Opinion
NO. 2012 KA 1600
04-26-2013
STATE OF LOUISIANA v. SIDNEY WILLIAMS, III
HON. JOSEPH L. WAITZ, JR. DISTRICT ATTORNEY ELLEN DAIGLE DOSKEY ASSISTANT DISTRICT ATTORNEY HOUMA, LA ATTORNEYS FOR STATE OF LOUISIANA CATE L. BARTHOLOMEW NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT SIDNEY WILLIAMS, III
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
in and for the Parish of Terrebonne, Louisiana
Trial Court No. 544,060
Honorable George J. Larke, Jr., Judge
HON. JOSEPH L. WAITZ, JR.
DISTRICT ATTORNEY
ELLEN DAIGLE DOSKEY
ASSISTANT DISTRICT ATTORNEY
HOUMA, LA
ATTORNEYS FOR
STATE OF LOUISIANA
CATE L. BARTHOLOMEW
NEW ORLEANS, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
SIDNEY WILLIAMS, III
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
PETTIGREW , J.
The defendant, Sidney Williams, III, was charged in a multi-count bill of information with attempted first degree murder (count one), possession with intent to distribute hydrocodone, oxycodone, and cocaine (counts two, three, and six), possession of propoxyphene and butalbital (counts four and five), and attempted disarming of a police officer (count seven). See La. R.S, 14:27; La. R.S. 14:30; La. R.S. 40:968(A)(1) & (C); La. R.S. 40:967(A)(1); La. R.S. 40:969(C); La. R.S. 14:34.6. See also La. R.S. 40:964, Schedules II, III, & IV. The defendant pled not guilty on all counts. After a trial by jury, he was found guilty on count one of the responsive offense of aggravated battery (a violation of La. R.S. 14:34), and guilty as charged on the remaining counts. On each of counts one, two, and three, the trial court imposed ten years imprisonment at hard labor. On both counts four and five, the trial court imposed five years imprisonment at hard labor. On count six, the trial court imposed thirty years imprisonment at hard labor, with the first two years to be served without the benefit of probation, parole, or suspension of sentence. Finally, on count seven, the trial court imposed two and one-half years imprisonment at hard labor. The trial court ordered that the sentences be served concurrently.
The defendant now appeals, challenging the evidence to support the convictions on counts one through six, the State's compliance with the rules of discovery, the trial court's denial of motions to strike jurors for cause, the trial court's ruling allowing a police officer to testify as an expert witness, and the constitutionality of the sentencing. For the following reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS
On the evening of February 17, 2009, Trooper Brian Harding of Louisiana State Police, Troop C, was patrolling in Terrebonne Parish in a marked unit. At approximately 7:15 p.m., while traveling northbound on Louisiana Highway 315 (Bayou Dularge Road), Trooper Harding approached a Chevrolet GMC truck as it also traveled northbound. Trooper Harding noticed that the driver, later identified as the defendant, was veering off of the roadway causing the passenger side tires to cross the fog line to the shoulder of the road. Trooper Harding began to observe the defendant as he continued northbound. When defendant made a right turn to cross the Houma Navigational Canal Bridge and stopped on the shoulder before approaching the bridge, Trooper Harding passed him. After the defendant got right back on the road behind him, Trooper Harding, suspicious, pulled onto the shoulder himself and allowed the defendant to pass ahead of him. After crossing the bridge, Trooper Harding activated his police lights and DVD and audio recording device, and conducted a traffic stop in an adjacent parking lot.
After they pulled into the parking lot, Trooper Harding exited his unit, approached the defendant's vehicle, told him to step out, and informed the defendant of his identity and the reason for the stop. Trooper Harding further requested the defendant's driver's license, insurance information, and proof of vehicle registration. The defendant immediately began to attempt to explain his erratic driving and informed the officer that his driver's license was expired. Trooper Harding used his portable communication radio to report the traffic stop and request a canine. As Trooper Harding continued to collect information and question and observe the defendant, the defendant abruptly fled into an adjacent field. Trooper Harding followed him, and a physical struggle took place. As they struggled, the defendant gained possession of Trooper Harding's taser, placed it directly to the officer's neck, and pulled the trigger. Trooper Harding used his legs to break the contact of the taser. As Trooper Harding felt the defendant tugging his holstered handgun, Trooper Harding rolled over, kicked the defendant, drew his weapon, and shot the defendant. After the defendant fell to the ground, Trooper Harding re-holstered his handgun and was eventually able to handcuff the defendant as he continued to struggle with the officer. At that point, the backup officers began to arrive on the scene and tended to Trooper Harding and the defendant until they were taken to the hospital. The officers also secured the scene and marked several evidentiary items for collection by the Louisiana State Police Crime Laboratory personnel who arrived on the scene. Among the items were a wide assortment of tablets and a white crystalline substance.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In assignment of error number one, the defendant contends that the evidence in support of the drug-related convictions is insufficient. The defendant notes that Trooper Harding did not observe him discard anything and argues that there was insufficient evidence to show that he possessed the drugs found in the field. The defendant further contends that given the struggle in the field where the cocaine was located, the cocaine residue found on his clothing was explainable. In arguing that there was insufficient evidence of intent to distribute in this case, the defendant contends that the amount of hydrocodone and cocaine seized was consistent with personal use. The defendant notes that the State presented expert testimony that one ounce of cocaine has a street value of seven hundred dollars, further noting that the six hundred dollars seized from his pants pocket was enough to purchase the amount of cocaine seized in this case. The defendant concludes that the State failed to prove, beyond a reasonable doubt, critical elements of the drug-related charges.
