State v. Dukes

• Decision Date: 02 December 1992
• Docket Number: Nos. 24287-K,24288-KA and 24289-KA,s. 24287-K
• Citation: 609 So.2d 1144
• Parties: STATE of Louisiana, Appellee v. Kenneth B. DUKES, Jr., Appellant. STATE of Louisiana, Appellee, v. Milton Lee SHUBBIE, Appellant. STATE of Louisiana, Appellee, v. Joseph REED, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1144

609 So.2d 1144

STATE of Louisiana, Appellee v. Kenneth B. DUKES, Jr., Appellant.

STATE of Louisiana, Appellee, v. Milton Lee SHUBBIE, Appellant.

STATE of Louisiana, Appellee, v. Joseph REED, Appellant.

Nos. 24287-KA, 24288-KA and 24289-KA.

Court of Appeal of Louisiana,

Second Circuit.

Dec. 2, 1992.

Rehearing Denied Jan. 14, 1993.

Aylmer M. Wyche, III, Bossier City, for Milton Lee Shubbie.

Michael G. Latimer, Bossier City, for Kenneth Bruce Dukes, Jr.

A.M. Stroud, III, Shreveport, for Joseph Reed.

Richard Ieyoub, Atty. Gen., Baton Rouge, James M. Bullers, Dist. Atty., Whitley R. Graves, Asst. Dist. Atty., Benton, for State.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

SEXTON, Judge.

Anthony Merriman, Milton Shubbie, Kenneth Dukes, and Joseph Reed were charged by bill of information with the crime of manufacturing methamphetamine, a violation of LSA-R.S. 40:967(A). Following a 13-day trial, the jury found the defendants guilty of attempted manufacture of methamphetamine, a violation of LSA-R.S. 40:967(A) and LSA-R.S. 40:979. For these convictions, Milton Shubbie was sentenced to serve seven and one-half years at hard labor, Kenneth Dukes was sentenced to serve three years at hard labor, and Joseph Reed was sentenced to serve nine years at hard labor. Defendants Shubbie, Dukes, and Reed now appeal their convictions and sentences raising several assignments of error. ¹ We affirm the convictions and sentences of Milton Shubbie and Kenneth Dukes and reverse and vacate the conviction and sentence of Joseph Reed.

FACTS

During the last week of January 1990, Sammy McClinton saw Kenneth Dukes, Milton Shubbie, and Anthony Merriman at the Rainbow Horse Farm in Bossier Parish. McClinton, who was the manager of the farm, knew the men did not have permission to be there and he asked them to leave. Instead of departing the area, the men turned on the electricity in one of the horse barns and ran a water hose into it. McClinton saw Shubbie and Dukes at the barn again early on the morning of January 27, 1990.

On Saturday, January 27, 1990, a confidential informant, who had previously provided trustworthy information, notified Bossier Parish Sheriff Deputy Charles Rosalie that a clandestine methamphetamine lab was located at the Rainbow Horse Farm. Deputy Rosalie passed on that information to narcotics investigators, Deputy Ricky Bridges and Deputy Ernie Plunkett. The confidential informant and Deputies Bridges and Plunkett met each other and then drove out to the Rainbow Horse Farm around 8:15 p.m. The confidential informant pointed out tack room number 3 as the location of the clandestine laboratory. The confidential informant described the equipment he had seen within the tack room and the distinctive odor associated with a methamphetamine lab. The deputies saw a Hyundai automobile with Texas license plates in front of the barn. However, no one else was around, so the deputies left the area and dropped off the confidential informant.

Deputies Bridges and Plunkett then returned to Rainbow Horse Farm where they set up surveillance. During this surveillance, both deputies noticed a distinctive odor coming from the tack room. Only five minutes later, the deputies observed at least four individuals loading boxes and other articles into the Hyundai vehicle. Four individuals then got into the car and left the scene.

