97-21 La.App. 5 Cir. 4/29/97, State v. Rowan

• Decision Date: 29 April 1997
• Citation: 694 So.2d 1052
• Parties: 97-21 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1052

694 So.2d 1052

97-21 La.App. 5 Cir. 4/29/97

STATE of Louisiana v. Kenneth ROWAN.

No. 97-KA-21.

Court of Appeal of Louisiana, Fifth Circuit.

April 29, 1997.

Gary W. Bizal, Pierce & Bizal, New Orleans, for Appellant Kenneth Rowan.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent Paciera, Jr., Assistant District Attorney, Research & Appeals, Gretna, for State.

DUFRESNE, WICKER and CANNELLA, JJ.

[97-21 La.App. 5 Cir. 2] CANNELLA, Judge.

Defendant, Kenneth Rowan (Rowan), appeals his conviction of two counts of distribution of cocaine. We affirm and remand.

Defendant was charged by bill of information filed on August 24, 1995 with two counts of distribution of cocaine in violation of La. R.S. 40:967(A). He proceeded to a bench trial on March 4, 1996, following which, he was found guilty on both counts. After denying defendant's motion for post verdict judgment of acquittal on May 6, 1996, the trial judge sentenced defendant to five years at hard labor on each count, to be served concurrently. The court then suspended the sentences and placed the defendant on active probation for a term of three years subject to various conditions.

In response to information received from a confidential informant on January 20, 1995, Sergeant Joe Williams (Sergeant Williams) instructed Agent Michael Jackson (Agent Jackson) to proceed to 1408 Ames Boulevard in [97-21 La.App. 5 Cir. 3] Marrero, Louisiana in order to purchase crack cocaine from a subject named Kenneth Rowan. After providing Agent Jackson with "enough pre-recorded currency" and equipping him with a "Unitel transmitter," Sergeant Williams and three or four other officers proceeded to the 1400 block area of Ames Boulevard in separate units in order to conduct "surveillance ... to cover the purchase." However, because of his "notoriety ... in the area," Sergeant Williams parked out of view of the transaction.

Subsequently, Agent Jackson and a confidential informant arrived at the address and knocked on the door. A male subject opened the door. When Agent Jackson asked to speak to Rowan, the subject closed the door. Within minutes the door was opened by another male whom the confidential informant then introduced to Agent Jackson as Kenneth Rowan. Agent Jackson stepped inside of the residence while the confidential informant remained standing outside. After Rowan closed the door, Agent Jackson informed him that he wanted five rocks of crack cocaine. Rowan then proceeded to the rear of the residence. After he returned with the rocks of crack cocaine, Rowan sold them to Agent Jackson.

On February 1, 1995, Sergeant Williams again instructed Agent Jackson to proceed to 1408 Ames Boulevard in order to purchase crack cocaine from Rowan, based on information from a confidential informant. Like the previous occasion, Sergeant Williams provided Agent Jackson with currency and a transmitter, and after proceeding to the address, Sergeant Williams positioned his unit where it was not visible from the residence. However, this time Agent Jackson was working without the assistance of the confidential informant. Upon arriving at the address at approximately 1:10 P.M., Agent Jackson knocked on the door. Rowan answered the door and Agent Jackson asked him for five rocks of crack cocaine. Rowan then walked to the rear of his residence where he obtained the five rocks of crack cocaine which he sold to Agent Jackson.

[97-21 La.App. 5 Cir. 4] Following each purchase, Agent Jackson and the officers conducting surveillance proceeded to a pre-arranged location where Agent Jackson submitted the evidence and details of each transaction.

On appeal, Rowan first contends that the evidence was insufficient to establish beyond a reasonable doubt that Rowan was guilty of a violation of La. R.S. 40:967. Second, he asserts that the trial judge committed reversible error when he refused to grant his request for Brady material.

In his first assignment of error, Rowan contends that the evidence was insufficient. Specifically, he argues that the State failed to negate the reasonable probability of misidentification.

The standard to be used by the appellate court in evaluating the sufficiency of the evidence is, whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). Encompassed in proving the elements of the offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Bovie, 95-474 (La.App. 5 Cir. 11/28/95), 665 So.2d 558, 560 State v. Thomas, 604 So.2d 52, 57 (La.App. 5 Cir.1992).

