97 2774 La.App. 4 Cir. 2/3/99, State v. Mitchell
| Decision Date | 03 February 1999 |
| Citation | 731 So.2d 319 |
| Parties | 97 2774 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Richard P. Ieyoub, Attorney General, State of Louisiana, Darryl W. Bubrig, Sr., District Attorney, 25 th Judicial District, Parish of Plaquemines, Pointe-A-La-Hache, Louisiana, and Gilbert V. Andry III, Assistant District Attorney, New Orleans, Louisiana, Attorneys for Plaintiff-Appellees State of Louisiana.
Yvonne Chalker, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Defendant-Appellant Charles R. Mitchell.
Court composed of Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES III, Judge STEVEN R. PLOTKIN.
[98 1129 La.App. 4 Cir. 1] KLEES, Judge.
On June 13, 1996 in # 96-2876 the State filed a bill of information charging the defendant, Charles R. Mitchell (a/k/a Ernest Sparks a/k/a Robert Jones) along with Brenda Carter and Melvin Marvin 1 with possession of marijuana, a violation of La. R.S. 40:966(D), and possession of drug paraphernalia, a violation of La. R.S. 40:1033(C). The same date in # 96-2877 the State filed a bill of information charging the defendant along with Carter and Marvin with possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A)(1). The same date in # 96-2878 the State filed a bill of information charging the defendant along with Carter and Marvin with illegal possession of stolen things, a gun, valued over $100 but less than $500. 2
On June 13, 1996 the defendant was arraigned and pleaded not guilty in # 96-2876, 96-2877, and 96-2878. On July 3, 1996 a consolidated hearing on the motions to suppress in # 96-2876, 96-2877, and 96-2878 was held. On July 11, 1996 the motions to suppress evidence for each defendant in each case were denied. Although the record contains a notice of intent to take writs by Mitchell and Carter in # 96-2876, there is nothing to indicate that the applications were filed.
The original bill in # 96-2877 charged possession of cocaine with intent to distribute under La. R.S. 40:967(A)(1). The record contains a granted motion to amend the bill (filed by the State on September 25, 1996 and signed by the judge on September 27, 1996), which amended the bill to charge possession of cocaine [98 1129 La.App. 4 Cir. 2] over 200 grams with intent to distribute under R.S. 40:967(A)(1) and (F)(b). The record also contains a subsequently granted motion to amend the bill (filed by the State on October 16, 1996 and signed by the judge on October 17, 1996), which charged possession of cocaine over 200 grams under R.S. 40:967(C) and (F)(b). According to the October 22, 1996 minute entry, the State again amended the bill of information to charge possession of cocaine with intent to distribute. The defendant withdrew his former not guilty plea and pleaded guilty in # 96-2877, possession of cocaine with the intent to distribute. The defendant reserved his right to appeal the pre-trial rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The record does not contain a transcript relating to the guilty plea. On January 23, 1997 the trial court sentenced the defendant to fifteen years in the custody of the Department of Corrections with credit for time served. The defendant filed a motion to reconsider sentence.
According to the April 17, 1997 transcript, the defendant withdrew his former not guilty pleas in # 96-2876 and 96-2878, and pleaded guilty. There was no mention of State v. Crosby in the transcript, the minute entry, or the waiver of rights form. 3 The defendant waived the sentencing delays and was sentenced to: six months in the parish jail on Count 1 of # 96-2876, possession of marijuana; six months in the parish jail on Count 2 of # 96-2876, possession of drug paraphernalia; and eighteen months at hard labor on # 96-2878, illegal possession of stolen things. The sentences in # 96-2876 and # 96-2878 were to run concurrently with each other and the sentence in # 96-2877.
On June 4, 1997 the defendant filed a motion for out-of-time appeal in # 96-2876, which was granted. The appeal record was lodged December 8, 1997. A [98 1129 La.App. 4 Cir. 3] supplemental volume containing the transcript of the hearing on the motions was filed February 26, 1998. Two other records for cases # 96-2877 and # 96-2878 (consolidated here--# 98-KA-1128 and # 98-KA-1129) were lodged May 8, 1998.
