Opinion
NUMBER 2014 KA 0288
09-19-2014
STATE OF LOUISIANA v. MARLON WYNEL ROUTE
Walter P. Reed District Attorney Covington, LA Nicholas F. Noriea, Jr. Assistant District Attorney Covington, LA Counsel for Appellee State of Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, LA Prentice L. White Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Marlon Wynel Route
NOT DESIGNATED FOR PUBLICATION
On appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket Number 537,484 Division "F"
Honorable Martin E. Coady, Judge
Walter P. Reed
District Attorney
Covington, LA
Nicholas F. Noriea, Jr.
Assistant District Attorney
Covington, LA
Counsel for Appellee
State of Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, LA
Prentice L. White
Louisiana Appellate Project
Baton Rouge, LA
Counsel for Defendant/Appellant
Marlon Wynel Route
BEFORE: GUIDRY, THERIOT AND DRAKE, JJ.
GUIDRY, J.
The defendant, Marlon Wynel Route, was charged by bill of information with possession of a firearm by a convicted felon (count 1), a violation of La. R.S. 14:95.1; distribution of cocaine (count 2), a violation of La. R.S. 40:967(A); and distribution of morphine (count 3), a violation of La. R.S. 40:967(A). The defendant pled not guilty to the charges and, following a jury trial, was found guilty as charged on all counts. The defendant filed a motion for post-verdict judgment of acquittal, which was denied. For the possession of a firearm by a convicted felon conviction, the defendant was sentenced to fifteen years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence; for the distribution of cocaine conviction, he was sentenced to twenty years imprisonment at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence; for the distribution of morphine conviction, he was sentenced to twenty years imprisonment at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently. The State filed a habitual offender bill of information. Following a hearing on the matter, the defendant was adjudicated a fourth-felony habitual offender. The trial court vacated the twenty-year sentence for distribution of cocaine and resentenced the defendant to thirty-five years imprisonment at hard labor without benefit of probation or suspension of sentence. The trial court further ordered that twenty years of the thirty-five year sentence was to be served without benefit of parole. The sentence was ordered to run concurrent with the other sentences. The State moved for a reconsideration of sentence, which was denied. The defendant now appeals, designating one assignment of error. Also, the State appeals, designating one assignment of error. We affirm the convictions, habitual offender adjudication, and sentence for count 1 (possession of a firearm by a convicted felon). For the distribution of morphine sentence (count 2), we delete the restriction on parole eligibility. We amend the thirty-five year sentence to restrict parole eligibility for the first two years of the sentence, and affirm as amended.
The State severed co-defendant John Joiner. Also, the counts in the bill of information were renumbered to avoid confusion. The counts, as numbered in this opinion, were the official counts for the trial court and jury.
FACTS
On June 25, 2013, a confidential informant contacted Detective Brandon Stephens, with the St. Tammany Parish Sheriff's Office, and told Detective Stephens that he could set up a drug deal with someone known as "36." Detective Stephens agreed. The informant contacted "36" and told "36" to meet him at Pat's Grocery Store (Pat's) off of La. Hwy 36, where he would buy $200 worth of cocaine and morphine from "36." "36" had never seen the informant, which allowed an undercover officer to take the informant's place during the drug buy. Detective Roger Gottardi, with the St. Tammany Parish Sheriff's Office, in an undercover vehicle and wearing blue jeans, a T-shirt, and baseball cap, drove to Pat's and parked. Detective Gottardi was wearing a Kel device (or "wire"). Other police officers were close by, maintaining surveillance. After about fifteen minutes, a person, later identified as the defendant, approached the driver's side of Detective Gottardi's vehicle. The detective asked if he was "36" and the defendant said "yes." The defendant gave the detective a package containing powder cocaine, morphine pills, and Alprazolam pills. When the defendant asked for $160, Detective Gottardi told him he thought the deal was for $200. The defendant gave the detective another morphine pill and took the $200. As the defendant walked away, Detective Stephens gave the take down signal. The defendant was immediately apprehended in the parking lot by several police officers. An officer who performed a pat-down on the defendant's person found a loaded handgun in his waistband. At trial, to establish the defendant was a convicted felon, the State introduced into evidence the minute entry of the defendant's guilty plea on October 15, 2007, to possession of Alprazolam. The defendant did not testify at trial.
DEFENDANT'S ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the evidence was insufficient to support the convictions. Specifically, the defendant contends that his identity as the person who sold drugs to Detective Gottardi was not established by the State.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. C.Cr.P. art. 821(B); State v. Ordodi, 06-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585, p. 5 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. Furthermore, 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. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 05-0992, p. 6 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033, p. 3 (La. App, 1st Cir. 6/21/02), 822 So.2d 161, 163-64.