In assignment of error number two, the defendant contends that the evidence in support of the aggravated battery conviction is insufficient. The defendant specifically argues that a taser is not a dangerous weapon. The defendant notes that officers testified during the trial that the electrical current produced by a taser is designed to incapacitate the individual by causing momentary numbness without producing bodily harm. The defendant further notes that when a taser is used in drive stun mode as indicated in this case, sometimes it can incapacitate an individual and sometimes it does not.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 LEd.2d 560 (1979). That standard of appellate review, adopted by the Legislature in enacting La. Code Crim. P. art. 821, is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006), The Jackson standard of review 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, in order to convict, the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492, p. 5 (La. App. 1 Cir. 2/14/03), 845 So.2d 416, 420, 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. Moten, 510 So.2d 55, 61 (La. App. 1 Or.), writ denied, 514 So.2d 126 (La. 1987).
As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1 Cir. 1984). Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Richardson, 459 So.2d at 38. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La. 1992). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Thomas, 2005-2210, p. 8 (La. App. 1 Cir. 6/9/06), 938 So.2d 168, 174, writ denied, 2006-2403 (La. 4/27/07), 955 So.2d 683.
The jurisprudence has not established precise guidelines as to what constitutes "possession" of drugs under the narcotics laws. State v. Trahan, 425 So.2d 1222, 1226 (La. 1983). However, one need not physically possess a controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. A person not in physical possession of the drug is considered to be in constructive possession of a drug when the drug is under that person's dominion and control. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) his knowledge that illegal drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) his physical proximity to the drugs; and (6) any evidence that the particular area was frequented by drug users. State v. Gordon, 93-1922, p. 9 (La. App. 1 Cir. 11/10/94), 646 So.2d 995, 1002. It is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. See State v. Toups, 2001-1875, p. 4 (La. 10/15/02), 833 So.2d 910, 913. Nonetheless, a person found in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control. State v. Trahan, 425 So.2d at 1226. A determination of whether or not there is possession sufficient to convict depends on the peculiar facts of each case. State v. Gordon, 931922 at 9, 646 So.2d at 1002.
A defendant is guilty of distribution when he transfers possession or control of a controlled dangerous substance to his intended recipients. See La. R.S. 40:961(14); See State v. Cummings, 95-1377, p. 4 (La. 2/28/96), 668 So.2d 1132, 1135. To support a conviction for possession with intent to distribute a controlled dangerous substance, the State is required to prove both possession and intent to distribute. State v. Young, 99-1264, p. 10 (La. App. 1 Cir. 3/31/00), 764 So,2d 998, 1006. In order to prove the element of intent to distribute, the State must prove the defendant's specific intent to possess in order to distribute. Specific intent is a state of mind. It need not be proven as a fact and may be inferred from the circumstances present and the actions of the defendant, State v. Gordon, 93-1922 at 9-10, 646 So.2d at 1003. In cases where the intent to distribute a controlled dangerous substance is an issue, a court may look to various facts including: (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant's possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as bags or scales, evidencing an intent to distribute. State v. House, 325 So.2d 222, 225 (La. 1975).
Battery is in pertinent part defined as the intentional use of force or violence upon the person of another. La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34(A). A "dangerous weapon" includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3). To support a conviction of aggravated battery the State has the burden to prove three elements: (1) that the defendant intentionally used force or violence against the victim, (2) that the force or violence was inflicted with a dangerous weapon, and (3) that the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Rainey, 98-436, p. 10 (La. App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La. 5/7/99), 741 So.2d 28. The dangerousness of an instrumentality because of its use is a factual question for the jury to decide for purposes of a conviction of aggravated battery. State v» Odom, 2003-1772, p. 8 (La. App. 1 Cir. 4/2/04), 878 So.2d 582, 589, writ denied, 2004-1105 (La. 10/8/04), 883 So.2d 1026. Aggravated battery requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Instead, the requisite intent element is general criminal intent. State v. Brown, 2000-1951, p. 3 (La. App. 1 Cir. 5/11/01), 808 So.2d 622, 623-624. It is undisputed that the defendant intentionally committed a battery in this case. It is also clear that Trooper Harding did not consent to the battery. The defendant only challenges his aggravated battery conviction on the grounds that the taser used in this case was not a dangerous weapon.
