State v. Hall

• Decision Date: 19 March 2003
• Docket Number: No. 2002-KA-1098.,2002-KA-1098.
• Citation: 843 So.2d 488
• Parties: STATE of Louisiana v. Kenneth HALL.
• Court: Court of Appeal of Louisiana — District of US

843 So.2d 488

STATE of Louisiana v. Kenneth HALL.

No. 2002-KA-1098.

Court of Appeal of Louisiana, Fourth Circuit.

March 19, 2003.

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Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.

Arcenious F. Armond, Jr., Gretna, LA, for Kenneth Hall.

(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge DAVID S. GORBATY).

CHARLES R. JONES, Judge.

Kenneth Hall appeals his convictions for distribution of heroin within one thousand feet of a schoolyard, and possession of more than twenty eight grams but less than two hundred grams of cocaine. On the former conviction, he was sentenced to life imprisonment. On the latter conviction, he was sentenced to ten years imprisonment without benefits. This appeal follows.

Procedural History

Hall was indicted by the grand jury for possession with intent to distribute heroin within one thousand feet of a schoolyard, in violation of La. R.S. 40:981.3, and possession of more than twenty-eight grams but less than two hundred grams of cocaine in violation of La. R.S. 40:967.¹ After the district court denied his motion to suppress evidence and he elected a bench trial, the court rendered its verdict finding Hall guilty as charged on both counts The district court denied Hall's motion for new trial and motion for post judgment verdict of acquittal, and imposed sentence. Hall was sentenced to life imprisonment at hard labor without the benefit of probation or suspension of sentence on the heroin charge, and to ten years at hard labor without benefit of probation, parole, or suspension of sentence on the cocaine charge. Hall orally objected to the sentence and moved for an appeal. A written motion for appeal was filed.

Facts

On November 11, 1996, Officer Sanford Johnson was conducting surveillance in the area of 2100 Whitney Avenue. The officer was undercover, observing narcotics trafficking in the Fischer Housing Development. Officer Johnson testified that he observed numerous hand to hand transactions that day. He testified that he observed Kenneth Hall walk up to where the traffickers were standing. Hall spoke with a few of the subjects and then walked into an apartment. Hall later called a few of the subjects located outside the apartment to come inside. The subjects went into the apartment and exited a short time later. The officer also observed an elderly man approach the group. The man told the subjects that they were ruining the neighborhood. Approximately thirty minutes later, Hall left the area. During the surveillance, the officer observed Hall engage in hand-to hand transactions with persons in vehicles who would stop at the intersection.

Officer Johnson testified that a second surveillance was conducted on November 13, 1996. On that day, the officer observed Euric Vincent and Terrell Jones looking up and down the street as if they were waiting for someone. Approximately forty-five minutes later, a white vehicle drove up. Hall exited the vehicle and approached Vincent and Jones. Hall gave Vincent a brown paper bag and then left the area. Vincent and Jones took some items out of the bag and put the objects in their pockets. They placed the bag in a support pipe in the building at 2100 Whitney Avenue. The officer then observed Vincent and Jones engage in narcotics transactions. After a few hours, a vehicle approached Vincent and Jones. The officer heard Vincent say "I'm about to go get that man, because ain't nobody going to be selling no drugs here but us." After leaving the area on foot, Vincent returned in a vehicle. When he exited the vehicle, the officer saw that Vincent had a gun in his hand. Vincent then placed the gun in the trunk. Once he returned to where Jones was standing, he continued the hand to hand transactions. When the trafficking stopped, and the officer realized that Hall would not be returning, the officer ended surveillance for the day. Officer Johnson called for a takedown unit to surround the area.

Officer William Marks, who assisted with the surveillance on November 11, 1996, testified and corroborated the testimony of Officer Johnson.

