State v. Ellis, 49,078–KA.

• Decision Date: 25 June 2014
• Docket Number: No. 49,078–KA.,49,078–KA.
• Parties: STATE of Louisiana, Appellee v. Michael D. ELLIS, Appellant.
• Court: Court of Appeal of Louisiana — District of US

144 So.3d 1152

STATE of Louisiana, Appellee
v.
Michael D. ELLIS, Appellant.

No. 49,078–KA.

Court of Appeal of Louisiana,
Second Circuit.

June 25, 2014.

[144 So.3d 1155]

Louisiana Appellate Project, by Teresa Culpepper Carroll, Jonesboro, for Appellant.

Charles Rex Scott, II, District Attorney, Karelia Stewart, Jessica D. Cassidy, Janet L. Silvie, Assistant District Attorneys, for Appellee.

Before WILLIAMS, DREW and PITMAN, JJ.

DREW, J.

Michael Ellis was found guilty as charged of possession of cocaine with intent to distribute. The jury's verdict was 11–1. He later pled guilty to being a second-felony habitual offender, and was sentenced as such.

He appeals on four grounds:

1. Insufficiency of the evidence;

2. Failure to grant a mistrial relative to an opening statement comment by the prosecution; ¹

3. Involuntariness of his confession; ² and

4. Excessive sentence.³

We reviewed the record in the light most favorable to the prosecution. We find that no rational trier of fact could have found beyond a reasonable doubt that the defendant specifically intended to distribute the seized drugs.

FACTS

Law officers executed a search warrant at defendant's Shreveport residence. Only the defendant and Seidah Elzie were present.

The officers seized:

• two small rocks of suspected crack cocaine and a razor blade, found on a plate in Elzie's possession in the bathroom;

• two wads of cash, totaling $1,285; ⁴

• several small Baggies in a kitchen cabinet;

• an empty box for digital scales on the kitchen counter; and

• a piece of mail, addressed to the defendant at that location.

The Jury Trial

Lieutenant Carl Townley, with the Caddo–Shreveport narcotics unit, was accepted as an expert ⁵ and testified that:

[144 So.3d 1156]

• the box for digital scales found in the residence was for a type of scale commonly used to weigh illegal substances such as narcotics;

• the presence of the box for scales was inconsistent with personal use;

• he had never heard of a crack user weighing drugs bought for personal use;

• persons who purchase drugs wholesale for later distribution do weigh the drugs to verify the amount bought and amount to be resold;

• the small Baggies seized from the kitchen are called “dime Baggies” and are used to package small amounts of drugs for individual sale;

• the two rocks were worth about $5–$10 each;

• the plate with the drugs and a razor indicated that the rocks had been cut from a larger piece of cocaine and were not yet packaged for sale;

• the way that this crack was cut indicated that the drugs were for sale;

• the cash was in small denominations and “wadded up,” which is consistent with having been in someone's pocket, which he said also suggested that the money represented proceeds from drug sales; and

• the evidence was consistent with possession with intent to distribute.

Keith Knox, the case agent, testified that:

• as soon as the house was secured, the suspects were handcuffed and separated for questioning, while other officers conducted their search;

• he explained the Miranda⁶ rights to the defendant, who seemed to understand and who voluntarily waived the rights;

• only one other officer ⁷ was present to hear the statement;

• the defendant admitted selling crack cocaine in small amounts;

• the defendant said he was unemployed but not for how long;

• the statement was not recorded and the officer made no notes;

• an empty box for digital scales was found on the kitchen counter;

• a box of small plastic Baggies was found in a kitchen cabinet;

• he had made thousands of arrests in 15 years as a law officer; and

• an envelope was found, addressed to the defendant at that house.

Officer John Witham testified that:

• Elzie was trying to flush two rocks and a razor blade in the toilet;

• she said the defendant told her to do it;

• chemists later identified the substance as 0.2 gram of crack cocaine;

• no digital scales were ever located; and

• no drugs were found that were already packaged for resale.

Seidah Elzie testified that:

• she was 22 and had a sexual relationship with Ellis, who was 47;

• she did not live with him but stayed at his house several days a week;

• she had been at the house since the night before;

• she was playing a video game when she saw the officers arrive;

• the defendant told her to dump the drugs into the toilet;

• only the razor blade fell in, just as the officers burst in the bathroom; and

[144 So.3d 1157]

• the crack cocaine belonged to the defendant.⁸

The defendant asserted his Fifth Amendment right not to testify.

In closing, the state argued that the defendant:

• was found in his home with cocaine, which he told Elzie to destroy;

• admitted he sold cocaine to support himself; and

• the razor blade, box for scales, Baggies, and wads of cash indicated that the defendant was in the business of selling drugs.