Rowan bases his argument on several factors: (1) the conflicting times of the January 20th drug transaction; (2) the issuance of an arrest warrant for a Kenneth Rowan before he was identified in photo lineup; (3) occurrence of Agent Jackson's identification during the photo lineup before the second drug transaction on February 1, 1995; (4) Agent Jackson's misidentification of drug suspects in two previous cases, one which was dismissed and the other resulting [97-21 La.App. 5 Cir. 5] in acquittal; and (5) uncontradicted evidence of his alibi during the time of both drug transactions.

At trial, Agent Jackson positively identified Rowan as the individual who sold him crack cocaine on two different occasions. Agent Jackson testified that on each occasion he had ample opportunity to observe Rowan and that each sale occurred under "bright" lighting conditions. Additionally, at 10:02 A.M. on February 1, 1995, just over three hours prior to the second sale, Agent Jackson was shown a photographic line-up in which he positively identified Rowan as the individual who sold him crack cocaine on January 20, 1995.

Agent Jackson further testified that the sale on January 20, 1995 occurred at approximately 3:52 P.M. rather than at 4:20 P.M., as reported in a Jefferson Parish Sheriff's Office case report. Agent Jackson stated that he remembered that the transaction occurred at 3:52 P.M. because, when he arrived at Rowan's residence, he looked at his beeper which showed the time. He also noted that the affidavit prepared by Agent Brandon Johnson on January 24, 1995 corroborated that the transaction occurred at approximately 3:52 P.M. When cross-examined about the discrepancy regarding the time of the transaction of January 20, 1995, Agent Jackson stated that the case report was prepared by Agent Johnson and that he incorrectly reported the time of the transaction.

Agent Jackson at first testified that his real name is Michael Jackson, but on cross-examination admitted that the name Michael Jackson was a fictitious name which he used while working in an undercover capacity. He was cross-examined regarding his identification in two other criminal cases involving David Lackey and Leonard Veal. Agent Jackson testified that he had identified Lackey and Veal as individuals who had sold him drugs. However, the State dismissed one of the two counts against Lackey because, at the time of one of the transactions, Lackey was incarcerated. Veal presented an alibi defense at trial and he was subsequently acquitted of the charge. When questioned about his [97-21 La.App. 5 Cir. 6] identifications of Lackey and Veal, Agent Jackson stated that he was still certain about his identification of them as drug perpetrators.

In presenting an alibi, the defense presented testimony and documents in an attempt to show that Rowan was driving his school bus at the time of the two drug sales. Specifically, he introduced a 1994-95 school session sick leave form. Dale Boudreaux (Boudreaux) of the Jefferson Parish School System testified that the form reflected that there was no substitute bus driver assigned to drive Rowan's bus on either January 20, 1995 or February 1, 1995. However, during cross-examination, Boudreaux testified that he would not know if someone else drove the bus unless defendant or someone told him or someone at the school saw the substitute.

Defendant testified on cross-examination that there were occasions when, instead of informing the school board that he needed a substitute, he would call the substitute directly. In addition, his fiancee testified that she was also a school bus driver, was familiar with Rowan's route, had ridden the route with him and was not employed on the dates of the drug transactions.

We find that the evidence was sufficient for the convictions. The testimony established that the same person sold drugs twice to Agent Jackson at the same location. Agent Jackson had ample opportunity to observe the seller and each sale occurred under good lighting conditions. During the first transaction, the confidential informant introduced a man as Kenneth Rowan and the man answered to the name of Kenneth Rowan. Prior to the second transaction, Agent Jackson positively identified defendant's photo in a lineup as the man who had sold him drugs during the first transaction. About three hours later, Agent Jackson went to the same address and purchased drugs from the man he had identified and knew as Kenneth Rowan. Defendant, whose name is Kenneth Rowan, was identified at the trial by Agent Jackson as the man who sold the cocaine during the two transactions.

[97-21 La.App. 5 Cir. 7] The identity of the man who sold Jackson the cocaine is a factual matter, about which there is conflicting testimony. Given the alibi defense, Rowan is actually raising the issue of credibility of the witnesses, rather than sufficiency of the evidence. State v. Bovie, 665 So.2d at 560-561. In this respect, despite the conflicting evidence of the time of the ...