94-1423 La.App. 4 Cir. 11/13/96, State v. Addison

• Decision Date: 13 November 1996
• Citation: 684 So.2d 477
• Parties: 94-1423 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 477

684 So.2d 477

94-1423 La.App. 4 Cir. 11/13/96

STATE of Louisiana v. Sammie L. ADDISON & Demetrius Addison.

No. 94-KA-1423.

Court of Appeal of Louisiana,

Fourth Circuit.

Nov. 13, 1996.

Harry Connick, District Attorney and Mark D. Pethke, Assistant District Attorney, New Orleans, for the State of Louisiana.

Donald O. Pinkston, New Orleans, for Defendants.

Before BARRY, BYRNES and MURRAY, JJ.

[94-1423 La.App. 4 Cir. 1] MURRAY, Judge.

Sammie Addison appeals his conviction for attempted possession with intent to distribute cocaine, and his brother, Demetrius Addison, appeals his conviction for possession with intent to distribute cocaine. The latter defendant also appeals his adjudication under the multiple offender statute. For the reasons which follow, we affirm the convictions but vacate the multiple offender adjudications, and remand for further proceedings.

FACTS

On the evening of June 4, 1992, uniformed New Orleans Police officers Wilbert Williams and James B. Adams were on routine patrol in a marked car when they observed a dark-colored Cadillac with four occupants disregard a stop sign. With blue lights flashing, the officers pulled along the side of the Cadillac to stop it and observed the driver, Sammie Addison, throw something down to the [94-1423 La.App. 4 Cir. 2] floor. Sammie Addison was ordered out of the car, which was stopped beneath a street light. As the officers walked towards the vehicle, which was lit by the interior lights from Mr. Addison's open door, they looked inside for weapons. Bags of crack cocaine were clearly visible on the floorboard by the driver's seat, between the legs of the passenger on the left rear, Demetrius Addison, and a large rock of cocaine was seen between the legs of a juvenile seated in the right rear of the vehicle. The bag near Sammie Addison, the driver, contained fifty-nine rocks of cocaine, while the other bag between Demetrius Addison's legs contained thirty-four rocks of cocaine.

Both Sammie and Demetrius Addison testified that the cocaine all belonged to Demetrius and the juvenile and that Sammie was just giving them a ride and knew nothing about it. Demetrius Addison admitted that he possessed the cocaine and that his intent was to sell it.

SAMMIE ADDISON'S PRO SE ASSIGNMENTS OF ERROR

Assignments one and two

Sammie Addison asserts that the trial court erred in its failure to advise the defendants of the dangers of joint representation and its failure to ascertain that the defendants understood that a conflict could arise during the trial. Generally, a criminal defendant who raises the issue of ineffective assistance of counsel based on joint representation of co-defendants prior to trial is entitled to automatic reversal on a showing of actual conflict of interest; no proof of prejudice is required. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). However, if the defendant fails to raise the issue until after trial, he must prove prejudice in addition to actual conflict of interest. Cuyler v. Sullivan, 446 [94-1423 La.App. 4 Cir. 3] U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); See State v. Edwards, 430 So.2d 60, 62 (La.1983).

In the present case, there could have been a conflict if each of the Addison brothers accused the other of possessing all of the cocaine. However, both brothers testified that Demetrius and the juvenile were in possession of the cocaine, and that Sammie, the defendant making this claim, did not know that the others had drugs on them. The fact that the trier of fact failed to believe their story is not the fault of the joint representation. In any event, any conflict would have prejudiced Demetrius in this case, as the defense presented clearly was intended to protect Sammie. However, Demetrius would likewise be unable to prove prejudice, as he testified first and admitted every element of the offense. These assignments thus have no merit.