In his brief, the defendant asserts that his identity as the person who sold drugs to Detective Gottardi was not established at trial because Detective Gottardi was not shown a photographic lineup after the drug buy, and the detective "did not see the person identified as the suspect until he was ordered to come to court." Detective Gottardi identified the person who sold him the drugs as a black male wearing a green Boston Celtics hat. According to the defendant, since the surveillance officers "waited several minutes before arresting the person with the green hat," a different person other than the one who sold the drugs could have been wearing the hat. The defendant suggests that only Detective Stephens identified him as the suspect, yet Detective Stephens "based his identification on a green hat - nothing more." The person who sold the drugs identified himself as "36." According to the defendant, Lionel Certain, who was also at the scene, was known as "36." Detective Gottardi testified at trial that the black male who approached him in his undercover vehicle identified himself as "36." The individual was wearing a green Celtics hat. While he did not meet up with the other officers at the time of arrest, Detective Gottardi identified the defendant in court as the person who sold him the drugs. The detective explained, after pointing to the defendant in court, that he was the person who gave him the cellophane-wrapped cocaine and pills in exchange for $200.
Detective Stephens, the case agent, testified at trial that he was parked directly across the street from Pat's and had full view of Detective Gottardi. When the white vehicle, which contained four occupants, pulled into the parking lot, two went into the store, the driver stayed inside the car, and the person with the green Celtics hat approached Detective Gottardi in his vehicle. Detective Stephens observed the drug buy; he also heard the drug buy through the transmission and recording Kel device that Detective Gottardi was wearing. Upon completion of the purchase, Detective Gottardi gave a "take down" expression through his Kel device. Detective Stephens immediately instructed the surrounding officers, through radio, to "go," the signal for taking down the suspect. There were at least six other officers in different areas near the grocery store. Before Detective Stephens even drove across the street, Detective Katherine Domaingue and Sergeant Johnny Morse (both presumedly with the St. Tammany Parish Sheriff's Office), had the defendant in custody. Accordingly, the defendant was in custody only moments after selling the drugs to Detective Gottardi. The defendant's assertion in his brief that surveillance officers "waited several minutes" before arresting the person with the green hat is in direct conflict with the evidence. Both officers identified the person they arrested with the green hat as the defendant. Corporal Leonard Holloway, with the St. Tammany Parish Sheriffs Office, also at the scene moments before Detective Stephens arrived, testified that it was the defendant who Detective Domaingue and Sergeant Morse had in custody. Corporal Holloway saw the "buy" money on the ground near the defendant and retrieved it. It was the marked money used to purchase the drugs. When Corporal Holloway patted down the defendant, he found a .38 caliber revolver in the defendant's front waistband.
Detective Stephens made clear throughout his testimony that it was the defendant who sold the drugs and that he never lost sight of him. On direct examination, Detective Stephens stated, "We observed the parking lot, had a full view of the undercover vehicle and Detective Gottardi"; "[The vehicle] was occupied by four males, one being Mr. Route wearing a green hat, went to exit the vehicle and went to Detective Gottardi's UC vehicle." Later on direct examination, the following exchange took place:
Q. What happened to Route, did you later have contact with Route in the parking lot?
A. Yes, I did.
Q. Where was he taken in the parking lot?
A. I guess about -- he had made it around the front of Detective Gottardi's UC vehicle and maybe a few steps more when he was taken into custody. I think you can hear --
Q. What did you see?
A. During the transaction.
Q. After the transaction, what did you see?
A. I saw him walking around.
Q. Who is him?
A. I saw the defendant, Mr. Route, walk around the front of the undercover vehicle, back towards the white vehicle parked at the other end of the parking lot, at which time we all swarmed the parking lot and Detectives Domaingue and Sergeant Morse and I believe Holloway were the ones that apprehended Mr. Route, they got there before I did and me and Detective Sharp apprehended Mr. Joiner.
Q. How was Route dressed when he was leaving Gottardi's vehicle?
A. He was wearing a green hat and I believe he had shorts on, but I don't recall what color they were.
Following this exchange, Detective Stephens identified the defendant in court as the person who was placed under arrest in the parking lot.
On cross-examination, Detective Stephens testified that he was across the street from Pat's, about 100 to 150 feet away from the white vehicle, and using binoculars. The detective stated, "Mr. Route is the individual who approached the vehicle and sold dope to Detective Gottardi, whether his nick-name is Thirty-six (36) or "L" or Slim or whatever, I don't know." Detective Stephens later added, "I saw all the activity of the transaction"; and "I was able to watch the entire thing from start to finish from the time he left Gottardi to the time that he was engaged by Detective Morse and Detective Domaingue, I didn't loose [sic] sight of him." Detective Stephens further noted that the defendant was by himself when he was apprehended.