Officer Marcel Foxworth testified that he assisted in the surveillance of the 2100 block of Whitney Avenue on November 13, 1996. The Officer also corroborated the testimony of Officer Johnson. Officer Foxworth further testified that after observing the transactions of the subjects, the officers believed the situation to be dangerous when Vincent left the area and returned with a gun. The officers decided to arrest Vincent and Jones, and radioed for assistance. Officer Foxworth testified that he retrieved the paper bag from the support pipe and found thirty-eight packets of heroin in the bag. A handgun with thirteen rounds and a glass tube with white residue were found in Vincent's vehicle. Two hundred ten dollars were found on Vincent.

Officer Marks further testified that he assisted in the surveillance of Hall on the afternoon of November 15, 1996. He testified that he followed a van being driven by Dorothy Hartford into the Trace Apartment Complex, where she got out of the driver's side of the vehicle and Hall exited from the rear. Hall and Hartford walked to an upstairs apartment, and then left with another woman, Erica Ware. Hall carried a bag from the apartment and all three drove off in the van. Sergeant Joel Poretto testified that he conducted an investigative stop of the van on General De Gaulle, believing that Hall was returning to the Fischer Housing Development with more narcotics.

Officer Marks further testified that he was parked at the intersection of De Gaulle and Whitney while the stop by Sergeant Poretto was being conducted. Officer Marks testified that he heard Sergeant Poretto request assistance over the radio and saw the blue van going down General De Gaulle at a high rate of speed. The van turned onto Whitney and drove across a driveway into a grassy area where children were playing. Officer Marks pursued the vehicle and saw it stop. Dorothy Hartford jumped out of the vehicle with a bag and started to run. After being ordered to stop by the officer, Hartford complied and was placed under arrest. The officer advised Hartford of her rights, which she indicated that she understood. At that time, the officer asked Hartford about the bag. Hartford stated that the bag contained drugs and money, which she claimed belonged to Hall. The officer opened the bag and found one hundred and seventeen grams of cocaine and eighty-three hundred dollars in cash in the bag. When Hall exited the van, Sergeant Poretto testified that he observed a bag of marijuana on the floor of the vehicle. Hall was then placed under arrest.

Errors Patent

A review of the record reveals errors in the sentences imposed by the district court on Hall for his conviction for possession with the intent to distribute heroin within one thousand feet of a schoolyard. The district court sentenced Hall to life imprisonment at hard labor without benefit of probation or suspension of sentence. However, La. R.S. 40:966 and La. R.S. 40:981.3 also provide that the sentence is to be served without the benefit of parole, and requires the imposition of a fine of $50,000. La. R.S. 40:967, which provides for possession of more than twenty-eight grams, but less than two hundred grams of cocaine also mandates the imposition of a fine between $50,000 and $150,000. The district court failed to impose fines in conjunction with both sentences. Therefore, the sentences are illegally lenient. Heretofore, this Court has followed the dictates of State v. Fraser, 484 So.2d 122 (La.1986), which held that a sentencing error favorable to the defendant that is not raised by the State on appeal may not be corrected. However, the legislature recently enacted La. R.S. 15:301.1², which addresses those instances wherein sentences contain statutory restrictions on parole, probation or suspension of sentence. Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. Moreover, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Supreme Court found that paragraph A self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the district court's failure to specify that Hall's sentence be served without benefit of parole, and the imposition of the mandatory fine of $50,000. The correction is statutorily effected.³ La. R.S. 15:301.1A.

However, as La. R.S. 40:967 provides a range of fines to be imposed, the matter must be remanded for the imposition of the fine on the cocaine charge.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Hall contends that the district court erred by denying him the right to equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution through the systematic exclusion of African—Americans from serving as grand jury forepersons. However, such an argument must first be presented in a motion to quash the indictment on that basis, or it is waived. State v. Woodberry, 2002-0994 (La.App. 4 Cir. 6/5/02), 820 So.2d 638; State v. Juarbe, 2001-2250 (La.App. 4 Cir. 7/31/02), 824 So.2d 1240. Hall did not file a motion to quash and is, therefore, precluded from raising this issue on appeal. Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349; State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Hall further argues that his counsel was ineffective for failing...