97-1244 La.App. 3 Cir. 3/6/98, State v. Lewis
| Decision Date | 06 March 1998 |
| Citation | 728 So.2d 1 |
| Parties | 97-1244 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Robert Richard Bryant Jr., Lake Charles, for State.
Phyllis E. Mann, Alexandria, for Clarence Lewis.
Before DECUIR, AMY and PICKETT, Judges.
[97-1244 La.App. 3 Cir. 1] AMY, Judge.
The defendant, Clarence Lewis, was convicted of possession of cocaine, a violation of La.R.S. 40:967(C). He was subsequently adjudicated a second habitual offender and was sentenced to three years at hard labor. He appeals his conviction and sentence. We affirm.
The instant matter arose on September 16, 1995 when deputies from the Calcasieu Parish Sheriff's Office were dispatched to an area of the parish pursuant to a call regarding suspected drug activity. According to their trial testimony, when the deputies arrived in the reported area, they saw four individuals, including the defendant, Clarence Lewis. After speaking with the individuals, one of the deputies asked the defendant if he had any weapons. According to the deputy, the defendant stated that he had a knife, and allowed the deputy to retrieve the knife from his pocket. As he was doing so, the deputy felt a hard metal object. This object was pulled from [97-1244 La.App. 3 Cir. 2] defendant's pocket and later identified as a crack pipe. Subsequent to this discovery, the defendant was arrested for possession of drug paraphernalia and possession of a Controlled Dangerous Substance, Schedule II.
Subsequent to this arrest, the defendant was charged on October 25, 1996, by grand jury indictment, with one count of possession of cocaine, a violation of La.R.S. 40:967(C). The defendant entered a plea of not guilty to the charge on December 16, 1996. Following a jury trial, the defendant was found guilty as charged on May 29, 1997. 1 On that same date, a habitual offender bill was filed, charging the defendant as a second habitual offender. The defendant denied the habitual offender charges and a hearing was held on this issue on June 24, 1997. The trial court found the evidence sufficient to adjudicate the defendant a habitual offender. Following this adjudication, the defendant was sentenced on July 17, 1997 to three years at hard labor, to run consecutive to any other time he was required to serve due to probation or parole violations.
The defendant now appeals his conviction and sentence, alleging seven assignments of error and several pro se assignments of error. 2
[97-1244 La.App. 3 Cir. 3] DISCUSSION
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record discloses two errors patent.
First, the defendant was not informed of his right to remain silent at his habitual offender adjudication. However, this court has previously found that only harmless error results from the trial court's failure to advise of this right when the defendant remains silent throughout the proceeding and the State presents competent evidence to prove the existence of the defendant's prior conviction and his identity as the person previously convicted. State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575, citing State v. Hodges, 94-898 (La.App. 3 Cir. 3/1/95), 651 So.2d 487. We find this rule applicable in the present case as the defendant denied the allegations contained in the habitual offender bill and a hearing was subsequently held at which time the State introduced documentary evidence of his prior convictions. Thus, we conclude that any error is harmless.
Our review also reveals that the defendant was not given credit toward service of his sentence for time he spent in actual custody prior to the imposition of the sentence. 3 Accordingly, we amend the sentence to reflect that the defendant is given [97-1244 La.App. 3 Cir. 4] for time he served prior to the imposition of the sentence and remand the case to the district court with orders to amend the commitment and minute entry of the sentence to reflect credit for time served in conformity with La.Code Crim.P. art. 880. See La.Code Crim.P. art. 882(A).
By this assignment, the defendant claims the evidence was insufficient to support the verdict of possession of cocaine. He contends that the State failed to prove he "knowingly and intentionally had an invisible amount of cocaine residue in a small piece of metal pipe in his pocket." The defendant asserts as "a quite reasonable hypothesis of innocence" that he "found and put in his pocket a small piece of metal pipe, not knowing that it contained invisible amounts of cocaine." He further argues the following Mr. Cornell Chaumont testified that he performed the test on the residue contained in the metal pipe in Mr. Lewis's pocket and that pipe contained cocaine. [ ] Mr. Chaumont, the State's expert, also testified that the residue contained in the pipe had "no weight." [ ] He explained "Residue is not a visible thing sometimes." [ ] Further, he agreed that the only way he could tell there was cocaine residue in the pipe received from Mr. Lewis was by pouring a solvent into the pipe. [ ] If Mr. Chaumont could not see the cocaine residue in the pipe, in all likelihood neither could Mr. Lewis.