On the redirect examination of Detective Stephens, the following exchange took place:
Q. Now, was anybody else in the car wearing a green hat? I mean, this wasn't a basketball team, was it?
A. No, sir.
Q. This is the only green hat that came out of the car?
A. Yes, sir.
Q. Only green hat that walked across the parking lot?
A. Yeah. Green hat or not, I never lost visual contact of the subject.
Q. Did anybody else have a green hat in the parking lot that you saw?
A. No, sir.
Q. The money recovered by Holloway, did that match serial numbers?
A. Yes, sir.
The argument regarding sufficiency maintained by the defendant is based on credibility determinations. Both Detectives Gottardi and Stephens both positively identified the defendant as the person who sold the drugs to Detective Gottardi, and the jury chose to believe the officers. Detective Stephens, in particular, provided a definitive account of how the defendant was under constant observation from the moment he arrived at Pat's to when he was apprehended, and further, was categorical in his identification of the defendant as the person who sold the drugs. Whether the defendant used a bogus name - "36" - when he approached Detective Gottardi is of no moment regarding his actual identity. Any rational factfinder could have readily concluded that the defendant used an alias or nickname - his own or someone else's - when he conducted the drug transaction with a stranger. Moreover, despite the defendant's assertion in brief that Certain was known as "36," Certain did not testify, so other than the defendant identifying himself as "36" during the drug buy, there was no testimony or other evidence at trial regarding anything to do with the alias "36" or what it might mean. In any event, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will hot re weigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980, p. 6 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury heard all of the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty. The defendant's identity as the person who sold drugs to Detective Gottardi was clearly established, and the defendant did not testify or offer any countervailing evidence. In finding the defendant guilty, the jury clearly rejected the defense's theory of misidentification. See Moten, 510 So.2d at 61.
After a thorough review of the record, we find the evidence negates any reasonable probability of misidentification and supports the trial court's finding of guilt. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of distribution of cocaine and morphine, and possession of a firearm by a convicted felon. See State v. Calloway, 07-2306, p. 2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
The defendant's assignment of error is without merit.
STATE'S ASSIGNMENT OF ERROR
In its sole assignment of error, the State argues that the trial court erred in sentencing the defendant. Specifically, the State contends that as a fourth-felony habitual offender, he should have been sentenced to mandatory life imprisonment pursuant to La. R.S. 15:529.1(4)(b).
At the habitual offender hearing, the State introduced into evidence several exhibits, which included the defendant's fingerprint card, certified copies of bills of information, minute entries, and Boykin hearing transcripts of the predicate convictions alleged in the habitual offender bill of information. The defendant's predicate convictions were the following: March 5, 1998 guilty pleas to distribution of cocaine (22nd JDC, St. Tammany Parish, docket number 275,422) and two counts of armed robbery (22nd JDC, St. Tammany Parish, docket number 277,061); October 15, 2007 guilty pleas to possession of Alprazolam and possession of cocaine (22nd JDC, St. Tammany Parish, docket number 433,323); and a May 5, 2008 guilty plea to possession of marijuana, second offense (22nd JDC, St. Tammany Parish, docket number 442,032).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Louisiana Revised Statute 15:529.1(A) provides in pertinent part:
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of
sentence.
Louisiana Revised Statute 15:529.1(B) was amended by 2005 La. Acts No. 218, § 1 to provide that "[m]ultiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section." The effective date of this amendment was August 15, 2005. The three convictions, distribution of cocaine and two counts of armed robbery, obtained by way of guilty pleas entered on the same day, March 5, 1998, counted as only one conviction, pursuant to La. R.S. 15:529.1(B). Accordingly, since either the March 5, 1998 conviction of distribution of cocaine or the March 5, 1998 convictions for armed robbery could be counted as one conviction, only the instant offense (any one of the three counts of which the defendant was convicted) and one prior felony was a crime of violence or "a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes." See La. R.S. 15:529.1(A)(4)(b). As such, the defendant could not be sentenced under La. R.S. 15:529.1(A)(4)(b).
The State in its brief concedes that pursuant to La. R.S. 15:529.1(B), the three convictions entered on March 5, 1998, could be counted as only one conviction. The State asserts, however, that while the clear language of La. R.S. 15:529.1(B) referenced the "counting" of felonies, the court can still consider "the nature of each of his prior convictions" to determine whether the defendant qualifies for mandatory life imprisonment under La. R.S. 15:529.1(A)(4)(b).