The parking lot where the traffic stop was conducted in this case had lighting and the headlights on the police unit provided additional lighting. The camera of the police unit captured audio and video footage of the traffic stop and parking lot exchange between the defendant and Trooper Harding. The defendant was frantic and nervous when he exited his vehicle and paced and spoke quickly. Trooper Harding was suspicious and believed that the defendant was behaving as if he had something to hide. Trooper Harding detected the odor of burnt marijuana,. As Trooper Harding collected the requested information and continued to question the defendant, the defendant continued to display nervous behavior and began to beg the officer to let him go. Trooper Harding noted an object in the defendant's hand that appeared to be a small hand-rolled cigarette, commonly referred to as a roach or joint. The defendant indicated that the object was a cigarette but refused to give it to the officer. The defendant abruptly took flight, and Trooper Harding followed in pursuit as the defendant entered the adjacent field, exceeding the area being captured by the police unit's video camera.
Though the field was dimly lit, the lighting In the parking lot provided some indirect lighting. Trooper Harding testified that he attempted to use his taser in a manner to subdue the defendant, but it was not effective. The defendant stumbled, but continued to run. Trooper Harding caught up with the defendant and attempted to tackle and gain control over him by placing him in a choke-hold. Trooper Harding dropped his taser as he forced the defendant to the ground. The defendant gained control of the taser and placed it to the officer's neck and pulled the trigger. Trooper Harding's upper body went numb. Trooper Harding further described the contact as follows: "Basically it felt like there was an impulse on my skin like inside my body from the vibration of the taser and the current. My right side and my upper chest were numb and getting hit with one of these is very painful. And that's what I experienced." As he still had use and control over his legs, Trooper Harding moved around and managed to break the taser contact, but was weak and unable to resume a physical struggle.
Trooper Harding completed a series of courses to train for the use of a taser and explained the two distinct methods of use. One method of use involves lifting the safety, aiming a red laser, and pulling the trigger. Otherwise, the cartridge probes can be placed directly to the targeted individual's skin in a drive stun manner that completes the circuit and allows the electricity to travel. Once the trigger is pulled the taser remains activated for five seconds unless it is manually stopped. After the five seconds, the taser will not restart unless the trigger is pulled again. Trooper Harding could not discern how long the taser was activated against his neck.
After he managed to break the contact of the taser, Trooper Harding was positioned to the side of the defendant, and he felt the defendant tug his handgun. Trooper Harding rolled his body over to prevent tne handgun from being removed from his holster. He was then able to use his left foot to kick the defendant away. After kicking the defendant, Trooper Harding drew his handgun and fired one shot, striking the defendant who then fell to the ground.
Sergeant Mark Arceneaux, of the Terrebonne Parish Sheriffs Office, was a patrol officer at the time of the instant offenses and was among the first backup officers to arrive to the scene. Officer Neil Abbott of the Houma Police Department was the only other officer present when Sergeant Arceneaux arrived. Sergeant Arceneaux was already patrolling the area when he was dispatched at approximately 7:30 p.m., and arrived to the scene in approximately two minutes or less. Sergeant Arceneaux saw an illuminated flashlight in the field and ran to the light and observed Trooper Harding, who was lying on his back at the time. Sergeant Arceneaux further observed a taser cord entangled with Trooper Harding's portable radio. Sergeant Arceneaux assisted Trooper Harding, who was breathing abnormally and in distress and pain at the time, while Officer Abbott tended to the defendant who had a gunshot wound that appeared to be at his abdomen or side. An ambulance arrived and transported Trooper Harding and the defendant to the hospital for further care. Once the medical personnel arrived to take care of Trooper Harding and the defendant, Sergeant Arceneaux observed pill bottles, a substance that appeared to be crack cocaine, and several pills loose on the ground. The items were concentrated along the path between the vehicles and the part of the field where Trooper Harding and the defendant were positioned upon the sergeant's arrival. Sergeant Arceneaux instructed another responding officer to preserve the crime scene and evidence. Sergeant Arceneaux remained at the scene until the investigators arrived. Lieutenant Todd Wood, a state trooper who also responded to the scene, noted that the scene was secured by Trooper Corey Brunet and no pedestrians were allowed to pass through the scene.
