State v. Campbell, 99-KA-0892.

• Decision Date: 03 January 2001
• Docket Number: No. 99-KA-0892.,99-KA-0892.
• Citation: 778 So.2d 636
• Parties: STATE of Louisiana v. David CAMPBELL.
• Court: Court of Appeal of Louisiana — District of US

778 So.2d 636

STATE of Louisiana v. David CAMPBELL.

No. 99-KA-0892.

Court of Appeal of Louisiana, Fourth Circuit.

January 3, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Harry F. Connick, District Attorney, Jane L. Beebe, Assistant District Attorney, New Orleans, Counsel for Plaintiff-Appellee.

Sherry Wafters, Louisiana Appellate Project, New Orleans, Counsel for Defendant-Appellant.

(Court composed of Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN Judge DENNIS R. BAGNERIS, Sr.).

BAGNERIS, Judge.

On April 15, 1997, a bill of information was filed charging the defendant, David Campbell, with one count of possession of cocaine with intent to distribute and one count of possession of a dangerous weapon by a convicted felon.¹ The defendant was arraigned and pled not guilty on May 9, 1997. Following a hearing on May 29, 1997, the trial court found probable cause and denied the defendant's motions to suppress evidence and statement. Defendant's original trial counsel withdrew from the case on June 4, 1997, and the court appointed the Orleans Indigent Defenders Program to represent the defendant.

Prior to the trial of the case on October 29, 1997, defense counsel orally requested a continuance. The trial court denied the motion to continue. The trial court then granted the State's oral motion to sever the trial of the possession of a dangerous weapon charge from the trial of the possession with intent to distribute cocaine charge. Trial of the possession of cocaine with intent to distribute charge proceeded, and the twelve-member jury found the defendant guilty as charged.

On January 22, 1998, the State amended the possession of a dangerous weapon charge to attempted possession of a dangerous weapon. The defendant pled guilty as charged to the amended charge and was sentenced to nine months in the custody of the Department of Corrections, with credit for time served.² The trial court ordered the sentence to be served concurrently with sentences for three other cases, including the possession with intent to distribute cocaine charge. On January 22, 1998, the defendant was also sentenced to serve five years for the possession of cocaine with intent to distribute charge; the sentence was to run concurrently with his other three cases. Defense counsel filed a motion to reconsider sentence and a motion for appeal.

The State filed a multiple bill charging the defendant with being a second felony offender. The State averred that the defendant had pled guilty to manslaughter on March 31, 1983 in case # 292-115. Following a hearing on March 17, 1998, the defendant was adjudicated a second felony offender. He was sentenced to serve fifteen years in prison under the provisions of La. R.S. 15:529.1. The court ordered that the sentence run concurrently with any other sentence the defendant had to serve. On January 26, 1999 counsel filed a motion for appeal, and the court granted the defendant an out of time appeal.

STATEMENT OF FACTS

On January 3, 1997, at approximately 9:00 a.m., Detective Russell Nelson ("Detective Nelson") received a telephone call from a concerned citizen reporting possible drug dealings in the 1000 block of North Robertson. The concerned citizen, who lived in the area, stated that an African-American male, wearing a black cap, black sweatshirt and black pants, and standing next to a black four-door Buick, with license plate # CDH-637, was dealing narcotics from the trunk of the vehicle.

Detective Nelson, along with his partner, Detective Arthur Powell ("Detective Powell"), traveled to the 1000 block of North Robertson Street. Immediately upon turning the corner, they observed the defendant closing the trunk of the vehicle. The defendant was wearing clothes that fit the description given over the hotline by the concerned citizen. The two detectives pulled up, identified themselves as police detectives, and informed the defendant that he was under investigation for selling narcotics. Detective Nelson then conducted a safety pat-down search and noticed a bulge in the defendant's right front pants pocket. Detective Nelson recovered ninety-three dollars in currency from the defendant. He also felt a bulge in the defendant's right rear pocket and removed a folding pocket knife with a three and a half-inch blade. Detective Nelson advised the defendant that he was under arrest for carrying a concealed weapon and further advised him of his Miranda rights. At the suppression hearing Detective Nelson testified that when asked if he had anything to say, the defendant stated, "Y'all can search my car cause (sic) I don't have any drugs or narcotics"—excuse me, "drugs or weapons in my vehicle at all." However, at trial, Officer Powell testified that Officer Nelson asked the defendant if they could search his car. Officer Powell's testimony conflicted with that of Officer Nelson. After the defendant allegedly gave permission to search his vehicle, the officers asked a second time if he was certain he wanted them to search his vehicle. He allegedly answered affirmatively, and they proceeded to search the vehicle. The officers did not obtain a written waiver of rights from the defendant. Detective Nelson stated that he did not go over a "Consent to Search Warrant" form with the defendant because he did not have any of those forms with him at the time.