Sgt. Gerald Turlich of the Plaquemines Parish Sheriff's Office testified that on April 11, 1996 he was on patrol about 1:30 a.m. in the area of Barriere Road. He was traveling south on Beta Street when he stopped at a stop sign. He saw a four-door blue station wagon pass in front of him traveling east on Barriere Road heading toward Highway 23. Sgt. Turlich made a left turn onto Barriere Road and went behind the vehicle. He saw a temporary license tag in the rear window, and the tag was "tampered with" or torn. The right half was a good bit lower than the left half. It appeared to be old and not valid. He could not see the expiration date. Sgt. Turlich testified that the first three numbers of the tag, 455, were relatively new numbers, but he had found numerous temporary license tags with those numbers that were not valid. He put on his overhead lights, and the vehicle pulled into a parking lot. Sgt. Turlich pulled in on the side of the vehicle at a right angle. He then saw that the driver was partially turned away from him and leaning over the back seat. Sgt. Turlich asked the driver to step out with his driver's license and registration. The driver, the defendant, handed the officer a Louisiana identification card in the name of Ernest Sparks, but produced no driver's license. The defendant also gave him proof of expired registration in the name of Anita Miller. Meanwhile Sgt. Turlich noticed that the passenger in the back seat was very nervous and was moving back toward the officer and then to the middle of the seat. The back seat passenger, later identified as Merlin Martin, attempted to exit [98 1129 La.App. 4 Cir. 4] the vehicle once, and the defendant pushed him back into the car. Brenda Carter was the passenger in the front seat.
Sgt. Turlich became suspicious. The officer asked the defendant if he worked at Padua House because Sgt. Turlich had never seen him in the area before. The defendant said that he lived in the Paradise Apartments and was coming from there. He later said that he was coming from Avondale. By this time Deputies Roberts and Williams had come to assist. Sgt. Turlich asked the defendant to step to the rear of the car. Sgt. Turlich then asked Martin, the passenger in the back seat, to step out of the vehicle. Brenda Carter was the passenger in the front seat. Martin stepped out, took two or three steps, ripped open his jacket, and a white substance, which appeared to be cocaine, fell to the ground. Martin started running westbound along Barriere Road, continually dropping the substance. He dropped a bag and his jacket in a parking lot, and he continued running. The officers recovered the cocaine dropped by Martin along with the jacket. Sgt. Turlich and Deputy Roberts pursued him on foot, but they lost him along Colbert Street. A K-9 team was called out, and the dog tracked Martin to a stairway at the Paradise Apartments. However, the dog lost the scent because of a number of police officers smoking in the stairway. Martin was later apprehended by Deputy Roberts after a 107 call, a suspicious person in the area of Barriere Road and Epsilon Street, came over the radio.
Sgt. Turlich returned to the stopped station wagon, and Deputy Williams had secured the scene and placed the defendant and Carter in the front seat in handcuffs. Sgt. Turlich saw in plain view a lot of loose powder chunks on the back seat floorboard along with a scale covered in the powder on the rear driver's side [98 1129 La.App. 4 Cir. 5] floorboard. The defendant and Carter were arrested and read their rights. 4 Carter and the defendant were separated and asked some questions. Carter said that she and the defendant did not know Martin or that he had cocaine when they picked him up. She stated they were in the area to check out an apartment. The defendant said that he and Carter picked Martin up along the canal and did not know that he had cocaine.
The temporary tag was torn and had been taped together with duct tape. There was no valid brake tag. The car was registered to Brenda Carter, who lived at 606 Barriere Road, Apt. 16. The apartment had been rented to Carter and Robert Jones (the defendant). Sgt. Turlich gave citations to the defendant for operating a vehicle without a driver's license and without a current brake tag. Sgt. Turlich said that the stories told by Carter and the defendant were different and "[n]one of it added up." Sgt. Turlich figured that the defendant and Carter knew Martin.
Sgt. Turlich stated that Deputy Bowers worked with him on an application to obtain a search warrant for Carter's residence after the vehicle had been towed to the lock-up. Sgt. Turlich based the need for a warrant on the fact white powder was found in the vehicle and Martin dropped a large quantity as he ran from the police. A scale covered with the white powder was found in the station wagon. The vehicle was registered to Brenda Carter, who lived on Barriere Road. The officers set up a surveillance for several hours, but they saw nothing suspicious. Sgt. Turlich and the deputies gained access to the apartment by means of the [98 1129 La.App. 4 Cir. 6] manager's key. The quantity of cocaine recovered from the car, the ground and the apartment was twelve and one-half ounces.
Agent Warren Gilbert, a narcotics officer, testified that the scale in the back seat of the car appeared to be covered by cocaine, and the substance on the back floorboard appeared to be cocaine. 5 He vacuumed out the...
To continue reading
Request your trial