Patrick Lane, a crime scene Investigator employed by the Louisiana State Police Crime Laboratory, was contacted In reference to the instant offenses and responded to the scene with two assistants. The scene had already been secured when they arrived, many police units and officers were present, and several evidentiary items were marked. Lane took possession of several items including a pill bottle and four and one-half tablets labeled 'Watson 349/ a clear plastic bag, white pilis that were scattered in the field, a prescription pill bottle that contained seventeen tablets and a portion of another tablet, a white crystalline substance, a clear plastic bag containing over twenty more tablets, and a Crown Royal bag containing four additional tablets. Some of the defendant's clothing, including two shirts, was removed at the scene and his jeans were collected at the hospital. A vegetable material, a white powder substance, and orange rolling papers were recovered from the defendant's pocket. According to Lane's testimony and the laboratory report, the seized narcotics specifically consisted of the following: 46.5 hydrocodone tablets, 17 oxycodone tablets, 17.25 grams of crack cocaine, .14 grams of powder cocaine, 5.5 dextropropoxyphene tablets, 1 butalbital tablet, and L91 grams of marijuana. Lane, an expert in the field of firearm firing distance, determination, inspected the victim's clothing and determined that the gun was fired from a six to thirty-six inch distance from the defendant.
Louisiana State Police Trooper Craig Rhodes also testified at the trial as an expert in the field of distribution and consumption of illegal controlled dangerous substances. Trooper Rhodes testified that drug dealers were able to make more money by purchasing drugs in bulk for a cheaper price. He further testified that the drugs were, however, usually consumed in small quantities. He specifically noted that approximately one quarter of a gram of cocaine was sufficient for one individual dose, and that the street price for a single gram of powdered cocaine was approximately one hundred dollars. Trooper Rhodes testified that the market value of one ounce of cocaine in Terrebonne Parish is approximately seven hundred dollars. Trooper Rhodes further testified that the possession of seventeen grams of cocaine would be consistent with distribution as opposed to persona! use based on the amount. Trooper Rhodes indicated that based on his experience, a user would not have more than an eighth of an ounce (three grams) of cocaine and noted that a binge on the amount in question would be fatal. Trooper Rhodes noted that the large chunk of cocaine seized in this case was in a compressed form, consistent with a common method of importation for distribution by a high-level or mid-level drug dealer. He noted that the cocaine was not yet in a form consistent with consumption. He noted that the evidence also included smaller rock-like substances, consisting of crack cocaine. Trooper Rhodes further testified that a hydrocodone user would typically purchase up to one ten-pack (ten pills) at a time for five to seven dollars. Trooper Rhodes noted that the possession of over forty pills (especially in combination with the cocaine) would be an indication that the possessor was a distributor as opposed to a user. Trooper Rhodes noted that a user would not typically have a large amount of pills at their disposal and further noted that he had never observed a user in possession, for personal consumption, of the combination of drugs seized in this case.
Toby Voisin, the manager of the business located in the parking lot where the traffic stop took place, testified that the open field where the struggle took place was maintained and owned by the establishment (Wilson's Oysters). Voisin testified that the lot was maintained by employees who routinely cut the grass and removed any debris. Voisin further testified that he and the other employees never discovered any narcotics in the field outside of this particular incident. Voisin admitted that he did not personally inspect the lot, but confirmed that his employees never reported any such findings.
We find that the evidence presented was sufficient to support the jury's finding that the defendant had constructive possession of the controlled dangerous substances seized in this case. The field where the drugs were located had been properly maintained before the instant offenses. The drugs were located directly along the path from the vehicle from which the defendant fled, to the location where the defendant and Trooper Harding rested after the struggle. No one else was present in the field besides the defendant and Trooper Harding until the backup officers arrived. Lieutenant Wood testified that the scene was secured and no pedestrians were allowed to pass through the scene. According to Sergeant Arceneaux, no one tampered with or removed any evidence before the Louisiana State Police investigator arrived. The defendant was clearly in the immediate physical proximity of the drugs. Further, marijuana and cocaine were recovered from the defendant's pants pocket after he was transported to the hospital. These facts are sufficient to convince a rational trier of fact beyond a reasonable doubt that the defendant had constructive possession of the drugs. Analyzing the facts of the instant case and applying the House factors, we further conclude that the jury's finding of specific intent to distribute hydrocodone, oxycodone, and cocaine was sufficiently supported by the evidence. According to the expert testimony presented by the experienced narcotics detective, the amount, combination, and/or form of the cocaine, hydrocodone, and oxycodone seized in this case was inconsistent with personal use and consistent with distribution.
As to the jury's apparent determination that the taser used by the defendant in this case constituted a dangerous weapon, we note that courts have determined that several items could be considered dangerous weapons based on the facts of the case though not necessarily inherently deadly. For example, in State v. Archield, 2009-1116, p. 8 (La. App. 3 Cir. 4/7/10), 34 So.3d 434, 440, writ denied, 2010-1146 (La. 5/20/11), 63 So.3d 972, the court noted that a vase held over one's head in the manner presented in that case, arguably constituted a dangerous weapon. Further, pepper spray has been acknowledged as a dangerous weapon. See State v. Lemeunier. 2007- 230, pp. 7-8 (La. App. 5 Cir. 5/27/08), 986 So.2d 130, 135-136, writ denied, 2008- 1403 (La. 3/6/09), 3 So.3d 481 (as used in an aggravated burglary).