If sufficiency of the evidence is raised on appeal, an appellate court must consider whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). Additionally, as the fact finder is given the role of weighing the credibility of [97-1244 La.App. 3 Cir. 5] an appellate court should not second guess this determination beyond the Jackson sufficiency evaluation. See State ex rel. Graffagnino, 436 So.2d 559.
With regard to the State's burden of proof in a case similar to the instant matter, the fourth circuit has recently stated as follows:
To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant was in possession of the illegal drug and that he knowingly or intentionally possessed the drug. La. R.S. 40:967; State v. Chambers, 563 So.2d 579 (La.App. 4 Cir.1990). Guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance. State v. Goiner, 410 So.2d 1085 (La.1982). Although a conviction for possession of a controlled dangerous substance can stand on the possession of the slightest amount of the drug, the amount of the substance will have some bearing on the defendant's guilty knowledge. State v. Spates, 588 So.2d 398 (La.App. 2 Cir.1991).
State v. Taylor, 96-1843, p. 6-7 (La.App. 4 Cir. 10/29/97), 701 So.2d 766, 771.
In attempting to meet this burden, the State presented the testimony of Deputy Phillip David Nolen, the deputy who retrieved the pipe at issue. Deputy Nolen testified that he pulled a "metal pipe approximately five inches long" from the defendant's pocket. When asked the common street name for that type of pipe, Deputy Nolen replied, "[a] crack pipe." He stated that the retrieved pipe was burned on both ends. Additionally, he gave the following description when asked what a crack pipe usually looks like:
It's a long--or, I say long, it's a metal pipe, slender. It doesn't have any curves in it. It has--normally crack pipes are burnt on both ends, and on one side of the crack pipe they do have a--they stuff a Brillo pad, like wiry mesh, in there, and that's where they place the crack, and they heat it up, and they smoke it through the pipe.
When asked whether the crack pipe found in the present case had any other purpose other than to smoke crack cocaine, Deputy Nolen responded, "No, sir." On cross-[97-1244 La.App. 3 Cir. 6] Deputy Nolen further described the pipe in question as having wire mesh with burnt residue on one end, residue he assumed was cocaine.
Deputy Kelvin LeDoux, a deputy who also responded to the offense at issue, testified and identified a chrome object being presented at trial by the prosecution as "a smoking pipe for the crack cocaine." He stated that the pipe looked like the object taken from the defendant's pants and also testified the "copper mesh-type material" in the pipe taken from the defendant had a burned residue suspected to be crack cocaine.
Deputy Micah Benoit, another deputy responding to the scene, testified that he did not see Deputy Nolen actually recover the object from the defendant, but did see a "small, tube-like pipe, silver in color." He stated that the object looked like a crack pipe. When asked what he saw in the pipe found at the scene, Deputy Benoit testified, "[s]ome Brillo had been shoved down, and it's been burnt." When asked if he saw some burned residue suspected to be crack cocaine residue, Deputy Benoit responded, "Yes, sir."
In order to establish the nature of the residue in the pipe, the State presented Cornell Chaumont, a forensic chemist with the Southwest Louisiana Crime Lab. He testified that his testing on the residue found in the pipe in question revealed the presence of cocaine.
In State v. Jones, 94-1261 (La.App. 3 Cir. 5/17/95), 657 So.2d 262, this court upheld the defendant's possession of cocaine conviction under facts similar to those in the present case. In Jones, officers found a shiny chrome crack pipe with a scorched blackened end and a clear plastic bag containing a substance resembling crack cocaine. These objects had allegedly been thrown by the defendant while fleeing from the [97-1244 La.App. 3 Cir. 7] Although the substance in the plastic was found to be counterfeit cocaine, the residue inside the pipe tested positive for cocaine. Like the defendant in...
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