State v. Gilbert
| Docket Number | 23-KA-121 |
| Decision Date | 08 November 2023 |
| Parties | STATE OF LOUISIANA v. ONEIL GILBERT, III |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 22-1212, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
ONEIL GILBERT, III
Panel composed of Judges Robert A. Chaisson, John J. Molaison, Jr., and Scott U.Schlegel
Defendant, Oneil Gilbert, III, appeals his convictions and sentences for one count of possession of a firearm by a convicted felon, and one count of possession of cocaine in an amount under two grams. We affirm defendant's convictions and sentences. However, we remand the matter for correction of errors patent.
On March 22, 2022, the Jefferson Parish District Attorney filed a bill of information charging defendant, Oneil Gilbert, III, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one), and possession with intent to distribute a controlled dangerous substance, cocaine weighing less than 28 grams, in violation of La. R.S. 40:967(A) (count two). Defendant was arraigned and pled not guilty on March 25, 2022. Various pleadings were filed, including an omnibus motion containing motions to suppress statement and evidence. Following a hearing on July 13, 2023, the trial court denied the motions to suppress the evidence and statement.
On October 19, 2022, the State amended count two of the bill of information to charge defendant with possession of a controlled dangerous substance, cocaine weighing less than 2 grams, in violation of La. R.S. 40:967(C). During a jury trial held the same day, a twelve-person jury unanimously found defendant guilty as charged on both counts.
On October 24, 2022, defendant was sentenced to 20 years on count one, and 2 years on count two.[1] The sentences were ordered to run concurrent with each other.
The State subsequently filed a multiple offender bill of information on November 10, 2022, as to count one (possession of a firearm by a convicted felon), and alleged that defendant previously pled guilty to obscenity in Case No. 20-2252 in violation of La. R.S. 14:106 on October 13, 2021, and pled guilty to simple burglary in Case No. 10-2480 in violation of La. R.S. 14:62 on January 17, 2012. An amended multiple offender's bill was also filed on November 10, 2022, in which the State alleged that defendant had pled guilty to obscenity in Case No. 202253 in violation of La. R.S. 14:106 on October 13, 2021. The charge of simple burglary under Case No. 10-2480 was removed from the multiple bill.
At the multiple offender bill hearing on January 20, 2023, the trial court adjudicated defendant as a second-felony offender on count one, vacated the original sentence on count one, and sentenced defendant to "40 years" to run "concurrent with the other crimes".[2]
Defendant now appeals and asserts, as his sole assignment of error, that the trial court erred in denying the motions to suppress evidence and statement.
On March 6, 2022, Deputy Michael Morrison, a Jefferson Parish Sheriff's Office deputy of almost seventeen years with nearly twenty years of military experience, responded to a dispatch by the 911 operator, who had received a suspicious person call. The caller relayed via 911 that he had seen a black male break off a piece of crack cocaine, put it in a baggy, and sell it to somebody near a Honda truck (Ridgeline) in the Fast Stop store parking lot at 3220 Jefferson Highway. The initial report was made by someone named "Brian," but "Brian" was never located or interviewed. Deputy Morrison was not initially given a description, but when he asked the dispatcher for a better description, he was told that it was a bald, black man wearing black pants and a black shirt.
When Deputy Morrison arrived on the scene, he did not see anyone matching the description, but was able to speak with someone in the parking lot about who owned the truck. The person was not able to provide Deputy Morrison with a name but stated that the owner of the subject truck was a bald, black male wearing a blue shirt and black pants. Deputy Morrison also spoke with a clerk inside the store, who stated that the Honda pick-up truck belonged to a bald, black male wearing black pants and a blue shirt.[3] The clerk further noted that the person driving the subject truck told him that he would be right back because he had lost his key and was going back to his house to get a spare. The clerk last saw this person walking southbound on Shrewsbury Court.