The State's assertion is incorrect. Louisiana Revised Statute 15:529.1(B) is clear and unambiguous. The applicable habitual offender provisions are those in effect on the date the defendant committed the instant offenses. State v. Parker, 03-0924, p. 16 (La. 4/14/04), 871 So.2d 317, 326-27, writ denied, 04-3014 (La. 3/24/05), 895 So. 2d 1035. The instant offenses were committed in 2013 and the three guilty pleas at issue were obtained on the same day on March 5, 1998, or prior to October 19, 2004. Thus, La. R.S. 15:529 1(B) applies to the instant matter. Despite that the March 5, 1998 guilty pleas were for crimes committed at different times (distribution of cocaine in 1996 and the two counts of armed robbery on the same day in 1997), all three convictions, pursuant to La. R.S. 15:529.1(B), can be counted only as a single conviction. Thus, the State had the choice of counting the March 5, 1998 guilty pleas as either a distribution of cocaine conviction or an armed robbery conviction for purposes of determining the defendant's habitual offender status. See State v. Alexander, 07-909, p. 3 (La. App. 5th Cir. 3/11/08), 983 So.2d 112, 113. See also State v. Law, 45,435, p. 14 (La. App. 2nd Cir. 8/11/10), 46 So.3d 764, 772-73; State v. Spano, 41,032, pp. 6-14 (La. App. 2nd Cir. 8/1/06), 936 So.2d 304, 308-12.
Accordingly, the defendant was properly sentenced under La. R.S. 15:529.1(A)(4)(a).
The State's assignment of error is without merit.
SENTENCING ERRORS
Under La. C.Cr.R art. 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 sentencing errors.
For his possession of a firearm by a convicted felon conviction, the defendant was sentenced to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than twenty years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). The trial court failed to impose the mandatory fine at sentencing. Accordingly, the defendant's sentence, which did not include the mandatory fine, is illegally lenient. However, since the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 05-2514 at p. 22, 952 So.2d at 124-25.
The minutes also reflect that no fine was imposed.
For his distribution of morphine conviction, the defendant was sentenced to twenty years imprisonment at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. A substance classified in Schedule II which is a narcotic drug, except cocaine, oxycodone, and methadone, shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years. See La. R.S. 40:967(B)(1). Morphine is a narcotic drug and, accordingly, the defendant should have been sentenced pursuant to this provision, which does not contain any restriction on parole eligibility. Accordingly, we delete the restriction on parole eligibility.
It appears the trial court mistakenly sentenced the defendant under La. R.S. 40:967(B)(4)(b), which provides in pertinent part that for distribution of cocaine, oxycodone, or methadone, a person 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.
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At the habitual offender hearing, upon the defendant being adjudicated a fourth-felony habitual offender, the trial court vacated the instant distribution of cocaine sentence and resentenced the defendant pursuant to La. R.S. 15:529.1(A)(4)(a). The trial court sentenced the defendant to thirty-five years imprisonment at hard labor without benefit of probation or suspension of sentence. The trial court further ordered that twenty years of the thirty-five-years sentence be served without benefit of parole. This was error. For the conviction of distribution of cocaine, a defendant 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. La. R.S. 40:967(B)(4)(b).
A defendant's sentence under the Habitual Offender Act is determined by the sentencing provisions of both the underlying crime and the Habitual Offender Act. State v. Bruins, 407 So.2d 685, 687 (La. 1981). Since the distribution of cocaine statute requires the restriction of parole for the first two years only, and since the applicable provisions of the Habitual Offender Act do not preclude eligibility for parole, see La. R.S. 15:529.1(A)(4)(a) & 15:529.1(G), the trial court's denial of parole eligibility for twenty years of the defendant's habitual offender sentence is illegally harsh.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C.Cr.R art. 882(A). Accordingly, we amend the defendant's sentence to reflect that only the first two years of his enhanced thirty-five-year sentence is to be served without the benefit of parole, and we affirm the sentence as amended. The entire sentence is still to be served without benefit of probation or suspension of sentence. Further, we remand this case to the trial court for correction of the commitment order and transmission of the amended commitment order to the Department of Corrections.
CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE FOR COUNT 1 (POSSESSION OF A FIREARM BY A CONVICTED FELON) AFFIRMED; SENTENCE FOR COUNT 3 (DISTRIBUTION OF MORPHINE) AMENDED TO REMOVE THE RESTRICTION ON PAROLE ELIGIBILITY AND AFFIRMED AS AMENDED; SENTENCE FOR COUNT 2 (THE ENHANCED THIRTY-