While searching the defendant's vehicle, Detective Nelson discovered an envelope containing twelve hundred dollars under the floor mat. When asked to whom the money belonged, the defendant stated that it was for an attorney who was handling a case for him.

After retrieving the money, Detective Nelson opened the trunk of the vehicle. Inside the trunk, next to a fishing tackle box, Detective Nelson found two clear plastic bags containing a white powder, which the detective recognized as cocaine. Under the tackle box was a larger plastic bag containing thirty-one additional bags of powdered cocaine.

At trial, Detective Nelson admitted that he had no prior dealings with the concerned citizen who called that morning, and he had no opportunity to verify any previous information given to his office for accuracy. The caller did not give an exact address where the person selling drugs would be found; he merely described the clothing worn by the person selling narcotics in the 1000 block of North Robertson and the vehicle out of which the narcotics were being sold. Initially, Detective Nelson testified that when he and his partner drove up, the only person they saw on the street was the defendant. However, Detective Nelson later admitted that a woman was sitting on the porch where the defendant was located. Additionally, several people were also standing outside near a barroom on the corner. However, the detectives only questioned the defendant because he was the person they were looking for, i.e., he fit the description given by the caller.

ERRORS PATENT

A review of the record for errors patent reveals three.

First, the bill of information was defective insofar as count two is concerned. In State v. Ordon, 96-1710 (La.App. 4 Cir. 7/16/97), 697 So.2d 1074, writ denied, 97-2130 (La.1/9/98), 705 So.2d 1099, this court concluded that a bill of information containing the same language found in count two of the bill of information filed was defective. The bill of information in State v. Ordon, supra, charged that the defendant possessed a dangerous weapon, i.e., a knife, having been previously convicted of an enumerated felony. This Court noted that La. R.S. 14:95.1 contains two possible methods of committing the offense. If a person has been convicted of certain enumerated felonies, he violates La. R.S. 14:95.1 if he (1) possesses a firearm or (2) carries a concealed weapon. This Court noted that the bill of information charged that the defendant "possessed a dangerous weapon, to wit: a KNIFE," having been previously convicted of an enumerated felony." The bill of information made no mention of the essential element that the knife was concealed by the defendant. Accordingly, this Court concluded the bill of information was defective because it failed to charge a crime punishable by a valid statute.

Similarly, in the instant case, the bill of information dated January 3, 1997, indicates the following as to count 2 of the bill of information:

"possessed been previously convicted of a felony, namely: Manslaughter in case # 292-115 `A', Criminal District Court, Parish of Orleans".

Count 2 was amended by the Assistant District Attorney on January 22, 1998 to a violation of La. R.S. 14:(27) 95.1, Attempted Possession of Firearm or Carrying Concealed Weapon by a Person Convicted of Certain Felonies. Because the bill of information failed to aver that the knife was concealed, it is defective.

In contrast, in State v. Ordon, this court found that the defendant and his counsel were adequately apprised that he was charged with and subsequently tried for carrying a concealed weapon. Because the record clearly reflected that the defendant was convicted for carrying a concealed weapon by a convicted felon, this court found that the defective bill of information did not require reversal of the defendant's conviction.

Second, in the instant case, the record clearly demonstrates that the defendant and/or his counsel were not cognizant of the nature of the charges when he pled guilty on January 22, 1998. The trial court, in accepting the defendant's guilty plea at the hearing on January 22, 1998, erroneously stated that the defendant was charged with being a felon with a firearm in case # 389-029 and case # 386-334. Additionally, the trial court noted that the charge in case # 386-334 would be amended by the District Attorney's Office to a violation of 14:(27)95.1, "an attempt felon with a firearm".

Prior to sentencing the defendant, the trial court stated that the "maximum sentence on an attempted felon in possession of a firearm is five years in the ...