State v. Cosey

• Decision Date: 01 February 2012
• Docket Number: 11-774
• Parties: STATE OF LOUISIANA v. ERIC DARELL COSEY AKA HENRY CARTER AKA KENDRICK CARTER
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA

v.ERIC DARELL COSEY AKA HENRY CARTER AKA KENDRICK CARTER

11-774

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Dated: February 1, 2012

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES, NO. 297,595

HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

BILLY HOWARD EZELL

JUDGE

Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese, Judges.

FOURTH FELONY OFFENDER CONVICTION AND SENTENCE

VACATED AND SET ASIDE AND THIRD FELONY OFFENDER

CONVICTION AND SENTENCE REINSTATED.

James C. Downs

COUNSEL FOR APPELLEE:

State of Louisiana

G. Paul Marx

Attorney at Law

COUNSEL FOR DEFENDANT/APPELLANT:

Eric Darell Cosey

Beth Smith Fontenot

Louisiana Appellate Project

COUNSEL FOR DEFENDANT/APPELLANT:

Eric Darell Cosey

Brian Davis Mosley

Assistant District Attorney

COUNSEL FOR APPELLEE:

State of Louisiana

Eric Darell Cosey

Richwood Correctional Center

Pro Se

Ezell, Judge.

On September 18, 2009, the Defendant, Eric Darrell Cosey, a/k/a Henry Carter, a/k/a Kendrick Carter, was charged by bill of information, in count one with possession of cocaine, a violation of La.R.S. 40:967(C), and in count two with obstruction of justice, a violation of La.R.S. 14:130.1. Following a jury trial, the Defendant was found guilty as charged on March 17, 2010. The Defendant was sentenced on March 24, 2010, to serve five years at hard labor for each offense with the sentences to run consecutively. The trial court also recommended that he serve the last year of his sentence in a substance abuse program.

Following sentencing, the State charged the Defendant as a fourth felony offender. On May 3, 2010, the Defendant pled guilty to being a third felony offender in exchange for his agreement not to seek an appeal, post-conviction relief, or request any documents in anticipation of seeking same. In breach of the agreement, the State would proceed with the fourth felony offender charge. The Defendant's sentences were then vacated, and he was sentenced to ten years at hard labor for each offense, to run concurrently with each other. The Defendant subsequently withdrew his prior motion for an appeal.

On January 10, 2011, the Defendant filed a motion for an out-of-time appeal which was granted that same day. The State motioned the trial court to refix the hearing on the Defendant's habitual offender bill charging him as a fourth felony offender. At a hearing held on February 28, 2011, the trial court found the Defendant had violated his plea agreement and concluded he was a fourth felony offender. The Defendant was then sentenced to serve twenty years at hard labor for each offense, to be served without benefit of probation, parole, or suspension of sentence.¹ The Defendant did not file a motion to reconsider his sentences.

The Defendant is now before this court on appeal, arguing that his convictions violate double jeopardy and that the trial court erred in finding he had violated his plea agreement. We vacate and set aside the Defendant's adjudication as a fourth felony offender and sentence and reinstate his adjudication as a third felony offender and sentence.

FACTS

On December 18, 2009, officers observed a vehicle hesitate as it approached a DWI checkpoint. When the vehicle reached the checkpoint, the Defendant, a passenger in the vehicle, was seen holding a baggie suspected to contain cocaine. When instructed to open his hand, the Defendant refused and then put a substance he was holding in his hand into his mouth. The Defendant refused to spit out the substance. The Defendant was taken into custody, but the substance was not recovered. A white powdery substance was observed on his mouth. Officers subsequently searched the vehicle, and crack cocaine was recovered.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there are several errors patent raised and addressed in Assignment of Error Number Three.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that his convictions for possession of cocaine and obstruction of justice violate double jeopardy. The Defendant asserts that the State relied on the same evidence to convict him of both offenses.

When reviewing a claim of double jeopardy, two tests are used in Louisiana courts to determine whether double jeopardy exists—the Blockburger test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932) and the "same evidence test." State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d434, writ denied, 10-1146 (La. 5/20/11), 63 So.3d 972. The Defendant concedes on appeal that the Blockburger test is not applicable to his case; thus, the instant case is analyzed herein using only the same evidence test.

The supreme court explained in State v. Steele, 387 So.2d 1175, 1177 (La.1980) (citation omitted):

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

See also State v. Cotton, 00-850, (La. 1/29/01), 778 So.2d 569, rehearing granted in part on other grounds, 00-850 (La. 4/20/01), 787 So.2d 278.

The Defendant was convicted of possession of cocaine, a violation of La.R.S. 40:497. Accordingly, the State had to show that the Defendant knowing and intentionally possessed cocaine. "Possession of narcotic drugs can be established by actual physical possession or by constructive possession. State v. Trahan, 425 So.2d 1222, 1226 (La.1983)." State v. Major, 03-3522, p. 7 (La. 12/1/04), 888 So.2d 798, 802. The supreme court in State v. Toups, 01-1875, pp. 3-4 (La. 10/15/02), 833 So.2d 910, 913, summarized the law on constructive possession as follows:

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. . . . Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. . . .

State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).

A determination of whether there is "possession" sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: "evidence that the area was frequented by drug users").

See also State v. Jacobs, 08-1068, (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931.

The Defendant was also charged with obstruction of justice as provided in La.R.S. 14:130.1(A)(1), which reads:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:

(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:

(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or

(b) At the location of storage, transfer, or place of review of any such evidence.

At trial, several officers with the Pineville Police Department testified about their involvement with the instant offense that occurred around 1:00 a.m. on June 20, 2009. Officer Timothy Robinson testified that a car approaching the checkpoint caught his attention when it stopped at the foot of a nearby bridge. With his flashlight, Officer Robinson motioned the vehicle to come forward. The vehicle moved forward and stopped again, and then once more, it moved forwardand stopped. According to Officer Robinson, there was nothing impeding the vehicle from approaching the checkpoint. Officer Robinson motioned the vehicle to come forward again, and Officer Vincent Petito was eventually able to make contact with the driver of the vehicle. Officer Robinson then made his way to the passenger side of the vehicle where Officer Cody Griffith was making contact with the passenger, the Defendant herein.

Officer Robinson illuminated the inside of the car with his flashlight and observed a baggie in the Defendant's hand. He asked the Defendant numerous times to open his hand, but the Defendant refused and clenched his hand shut. Officer Robinson observed the Defendant put a substance from his hand into his mouth, chew it, and swallow it. Officer Robinson suspected the substance was crack cocaine. The...