Assignment three

Sammie Addison next contends that the trial court erred in taking testimony on a second count of possession with intent to distribute, on which he was found not guilty, before ruling on the first, thus placing him in double jeopardy. However, the charges were for two separate but similar offenses, both triable by a twelve-person jury. Article 493 of the Code of Criminal Procedure states that "[t]wo or more offenses may be charged in the same indictment or information ... if the offenses ... are of the same or similar character" and are "triable by the same mode of trial." Therefore, the two charges were properly tried together. The fact that the state put forth the evidence first as to one count and then the other did not make separate trials necessary. Double jeopardy applies when one is tried twice for the same offense, not when two offenses are tried together. This assignment is also without merit.

[94-1423 La.App. 4 Cir. 4] Assignment four

Sammie Addison also argues that trial counsel was ineffective because he recommended a judge trial, was inexperienced in handling cases of joint representation, was unprepared for trial, and he failed to discuss the issues with the defendants.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

In this case, counsel's recommendation of a bench trial falls within the ambit of trial strategy, which does not establish ineffective assistance of counsel. State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4th Cir.1986). The record is insufficient to determine the merit of the other claims on appeal; they may be raised by an application for post-conviction relief.

Assignment five

Sammie Addison next asserts that the trial court erred in admitting evidence seized pursuant to an illegal search. He contends that he got out of the car and walked towards the police officer after the stop, thereby making it unnecessary for the police to look inside the vehicle. However, there was no testimony to that effect at either the hearing on the motion to suppress evidence or at trial. Instead, the evidence shows that Mr. Addison remained near his car as the officers approached him.

[94-1423 La.App. 4 Cir. 5] A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La.Code Crim Proc. Ann. art. 215.1. "Reasonable suspicion" for an investigatory stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient articulable facts within his knowledge to justify an infringement of the suspect's rights. State v. Matthews, 94-2112 (La.App. 4th Cir. 4/26/95), 654 So.2d 868; State v. Vance, 93-1389 (La.App. 4th Cir. 2/25/94), 633 So.2d 819. An officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. White, 27,188, p. 3 (La.App.2d Cir. 8/23/95), 660 So.2d 515, 519. Once an individual is stopped, an officer may make a protective search of the suspect for his own safety and the safety of others. La.Code Crim. Proc. Ann. art. 215.1 B; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Davis, 92-1623, p. 22 (La.5/23/94), 637 So.2d 1012, 1025, cert. denied, Davis v. Louisiana, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

In this case, the officers properly made an investigatory stop after the driver of the vehicle disregarded a stop sign. Because Sammie Addison was seen "fidgeting" and "throwing something down" before the officers approached the car, in which several others remained, they were justified in looking inside for weapons for their own safety. Additionally, the officers lawfully seized the cocaine pursuant to the "plain view" exception to the warrant requirement:

For evidence to be seized under [the plain view] exception, "(1) there must be a prior justification for the intrusion into a protected area; (2) in the course of which the evidence is inadvertently [sic] discovered; and (3) where it is immediately apparently [sic] without close [94-1423 La.App. 4 Cir. 6] inspection that the items are evidence or contraband." State v. Hernandez, 410 So.2d 1381, 1383 (La.1982). See also State v. Taylor, 531 So.2d 1137 (La.App. 4th Cir.1988). In Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Court held that evidence found in plain view need not have been found "inadvertently" in order to fall within this exception to the warrant requirement, although in most cases evidence seized pursuant to this exception will have been discovered inadvertently.

State v. Tate, 623 So.2d 908, 917 (La.App. 4th Cir.), writs denied, 629 So.2d 1126, 1140 (La.1993). Therefore, this assignment of error has no merit.

Assignment six

Sammie Addison finally contends that the state failed to produce the initial police report to defense counsel before trial, despite counsel's request. The record is insufficient to consider this claim on appeal. If Mr. Addison's attorney requested the report and it was not furnished, counsel may have waived production if he failed to object prior to trial. Additionally, unless the report contained evidence favorable to the defense, or there were material differences in the testimony of state witnesses and the report, there would be no prejudice. Like the claim for ineffective assistance of counsel, this claim may be raised by a post-conviction application so that there can be a full evidentiary hearing on the issue.

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