The defense responded that:

• the evidence was insufficient to establish that he was in actual or constructive possession of the drugs;

• the evidence showed that it was Elzie who possessed the drugs, as she admitted when she pled guilty to possession of the cocaine;

• the defendant's mere presence in the house did not establish possession; and

• there was no proof of the intent to distribute, as there were no scales, no drugs packaged for resale, and only a tiny amount of drugs seized.

After the jury found him guilty, the defendant filed a motion for post-judgment verdict of acquittal and/or new trial, which was denied.

The defendant pled guilty as a second felony offender, with an agreed sentencing cap of 25 years. He confirmed a prior conviction of possession of marijuana, third offense, and acknowledged that he could appeal his conviction but not his sentence. The court accepted the plea and sentenced the defendant to 22 years at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence, all to be served concurrently with any other sentence.

DISCUSSION I. Sufficiency

Our law on appellate assessment of sufficiency questions is clear.⁹

[144 So.3d 1158]

Our jurisprudence provides guidance in assessing these prosecutions.¹⁰

[144 So.3d 1159]

Even though the defendant admitted being a small-time drug dealer, and even though no crack pipe was found, we note that only two tiny rocks of crack cocaine were seized from his home, totaling 0.2 gram of cocaine. He never admitted intending to distribute these small, unpackaged rocks.

In State v. Butler, 1999–1794 (La.5/1/00), 760 So.2d 322, the defendant possessed only 0.07 gram of crack cocaine. The defendant admitted that two rocks of cocaine had spilled out of his pocket during his arrest. He also admitted selling drugs but claimed that the “leftover s* *t” was not intended for sale. The state also presented confirmed incriminating information from a confidential informant. These facts were held sufficient to support a verdict of guilty of possession with intent to distribute.¹¹

In State v. Gordon, 93–1923 (La.App. 1st Cir.11/10/94), 646 So.2d 1005, the court upheld a conviction for possession with intent to distribute, based on only one gram (worth $80–$100) found in a film canister, and 0.10 gram (worth $20) of cocaine being found in a Baggie. The court held that the fact finder could have inferred Gordon's intent to distribute from direct and circumstantial evidence.¹²

In State v. Watson, 47,980 (La.App.2d Cir.5/15/13), 135 So.3d 693, writs denied,2013–1676 (La.2/7/14), 131 So.3d 856, and 2013–1788 (La.2/7/14), 131 So.3d 862, we found ample evidence of the intent to distribute cocaine, predicated upon somewhat

[144 So.3d 1160]

stronger facts.¹³

Here, only the defendant and Elzie were home when the warrant was served. Elzie—not this defendant—was found in physical possession of the rocks, as she was trying to flush this tiny amount of drugs, valued at a combined total of $10 to $20.¹⁴ The drugs were not packaged for distribution. The jury heard nothing about controlled buys or confidential informants. No scales were found, just a box that had contained scales.

There is no question that this defendant is an admitted drug dealer. We find, however, that this record does not contain enough evidence for a reasonable jury to conclude beyond a reasonable doubt that he possessed these rocks with the specific intent to distribute. It is quite possible that the drugs belonged to Elzie or were for personal usage.

This record does allow, however, a just verdict that the defendant constructively possessed the drugs, along with Elzie. We hereby vacate the verdict rendered by the jury, and replace it with a verdict of guilty of possession of cocaine, and remand for sentencing.

II. The Defendant's Statement

The defendant argues in brief that:

• he was under duress when he incriminated himself while handcuffed;

• he had 16 to 20 armed law officers in his home at the time;

• the officer incorrectly explained his rights under Miranda;

• the officer did not obtain a signed waiver of rights and took no notes;

• the officer's report was not made until the next day; and

• the statement was not freely and voluntarily made.

The state responds that the statement was free and voluntary.¹⁵

Our law relative to assessing inculpatory statements is well settled.¹⁶

[144 So.3d 1161]

The trial court found the testimony of involved officers to be credible. The defendant presented no contrary evidence, only argument of counsel. Indeed, no motion to suppress the statement was even filed.

We do not detect any duress or threats and we find that the trial court was correct in ruling that the defendant made a free and voluntary statement after understanding and waiving his rights per Miranda.

III. Denial of Mistrial

The defendant argues that:

• the prosecution's reference to the statement in opening arguments was prejudicial to the defendant under La. C. Cr. P. art. 767; and

• the prosecutor misquoted his statement by incorrectly adding that he not only admitted selling cocaine, but also admitted selling it at home.

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