Herein, Trooper Harding's upper body was completely numb as a result of the defendant placing the taser directly to his neck. Further, Trooper Harding's heart rate became elevated, and he was breathing abnormally. Trooper Harding remained in the hospital overnight and was given medication to reset his advanced heart rate. Clearly, in this case the taser was used in a manner likely to cause death or great bodily harm.
We cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v, Ordodi, 2006-0207, pp. 14-15 (La. 11/29/06), 946 So.2d 654, 662. Furthermore, 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 trier of fact. See State v. Calloway, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Based on a thorough review of the evidence, in the light most favorable to the prosecution and the arguments asserted by defendant on appeal, we are convinced that any rational trier of fact could have concluded beyond a reasonable doubt that the evidence was sufficient to exclude the defendant's hypotheses of innocence and to support the defendant's convictions.
ASSIGNMENT OF ERROR NUMBER THREE
In the third assignment of error, the defendant contends that his due process rights were violated because the State withheld potentially exculpatory evidence from the defense. The defendant's complaint, previously detailed in his motion for new trial, is in reference to the following material: statements from officers at the scene, scene photographs of the discharged taser and alleged taser injury, the testimony of Wilson Voisin, and Trooper Harding's weapon, holster, and taser,
The defendant notes that Sergeant Arceneaux was one of the first officers to arrive on the scene and observed Trooper Harding lying on his back in the field with a taser cord entangled with his portable radio. The defendant also notes that Lieutenant Wood observed evidence of the initial taser fire about one hundred feet from the stopped vehicles and that the taser cartridge and narcotics were located an additional distance away. The defendant contends that the police statements regarding these facts and the photographic evidence depicting their observations were not made available to the defense pretrial, despite discovery requests. The defendant also notes that despite defense motions to preserve the evidence, the taser, gun, and holster were returned to Trooper Harding, preventing the defense from testing the evidence. The defendant contends that evidence regarding the alleged struggle and discharge of the taser was critical to the defense. The defendant notes that the State tested the taser for fingerprints and did not find any despite Trooper Harding's testimony that both he and the defendant handled the taser. Noting that there were no independent eyewitnesses or video evidence, the defendant, argues that scientific evidence regarding the physical impossibility of the trooper's account of events was critical to his defense. Finally, the defendant argues that the State's deliberate action to prevent evidence testing violates Brady as it deprived him of a fair trial.
The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La. 1982). Discovery procedures enable a defendant to properly assess the strength of the State's case against him in order to prepare his defense. State v. Roy, 496 So.2d 583, 590 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 228 (La. 1987). The State's failure to comply with discovery procedures will not automatically demand a reversal. State v. Burge, 486 So.2d 855, 866 (La. App. 1 Cir.), writ denied, 493 So.2d 1204 (La. 1986). Accordingly, a conviction should not be reversed because of an erroneous ruling on a discovery violation absent a showing of prejudice. State v. Gaudet, 93-1641, p. 6 (La. App. 1 Cir. 6/24/94), 638 So.2d 1216, 1220, writ denied, 94-1926 (La. 12/16/94), 648 So.2d 386. If a defendant is lulled into a misapprehension of the strength of the State's case by the State's failure to fully disclose, such a prejudice may constitute reversible error. Roy, 496 So.2d at 590.
The defendant has no general constitutional right to unlimited discovery in a criminal case. State v. Lynch, 94-0543, p. 12 (La. App. 1 Cir. 5/5/95), 655 So.2d 470, 478, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466. Under the United States Supreme Court decision in Brady, the State, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197. This rule has been expanded to include evidence that impeaches the testimony of a witness, when the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The test for determining materiality was firmly established in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) and has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So.2d 965, 970-971 (La. 1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
Late disclosure as well as non-disciosure of evidence favorable to the defendant requires reversal if it has significantly impacted the defendant's opportunity to present the material effectively in its case and compromised the fundamental fairness of the trial. The impact on the defense of late disclosure of favorable evidence must be evaluated in the context of the entire record. State v. Harris, 2001-2730, pp. 14-15 (La. 1/19/05), 892 So.2d 1238, 1250, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). The State's constitutional obligation to disclose exculpatory evidence does not relieve the defense of its obligation to conduct its own investigation and prepare a defense for trial as the State is not obligated under Brady or its progeny to furnish the defendant with information he already has or can obtain with reasonable diligence. State v. Harper, 2010-0356, p. 11 (La. 11/30/10), 53 So,3d 1263, 1271.
In support of his argument that material evidence was withheld in this case, preventing a fair trial, the defendant cites State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198. However, in that case the court did not address any potential Brady violations. Instead, the court found that the defendant's due process right to present a defense was violated because the trial court did not afford full confrontation and cross-examination of State witnesses. State v. Van Winkle, 94-0947 at 5-7, 658 So.2d at 201-202. In the instant case, the defendant was afforded the full opportunity to cross-examine the State witnesses, including cross-examination on their observations at the scene and the location, seizure, and testing of the taser.