Deputies Bridges and Plunkett began to follow the vehicle. The deputies then contacted Deputy Warner Barteet, who was in a marked sheriff's car, to assist them in stopping the vehicle. The Hyundai vehicle was eventually stopped at the McDonald's restaurant on Highway 80 by Deputy Barteet. Deputies Bridges and Plunkett arrived at the scene moments later. After the vehicle was stopped, Deputies Bridges and Plunkett ordered all four occupants to exit the vehicle. At that time, the deputies noticed the odor of methamphetamine emanating from the vehicle and also observed syringes in the vehicle in plain view. Anthony Merriman, Kenneth Dukes, Douglas Sepulvado, and Milton Shubbie were the occupants of the vehicle, and they were all subsequently arrested. The deputies also conducted a search of the trunk of the vehicle where they found two cans of acetone, glassware, a set of scales, and three glass jars which contained suspected methamphetamine oil. An analysis of this oil conducted by the North Louisiana Crime Lab in Shreveport revealed trace amounts of methamphetamine in one of the glass jars.

After the arrest, Deputy Bridges prepared an affidavit and a search warrant was issued to search tack room number 3 at the Rainbow Horse Farm. Deputies Don Rittenberry and Tommy McWilliams had been sent to secure the tack room until the search warrant was issued. Once they had the search warrant, the deputies proceeded to search the tack room where they found a heating mantle, a 12,000 milliliter flask, and a reflux condenser tube, which contained a liquid that was boiling. Mr. Jimmy Barnhill of the North Louisiana Crime Lab was called in and he helped shut down the operation at the tack room.

Deputies Bridges and Plunkett also took a statement from Anthony Merriman after he had been arrested. Merriman indicated that Amos Brown had given him $2000 in cash to finance the lab. Merriman gave this money to another individual, and they then went to a location in south Shreveport where they picked up the chemicals and glassware for the lab.

While still investigating who was involved with the methamphetamine lab, the deputies obtained fingerprints from several items found in the Hyundai vehicle and the tack room. The deputies received information from the Bureau of Identification Division of the State Police that two fingerprints matched the fingerprints of Joseph Reed. One of Reed's fingerprints had been taken from an acetone can found in the back of the vehicle and another fingerprint had come from a mason jar which was found in the tack room. An arrest warrant was issued and Joseph Reed was subsequently arrested as a principal in the manufacturing of methamphetamine.

SUFFICIENCY OF THE EVIDENCE

On appeal, Joseph Reed contends the evidence presented at trial is insufficient to sustain his conviction for attempted manufacture of methamphetamine. Reed asserts that a review of the evidence presented at trial shows that his fingerprints were found on two items which were not in and of themselves inculpatory. Reed contends there was no other evidence presented against him at trial. Each of the experts who testified stated there was no way of telling how long a fingerprint could be maintained on an item, nor was there any way to tell when the print had been placed there. Reed also contends there is no evidence that he was ever present at the tack room or that he supplied the equipment for the lab. Therefore, Reed contends the circumstantial evidence presented at trial does not exclude every reasonable hypothesis of his innocence and his conviction should be reversed.

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984). The rule as to circumstantial evidence is that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438. However, this statutory rule for circumstantial evidence does not provide a separate test from the Jackson v. Virginia sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La.1984); State v. Eason, 460 So.2d 1139 (La.App. 2d Cir.1984), writ denied, 463 So.2d 1317 (La.1985). Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror's reasonable doubt formula, it emphasizes the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Chism, 436 So.2d 464 (La.1983). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson v. Virginia to satisfy a rational jury that the defendant is guilty beyond a reasonable doubt. State v. Wright, supra; State v. Eason, supra.

Pursuant to LSA-R.S. 14:27 and LSA-R.S. 40:967, in order to sustain a conviction for attempted manufacture of methamphetamine, the state must show that the defendant had a specific intent to manufacture methamphetamine and did or omitted an act for the purpose of and tending directly toward the accomplishing of his object.

Further, the jury in the instant case had to determine that Joseph Reed was a principal in the commission of the offense. A principal is defined in LSA-R.S. 14:24 as follows:

All persons concerned in the commission of a crime, whether present or absent and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

In the instant case, the only evidence presented by the state against Joseph Reed was one fingerprint found on an acetone can that was in the back of the Hyundai and one fingerprint found on a mason jar that was in the tack room. This evidence, standing alone, is insufficient under the Jackson v. Virginia standard of review to sustain Reed's conviction for attempted manufacture of methamphetamine.

In State v. Pryor, 306 So.2d 675 (La.1975), the defendant's fingerprints were found on a filing cabinet from which some watches and money had been stolen. In quoting from Moenssens, Fingerprints and the Law 118-25 (1969) (Inbau Law Enforcement...