger stepped out of the vehicle and was closing the door, he referred to the codefendant by his street name and asked the codefendant, "What's up." The codefendant put his hands in his pockets and began to run, and Agent Bookenberger began to chase him. Agent Bookenberger summoned Agent Madere's assistance as the codefendant jumped over two fences, falling after each jump. When the codefendant fell as he flipped over the second fence, he stood up and Agent Madere was ultimately able to use his taser to subdue him. As the codefendant continued to struggle and resist, Agent Bookenberger used his taser again and was then able to handcuff the codefendant.
At some point, Agent Madere yelled out to Agents Joseph Renfro and Jeff Lirette of the Houma Police Department, who had arrived at the scene, to detain the defendant. Agent Lirette yelled at the defendant, who was walking away from him, to stop. The defendant turned around and walked towards Agent Lirette, who grabbed the defendant by the arm. Agent Lirette observed that the defendant had a marijuana cigarette stuck behind his ear. Agent Lirette handcuffed the defendant and escorted him back to the scene. Along with the suspected marijuana cigarette, over three hundred dollars was recovered during the pat-down search of the defendant. Fifteen baggies of marijuana from the codefendant's lower right leg pants pocket were recovered during a pat-down search.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In a combined argument for the first two assignments of error, the defendant contends that the trial court erred in allowing a police officer to testify that the suspected marijuana was in fact marijuana. He notes that the State did not send the suspected marijuana seized in this case to the Louisiana State Police Crime Laboratory for scientific testing. The defendant first contends that the trial court abused its discretion in allowing Agent Madere to testify that he could identify the substance as marijuana after sniffing it while on the witness stand. The defendant contends that Agent Madere's testimony exceeds the intended scope of La. Code Evid. art. 701. Secondly, the defendant argues that the trial court erred in allowing Agent Derrick Collins to offer an expert opinion, over defense objection to his qualifications, that the substance in question was marijuana, again based on visual and olfactory examination. The defendant notes that Agent Collins does not have a degree in botany or any other science that would give him the expertise to give a reliable and trustworthy opinion as to the identification of the substance. Citing People v. Park, 72 I11.2d 203, 208, 20 Ill.Dec. 586, 589, 380 N.E.2d 795, 798 (1978) and Waltman v. Payne, 535 F.3d 342, 344 (5th Cir. 2008), the defendant contends that marijuana cannot be identified beyond a reasonable doubt by visual inspection "because of the number of plants whose gross morphological characteristics closely resemble Cannabis sativa," and because "certain strains of kenaf are virtually indistinguishable from marijuana by visual inspection." The defendant contends that the jurisprudence does not appear to allow the State to prove the elements of possession of marijuana beyond a reasonable doubt with an in-court identification of the suspected marijuana based on a police officer's visual and olfactory examinations of the substance. Further, the defendant argues that permitting nonexperts to identify illegal drugs on the witness stand with a sniff test contradicts the constitutional protection of requiring the State to establish guilt beyond a reasonable doubt. The defendant insists that this is an issue of first impression for this court and Louisiana. The defendant concludes that the trial error as to both witnesses was not harmless because their testimony was the only evidence to establish the identification of the substance at issue.
Louisiana Code of Evidence article 701 limits a lay witness's testimony in the form of opinions or inferences to those opinions or inferences that are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. See State v. LeBlanc, 2005-0885 (La. App. 1st Cir. 2/10/06), 928 So.2d 599, 603. However, only experts are allowed to give opinion testimony in areas of specialized knowledge: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." La. Code Evid. art. 702. A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) Was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness's observations; and (2) If erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. State v. LeBlanc, 928 So.2d at 603. The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 922, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.
A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to demonstrate that the person is an expert; a person may qualify as an expert based upon experience alone. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that Federal Rule of Evidence 702 imposes an obligation upon a trial judge to ensure that scientific testimony is relevant and reliable. The Daubert court listed several factors that a court could consider in determining the admissibility of an expert's testimony. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Some factors bearing on this analysis are whether: 1) a theory or technique can be or has been tested; 2) the theory or technique has been subjected to peer review or has been published; 3) there is a high known or potential rate of error; 4) there are standards controlling the technique's operation; and 5) the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 592-95, 113 S.Ct. at 2796-97. In State v. Foret, 628 So.2d 1116, 1123 (La. 1993), the Louisiana Supreme Court recognized that courts may rely on the standard enunciated in Daubert when evaluating the admissibility of expert scientific testimony in accordance with La. Code Evid. art. 702.