As Deputy Morrison was speaking with the clerk, Deputy Justin McCubbins, arrived on the scene to assist with the investigation.[4] Deputy Morrison provided Deputy McCubbins with a description of the subject soon thereafter, whereupon Deputy McCubbins relayed that he had just seen a black male who matched the description exiting the corner of the parking lot, heading southbound, down Shrewsbury Court on foot. More specifically, Deputy McCubbins testified that as he walked out of the store, he saw defendant walking towards them but the defendant turned around and started walking extremely fast in the opposite direction when he saw the deputies. As a result, Deputy Morrison pursued on foot while Deputy McCubbins entered his unit and drove southbound.
Deputy McCubbins drove past defendant, pulled in front of him on Shrewsbury Court and exited his vehicle as Deputy Morrison was still walking down the road towards them. Deputy McCubbins instructed defendant to stop and drop the two yellow bags that he was carrying. Defendant refused, so Deputy McCubbins grabbed the yellow bags and placed them on the ground. When he grabbed the bags, he could immediately tell by the weight that one of the bags was heavier than the other. In his experience this suggested that the bag contained a firearm. Deputy McCubbins advised defendant of his Miranda rights as Deputy Morrison approached. Defendant was then brought over to the vehicle to be handcuffed and searched for officer safety, at which point he began to resist. The deputies were able to gain control and get handcuffs on defendant. Defendant was then brought to the other side of the car and patted down by Deputy McCubbins, who felt what he believed to be narcotics packaging in defendant's right pocket.
At this point, Deputy Morrison took over the pat-down and felt a slightly oblong object consistent with a marijuana bud in defendant's right, front, pants pocket. He pulled the zipper down and observed what he believed to be drugs on top, all while smelling a strong odor of marijuana. During the subsequent search, the deputies located a large white bag containing marijuana, a smaller bag that contained crack cocaine, and some wadded up money in multiple denominations. These items were removed and placed in Deputy McCubbins's unit. Deputy Morrison also found several bullets and a crack pipe in defendant's front, left, jean jacket pocket, which he put on top of the unit by the windshield. At this point, Deputy Morrison became concerned about continuing the search on the street because it was nighttime and dark, so they all relocated to the store parking lot. Unfortunately, the bullets and crack pipe were lost as they were forgotten about and left on the hood during the drive back. Deputy Morrison escorted defendant back to the store parking lot on foot.
When they arrived back at the parking lot, Deputy Morrison again advised defendant of his Miranda rights by memory and told him that there had been a report of him selling crack cocaine and that someone had observed him break off a piece of crack, put it in a bag, and sell it. Defendant eventually admitted to such when speaking with Detective Colton O'Connor, who had been summoned to the scene by Deputy Morrison. After being advised of his Miranda rights again by Detective O'Connor, defendant admitted that he had sold a little bit of cocaine to a friend of his. Detective O'Connor did not testify at the trial.
Sometime after arriving back at the store, Deputy Morrison searched the two yellow bags and found a Taurus revolver with five rounds of .38 caliber ammunition inside the revolver. The deputies also searched defendant's truck after receiving his consent to do so. They did not locate additional weapons or narcotics, but found suitcases in the back of the truck that contained clear, plastic baggies.
Upon running defendant's rap sheet, Deputy Morrison learned that defendant was on probation or parole and that he had a history of armed robbery and rape offenses. Defendant was arrested for (1) possession with intent to distribute crack cocaine under La. R.S. 40:967A, (2) possession of a firearm with controlled dangerous substance under La. R.S.14:95E, (3) felon in possession of a firearm under La. R.S. 14:95.1, and (4) possession of marijuana under La. R.S. 40:966C.
As a preliminary matter, we acknowledge that defendant's motion for appeal is in part untimely filed. Defendant was originally sentenced on October 24, 2022. He was resentenced on the multiple bill on January 20, 2023. His motion for appeal, filed on January 27, 2023, includes an appeal from the verdict rendered on October 24, 2022. Thus, the appeal was not filed within 30 days of the October 19, 2022 verdict in...
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