Moreover, we find that the defendant has failed to show that the State suppressed any evidence in this case. Despite the defendant's claim that there were Brady violations, the record shows he had access to the evidence and admitted such access at the hearing on the motion for new trial. Also, the defendant was effectively able to question the witnesses and present his defense. We further note that even if a discovery or Brady violation did occur, it would not constitute reversible error without actual prejudice to the defendant's case. See State v. Francis, 2000-2800, pp. 5-6 (La. App. 1 Cir. 9/28/01), 809 So.2d 1029, 1033. Herein, the defendant has failed to show how he was prejudiced or denied a fair trial. Moreover, the record does not reflect any manner in which the defendant might have been lulled into a misapprehension of the strength of the State's case. The defendant has failed to raise any substantial claim of suppression of evidence by the State or show any substantial prejudice such that he was deprived of any reasonable expectation of a fair trial. Thus, the third assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER FOUR
In assignment of error number four, the defendant argues that the trial court erred in denying challenges for cause to strike five potential jurors: Corey Pitre, Lloyd Freeman, Dan McDonald, Sr., Timothy Blender, and Kamie Pellegrin. The defendant contends that there were three applicable grounds for the challenges: impartiality, a relationship that would influence the juror, and the failure of a potential juror to accept the law as given. The defendant specifically notes that the answers provided by Pitre demonstrated that he could not be impartial. The defendant further notes that Pitre, Freeman, McDonald, and Ellender had social or work relationships that would affect their ability to be impartial. The defendant notes that Ellender is a lawyer in Terrebonne Parish and was present in court when pretrial matters on the defendant's case were being handled by the court. The defendant further specifies that Pitre, Pellegrin, and Freeman provided answers that demonstrated that they could not follow the law regarding his right to remain silent.
A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion State v. Martin, 558 So.2d 654, 658 (La. App. 1 Cir.), writ denied, 564 So.2d 318 (La. 1990). 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. Martin, 558 So.2d at 658. However, a trial 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, 2005-1676, p. 5 (La. App. 1 Cir. 5/5/06), 935 So.2d 211, 214, writ denied, 2006-1586 (La. 1/8/07), 948 So.2d 121.
Prejudice is presumed when a trial court erroneously denies a challenge for cause, and the defendant ultimately exhausts his peremptory challenges. State v. Kang, 2002-2812, p. 2 (La. 10/21/03), 859 So.2d 649, 651. This is because an erroneous ruling depriving an accused of a peremptory challenge 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 trial court's erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. See Kang, 2002-2812 at 2, 859 So.2d at 652. Since the defendant in this case exhausted all of his peremptory challenges, we need only consider the issue of whether the trial judge erroneously denied the defendant's challenges for cause contested herein.
Louisiana Code of Criminal Procedure article 797 provides, in pertinent pan, the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence. Article 797 further provides that a defendant may challenge a juror for cause on the grounds that the juror has a relationship, employment, or friendship with the district attorney that could influence the juror in arriving at the verdict. Finally, a defendant may challenge a juror for cause on the grounds that the juror will not accept the law as given to him by the court.
The defendant specifically contends that Pitre knew two State witnesses, Keith Redmond and Sergeant Arceneaux, and that Freeman had a friendship with the Sheriff of Terrebonne Parish. First of ail, we note that Keith Redmond did not testify during the trial. Secondly, the defendant did not assert an improper relationship as a ground for his challenges for cause for Pitre and Freeman. A defendant is limited on appeal to the grounds articulated at trial. A new basis for an objection cannot be raised for the first time on appeal. La. Code Crim. P. arts. 800(A) & 841; State v. Lawson, 95-1604, p. 3 (La. App. 1 Cir. 12/20/96), 684 So.2d 1150, 1152, writ denied, 97-0191 (La. 6/13/97), 695 So.2d 986. Thus, the defendant cannot now, for the first time on appeal, assert that Pitre and Freeman had influential relationships.
When the potential jurors were asked if they had a problem with the fact that the defense attorney would decide whether the defendant would testify and tell his side of what happened, Pitre stated the following response: "You know, if you put in that position of which he's in why wouldn't you wanna say what really, what really went down? I understand the law says he doesn't have to, but my opinion is why wouldn't he want to." Freeman similarly stated, "Absolutely. It'll be on your mind. ... [W]hy didn't he do it, why did he -- he had that chance to talk, why didn't he talk." In this regard Pellegrin stated, "I just feel that if he's not guilty he should, he should testify to prove himself." She further stated that she would find a person guilty if the person did not testify and deny the allegations. Prospective juror Anabella Fogle similarly stated, "What's he got to hide?" Fogle confirmed that she would still feel that way despite instructions from the court that the defendant's silence could not be used against him.