In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court found that a trial court may apply the Daubert factors when determining the admissibility of all expert testimony, not just scientific testimony. At the same time, the Court recognized a trial court's broad discretion in determining whether the specific factors in Daubert are reasonable measures of reliability in a particular case. The trial court's decision to admit or exclude expert testimony is subject to the "abuse of discretion" standard. Kumho, 526 U.S. at 152-54, 119 S.Ct. at 1176; State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).
Presence or absence of evidence, and weight of the evidence produced, are matters to be assessed by the factfinder. For example, there is no legal requirement for the State to test for fingerprints, produce fingerprint evidence, test certain evidence, or call certain witnesses to satisfy the elements of the offense at issue. State v. Cash, 2003-853 (La. App. 3rd Cir. 12/10/03), 861 So.2d 851, 855-56, writs denied, 2004-27 (La. 4/30/04), 872 So.2d 472 & 2004-232 (La. 5/7/04), 872 So.2d 1080. In State v. Williams, 471 So.2d 255, 263 (La. App. 1st Cir.), writ denied, 475 So.2d 1102 (La. 1985), this court found that the defendant's conviction for possession of marijuana under La. R.S. 40:966 was based on sufficient evidence, as the samples tested were sufficient to determine that the substance seized was marijuana. This court noted that defendant did not present testimony or evidence to indicate that not all the contraband seized was marijuana.
In State v. Hopson, 98-943 (La. App. 5th Cir. 3/30/99), 735 So.2d 81, writ denied, 99-1315 (La. 11/12/99), 749 So.2d 650, Billy LeBlanc, a technician with the St. Charles Parish Sheriff's Department, testified that he collected evidence at the crime scene. LeBlanc found a small container of what appeared to be crack cocaine and a shoe box of what he believed was marijuana. LeBlanc was present at the execution of a search warrant on the defendant's automobile. At that time he recovered from the back of the vehicle a white diaper with fifteen small plastic bags of a substance he identified as marijuana. Following an objection by the defense, the trial judge instructed the jury that the matter had not been tested and proven to be drugs. The defense elicited testimony that no lab tests were done on the material. Nevertheless, the witness testified that he had seen marijuana many times in his twenty-three years as a technician. In addition, a witness testified that in the presence of the defendant, the victim stated that he had marijuana to sell. The court noted that although the substances were not tested and positively identified as contraband, the jury could have reasonably concluded that the substances were indeed marijuana. Hopson, 735 So.2d at 84, 86.
In State v. Murphy, 2009-432 (La. App. 5th Cir. 11/24/09), 28 So.3d 496, 498-99, writ denied, 2010-0016 (La. 6/25/10), 38 So.3d 334, the defendant argued the evidence at trial was insufficient to prove he possessed clonazepam, since the State's witnesses only performed visual inspections of the pills seized from his shoe, and no chemical testing was done. The State responded that the identification of a controlled dangerous substance at trial does not require direct scientific evidence when circumstantial evidence establishes the identity of the substance beyond a reasonable doubt. Mr. Waguespack, an expert in forensic chemistry, testified he had worked in that field for forty years. He had been employed by the Jefferson Parish Sheriff's Office since 1994, and prior to that he worked in the New Orleans Police Department's Crime Laboratory. Mr. Waguespack testified he did not perform any chemical tests on the pills. Upon performing a visual examination, he determined the pills looked alike, and they were manufactured pharmaceuticals. He consulted a logo index issued by the Drug Enforcement Administration and an internet website called Just Drug Identification. Based on the color and shape of the tablets, as well as the numbering on them, Mr. Waguespack determined they were clonazepam, a Schedule IV drug. The court determined that even without the benefit of direct scientific evidence, the expert testimony of Mr. Waguespack was sufficient to show the pills contained clonazepam. Murphy, 28 So.3d at 499.
Further, the Third Circuit similarly found the evidence at the trial was sufficient to support the defendant's conviction for possession with intent to distribute hydrocodone in State v. Carter, 2007-1237 (La. App. 3rd Cir. 4/9/08), 981 So.2d 734, writ denied, 2008-1083 (La. 1/9/09), 998 So.2d 712. In that case, officers recovered pills from under the back seat of a police car after the defendant exited the vehicle. Carter, 981 So.2d at 743. At the trial, an expert in forensic chemistry testified that the pills contained hydrocodone. He stated he had not performed chemical analysis on the pills, but had identified them by visual inspection and comparison to pictures in a book. Additionally, a police officer testified he had seen similar pills in the past in connection with his job, and that the pills at issue were hydrocodone pills. Carter, 981 So.2d at 744. The Third Circuit found there was sufficient lay and expert testimony from which the jury could find beyond a reasonable doubt that the pills at issue were hydrocodone. Carter, 981 So.2d at 745.
The Louisiana Supreme Court has adopted the view of the federal courts that the " 'government need not introduce scientific evidence to prove the identity of a substance ... as long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal.' " State v. Harris, 2002-1589 (La. 5/20/03), 846 So.2d 709, 713. The Louisiana Supreme Court further found, "[i]dentification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance." Harris, 846 So.2d at 714 (citing United States v. Harrell, 737 F.2d 971, 978-79 (11th Cir. 1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985)). In State v. Knight, 298 So.2d 726 (La. 1974) the Louisiana Supreme Court found that the substance in question was properly introduced into the defendant's trial for distribution of marijuana, and held that the fact the expert did not specifically identify the substance as 'Cannabis Sativa L' (as marijuana was defined by the statute under which the defendant was convicted) went to the weight of the testimony rather than its admissibility. The court noted that no expert testimony whatsoever was introduced by the defendant to rebut the positive identification of the substance as marijuana or Cannabis Sativa. The Court further noted that the defense counsel was permitted the right of extensive cross-examination. Knight, 298 So.2d at 729.
In this case, Agent Madere testified that for six years he worked in the narcotics division of the TPSO conducting daily investigations in street-level narcotics with marijuana being one of the most common drugs investigated. When shown the evidence, without objection Agent Madere confirmed that it looked like the evidence he collected that evening. In identifying the substance as marijuana, Agent Madere testified (again without objection) that marijuana has a distinct smell. He noted that he had taken multiple training classes, specific to narcotics investigations, involving the burning of marijuana and deciphering the smell of fresh and burned marijuana. Agent Madere further testified that the marijuana in this case had a high potency based on the enhanced, pungent odor. When asked again on redirect examination to identify the substance, he was allowed to do so over the defendant's objection.
Agent Derrick Collins, who worked as a narcotics agent for the TPSO for seventeen years, also testified. Prior to working at the TPSO, Agent Collins worked in the narcotics division of a counter drug program for the Army and National Guard. Agent Collins had over twenty years of experience in narcotics investigations. His investigations involved various types and incorporated every facet of drug from marijuana to crystal methamphetamine to heroin. Agent Collins had a very extensive list of specialized training including Cannabis detection and Eradication, Advanced Technical Narcotics Operation, N.I.K. Polytesting and Narcotics Screening, and Field Tactical Operations, among several others. In addition to the specialized training, Agent Collins testified that he also received in-service and on-the-job training. The Cannabis Detection and Eradication course dealt with the detection of marijuana groves in fields, locating it, identifying it, and securing it. He further explained that N.I.K. testing involved a field test kit consisting of a presumptive test. Marijuana was the most common drug that his investigations dealt with. He testified that he had previously been qualified as an expert in the field of identification, packaging, and distribution of marijuana in every courtroom in the 32nd Judicial District Court and would more than likely be able to identify the substance. He never experienced any known failed identifications. Agent Collins indicated that scientific chemical testing was not necessary for the identification of marijuana.
The trial court accepted Agent Collins as an expert in the field of identification, packaging, and distribution of marijuana. During a trial recess, Agent Collins was given the opportunity to examine the evidence and determined that the fifteen individual baggies and the cigarette contained marijuana, without doubt. He noted the strong pungent odor, texture, and the presence of seeds and stems in indentifying the substances in the baggies as marijuana. He also pointed to the presence of seeds and a stem in identifying the substance contained in the cigarette as marijuana.
We note that Agent Lirette, who testified that he had experience conducting narcotics investigations, identified the cigarette as containing marijuana without objection. The defendant only objected to the State's attempt to have Agent Madere re-identify the evidence during redirect examination. The defendant did not object upon Agent Madere's initial identification of the marijuana and cross examined on the issue. Thus, the defendant arguably waived his right to seek review of the admissibility of Agent Madere's testimony based on his lack of contemporaneous objection. See La. Code Evid. art. 103(A)(1); La. Code Crim. P. art. 841. Nonetheless, we find that the trial court did not abuse its discretion in determining that it was acceptable for Agent Madere to testify based on his experience. Further, we find no abuse of discretion in the trial court's ruling that Agent Collins could testify as an expert witness. The Agent's expertise was derived from extensive experience and training of the sort that has been found to be sufficient in similar cases. The defendant could have conducted independent testing on the substance introduced by the State and the witnesses were subject to cross-examination. Based on the foregoing, we find no merit in assignments of error numbers one and two.