In an effort to rehabilitate the potential jurors, the trial judge further explained the defendant's rights and asked the jurors if they could follow the law as instructed after hearing all of the evidence. Pitre indicated that he would have doubts but could follow the law. Pitre, Pellegrin, and Freeman confirmed that they would not find the defendant guilty because he did not testify. They further confirmed that they understood the law, including the burden of proof and presumption of innocence, and would follow it. However, the trial court's attempts to rehabilitate Fogle were clearly unsuccessful. The trial court asked Fogle if she would still find the defendant guilty because he failed to take the stand even if the evidence did not convince her beyond a reasonable doubt that he committed the crime and she responded, "No, I think that he oughta fight and speak for hisself." After further questioning by the trial court, she again confirmed that she would find the defendant guilty if he did not testify. The trial court granted the challenge for cause as to Fogle but denied the challenges of Pitre, Pellegrin, and Freeman, noting that they, unlike Fogle, demonstrated their ability to follow the law.
As to prospective juror McDonald, the trial court specifically asked him if the fact that his wife was employed by the district attorney's office would create any difficulty in his ability to be fair and impartial to the defendant and district attorney, and he responded negatively. McDonald further confirmed that he could make a decision based on the evidence regardless of his wife's employment. In denying the challenge for cause as to McDonald, the triai court noted that he said nothing to indicate that he would not be fair or impartial and seemed to be one of the more intelligent members of the jury pane! and very capable of understanding his role. As noted by the defendant, Ellender indicated that he knew the assistant district attorneys, specifically stating that he practiced with and against them. When asked if his relationship with them would cause him to have difficulty in being fair or impartial he stated, "Not at all." He further confirmed that he could make a decision based on the evidence.
The trial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination as a whole, that the judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will the ruling of the trial judge be reversed. See State v. Lee, 93-2810, p. 9 (La, 5/23/94), 637 So.2d 102, 108. We find that the totality of the responses by the prospective jurors in question demonstrated their willingness and ability to decide the case impartially according to the law and the 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, it is clear that the trial court did not abuse its broad discretion in denying the defendant's challenges for cause as to these prospective jurors. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER FIVE
In the fifth assignment of error, the defendant contends that the trial court abused its discretion in allowing a local law enforcement officer, State Trooper Craig Rhodes, to testify as an expert in the distribution and consumption of narcotics. Conceding Trooper Rhodes may have street experience, the defendant argues that there is no expert field or scientifically tested, validated, or reliable standard for determining what amount or form of cocaine is consistent or inconsistent with personal use. The defendant further argues that Trooper Rhodes exceeded the scope of his supposed expertise by presenting medical testimony about the amount of cocaine required for an overdose and the potential fatal effects of mixing any of the drugs in question.
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. Trial courts are vested with great discretion in determining the competence of expert witnesses, and rulings on the qualifications of an expert witness will not be disturbed unless there was an abuse of that discretion. 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 592-595, 113 S.Ct. at 2796-2797. 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 scientific expert testimony in accordance with Article 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 153-154, 119 S.Ct. at 1176.
To establish defendant's guilt on counts two, three, and six in the instant case, the State was required to prove beyond a reasonable doubt that defendant knowingly and intentionally possessed the controlled dangerous substances with the specific intent to distribute them. One method by which the State commonly seeks to prove intent to distribute is by producing expert testimony or other evidence to show that the amount of the drugs found in the defendant's possession is inconsistent personal use. See State v. Hearold, 603 So.2d 731, 735 (La. 1992). In order to demonstrate intent to distribute in the instant case, the State offered Trooper Rhodes as an expert witness.
Trooper Rhodes had been working in narcotics in excess of eleven years in the Criminal Investigations Division of the Louisiana State Police. His duties Included the investigation of criminal complaints of narcotics sales and possession, manufacture, distribution, or importation of any illegal narcotics into Louisiana. He noted that in 2004, he was recognized by the department for performing more undercover work than any other trooper in the department and was awarded investigator of the year. He further noted that post-academy, he had over 2000 additional hours of training related to narcotics enforcement and investigations. Finally, Trooper Rhodes indicated that he previously qualified as an expert three times in the 17th Judicial District in Lafourche Parish. The trial court accepted Trooper Rhodes as an expert in the distribution and consumption of illegal controlled dangerous substances in Terrebonne Parish.