ASSIGNMENT OF ERROR NUMBER THREE
In the third assignment of error, the defendant argues that the trial court erred and/or abused its discretion in denying his motion to sever his trial from the codefendant's trial. The defendant relies on an affidavit referenced in his motion to reurge the motion to sever and introduced at the hearing on that motion, the codefendant stated that he never spoke to the defendant on the date in question and that the defendant had no knowledge of any marijuana recovered from the codefendant's person. The defendant contends that his prosecution in this case was entirely circumstantial and notes that the jury convicted him of the responsive offense of attempted possession of marijuana with intent to distribute. The defendant points out that the codefendant was unavailable to exculpate him at the trial since he was exercising his Fifth Amendment right not to testify. Citing State v. Turner, 365 So.2d 1352, 1354 (La. 1978) as authority, the defendant contends that the trial court abused its discretion in denying the severance.
Defendants who are jointly indicted are to be tried together unless the court finds that justice requires a severance. La. Code Crim. P. art. 704(2). The courts have permitted a severance to codefendants whose defenses are antagonistic to each other. Defenses are antagonistic when each defendant intends to exculpate himself by putting the blame for the offense on a codefendant. However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be present to justify a severance. Reversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. An accused is not entitled to a severance as a matter of right; the decision is one resting within the sound discretion of the trial judge. State v. Price, 93-0625, 93-0626 (La. App. 1st Cir. 3/11/94), 636 So.2d 933, 936-37, writs denied, 94-0742 (La. 6/17/94), 638 So.2d 1091 & 94-1566 (La. 10/14/94), 643 So.2d 159. Accordingly, a denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Whether "justice requires a severance" must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La. 1984); State v. Barkley, 412 So.2d 1380, 1382 (La. 1982).
On December 12, 2011, the defendant filed a motion to sever. At a hearing held that day, the defense noted that it would seek an affidavit by the codefendant as to how he would testify in the defendant's trial if the cases were severed. The trial court stated that the hearing would be continued on a later date. The hearing was continued four days later, December 16, and at that point the defense attorney still did not have an affidavit by the codefendant and the trial court denied the motion.
The defendant filed a motion to reurge the motion to sever. At the hearing on the motion, the defendant's attorney noted that the codefendant signed an affidavit indicating how he would testify at the defendant's trial if he were given the opportunity. The affidavit in pertinent part states: "I never spoke to Murlin James on Friday, March 4, 2011" and "Murlin James had no knowledge whatsoever as to any marijuana recovered from my person during the arrest made on Friday, March 4, 2011."
In State v. Turner, 365 So.2d at 1354, cited by defendant in his brief, the Louisiana Supreme Court stated in pertinent part: "Where it is clear from the record that a co-defendant would give exculpatory testimony if a severance were granted, the denial of a severance is an abuse of discretion." (citing La. Code Crim. P. art. 704, Official Revision Comment (c)(2)). However, as further noted by the court, the burden is on the movant to establish that the codefendant would, in fact, testify at a separate trial, and the exculpatory nature of his proposed testimony. Turner, 365 So.2d at 1354.
In Barkley, the Louisiana Supreme Court noted that, as in Turner, each defendant therein failed to establish (despite the testimony at the hearing on the motion to sever) the probability that the other would in fact testify at a separate trial and present exculpatory evidence. The court, noting that the proposed testimony by the codefendant (that both defendants had consensual intercourse with the victim) would have been a highly self-incriminating statement on the codefendant's part at Barkley's trial, found that the trial judge properly regarded as highly unlikely the codefendant's declaration that he would not invoke his constitutional privilege in a separate trial. The court further observed that the exculpatory evidence in that case (in which one defendant in order to testify at the trial of the other must place himself at the scene of the alleged crime and must admit several of the elements of the offense charged against him) is vastly different from exculpatory testimony such as, for example, that he and the codefendant were together in Texas at the time of the alleged crime. The court stated that denial of the opportunity to call a codefendant as the sole alibi witness may well be sufficiently prejudicial to establish an abuse of discretion in denying a severance of trial. However, the court concluded that it could not say that the trial judge erred in concluding that one defendant would not likely have incriminated himself at a separate trial in order to establish the other's innocence or that the denial of the motion to sever in that case was so prejudicial as to constitute an abuse of discretion. Barkley, 412 So.2d at 1382.
Similarly, in this case we cannot say that the trial court erred or abused its discretion in determining that the codefendant would not have incriminated himself in order to attempt to establish the defendant's innocence. The signed affidavit does not state that the codefendant would testify on the defendant's behalf. Further, the codefendant's statements in the affidavit were in direct conflict with the observations of the officers who witnessed the defendant and the codefendant together on the date in question and noted their behavior prior to their detention. Considering the nature of the proposed statements, we find that the defendant failed to demonstrate that the codefendant would, in fact, testify at a separate trial or that the codefendant's testimony would exculpate him. Accordingly, we find that the defendant failed to show how he was prejudiced by the trial court's denial of the severance or that the trial court's ruling amounted to an abuse of its discretion.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.