We note that the defendant did not contemporaneously object when Trooper Rhodes testified about the potential fatal result of a binge on the amount of cocaine seized in this case or for mixing the drugs seized in this case. Further, the defense attorney solicited additional testimony regarding drug overdoses. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. La. Code Evid. art. 103(A)(1); La. Code Crim. P. art. 841. Thus, the defendant did not preserve the argument for appeal that Trooper Rhodes exceeded the expertise determined applicable by the trial court. Further, we find no abuse of discretion in the trial court's ruling that Trooper Rhodes could testify as an expert witness. The officer's expertise was derived from extensive experience and training of the sort that has been found to be sufficient in similar cases. See State v. Addison, 2005-378, pp. 18-21 (La. App. 5 Cir. 12/27/05), 920 So.2d 884, 896-897, writ denied, 2006-1087 (La. 11/9/06), 941 So.2d 36. Further, a police officer does not need scientific credentials and a scientific methodology in order to testify as an expert regarding the distinctions between narcotics dealers and street-leve! users. State v. Mosley, 2008-1318, pp. 14-15 (La. App. 5 Cir. 5/12/09), 13 So.3d 705, 714-715, writ denied, 2009-1316 (La. 3/5/10), 28 So.3d 1002. Scholarly writing and peer review are not things commonly associated with police work. Trooper Rhodes's specialized knowledge assisted the jury in understanding the evidence and determining facts. Based on the foregoing, we find that assignment of error number five is without merit.
ASSIGNMENT OF ERROR NUMBER SIX
In the final assignment of error, the defendant notes that the longest sentence imposed by the trial court was the thirty-year statutory maximum sentence on the possession with intent to distribute cocaine offense. The defendant contends that the most significant factor considered by the trial court in imposing that sentence was the fact that the victim of the aggravated battery was a police officer. The defendant argues that this should not have been considered an aggravating factor in the imposition of the sentence on the drug offense since he was also sentenced to the statutory maximum for the aggravated battery and attempted disarming of a police officer. The defendant argues that the maximum sentences on those offenses were more than sufficient to address the conduct related to the law enforcement officer. Accordingly, the defendant concludes that the maximum sentence on the cocaine conviction is excessive under the circumstances based on what he describes as weak and circumstantial evidence of constructive possession of cocaine that was located in an open field at an amount that could have been construed as consistent with personal use.
The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within the statutory limits. State v. Andrews, 94-0842, pp. 8-9 (La. App. 1 Cir. 5/5/95), 655 So.2d 448, 454.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231, p. 4 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-1052 (La. 1981).
Herein the defendant contests the sentence of thirty years imprisonment at hard labor imposed on the possession of cocaine with intent to distribute offense, the maximum sentence allowed by statute. See La. R.S. 40:967(B)(4)(b). As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. James, 2002-2079, p. 17 (La. App. 1 Cir. 5/9/03), 849 So.2d 574, 586. Also, maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Hilton, 99-1239, p. 16 (La. App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113.
We note that in this case the State filed, but later withdrew, a habitual offender bill of information alleging prior felony drug offenses, sexual battery, and false imprisonment. In imposing the sentences the trial court noted the defendant's extensive criminal history and the fact that the victim in this case was a peace officer engaged in his duties. The court noted its consideration of the factors in Article 894.1 and the fact that the defendant was injured and confrned to a wheelchair, having been shot during the course of the instant incident.
We find that the trial court's reasons for the sentence adequately demonstrate compliance with Article 894.1. Considering the trial court's review of the circumstances, the defendant's criminal record, and the nature of the offense at issue, we find no abuse of discretion by the trial court. We note that drug offenses are not victimless crimes. In fact, drug offenses affect society in general through higher medical costs, higher unemployment rates, loss of tax revenue from those unemployed, and associated crimes. See State v. Johnson, 97-1906, p. 11 (La. 3/4/98), 709 So.2d 672, 678. The record consists of ample justification for the imposition of the maximum sentence allowed by law. This court will not set aside a sentence on the ground of excessiveness if the record supports the sentence imposed. La. Code Crim. P. art. 881.4(D). The sentence imposed is not grossly disproportionate to the severity of the offense or shocking to the sense of justice and, therefore, is not unconstitutionally excessive. Thus, we find no merit in assignment of error number six.
CONVICTIONS AND SENTENCES AFFIRMED.
STATE OF LOUISIANA
VERSUS
SIDNEY WILLIAMS, III
NO. 2012 KA 1600
KUHN, J., dissenting in part.
Although I agree with the majority's affirmance of defendant's convictions of aggravated battery, possession with intent to distribute hydrocodone, oxycodone, and cocaine; as well as that for possession of propoxyphene, I disagree with the affirmance of his conviction for possession of butalbital. A review of the evidence (the Scientific Analysis Report, Exhibit # S-10) indicates that defendant's possession of butalbital was in combination with 325 mg of acetaminophen (and 40 mg of caffeine), making the possession legal. See La. R.S. 40:964, Schedule 111(B)(3) and La. R.S. 40:968(C).
While the plain language of La. C.Cr.P. art. 920(2) states, "The following matters and no others shall be considered on appeal ... [a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence," in this case defendant has challenged the sufficiency of the evidence in his assigned errors on appeal. During our review of the evidence in conjunction with that assignment of error, it was discovered that defendant's possession of butalbital was in combination with 325 mg of acetaminophen. Therefore, defendant was clearly convicted of behavior that was not illegal. I believe we cannot turn a blind eye to this fundamental error. Accordingly, I dissent.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 LEd.2d 215 (1963).