State v. Harris
| Decision Date | 11 December 2013 |
| Docket Number | No. 13–133.,13–133. |
| Citation | 156 So.3d 694 |
| Parties | STATE of Louisiana v. Derrick L. HARRIS. |
| Court | Court of Appeal of Louisiana — District of US |
Michael Harson, District Attorney, Lafayette, LA, F. Stanton Hardee, III, Assistant District Attorney, Abbeville, LA, for Appellee State of Louisiana.
Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Derrick L. Harris.
Derrick L. Harris, Hickory–1 Louisiana State Prison, Angola, LA, In Proper Person.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
Following a bench trial, the defendant was convicted as charged of distribution of marijuana. The trial court imposed a fifteen-year sentence to be served at hard labor. Thereafter, and pursuant to a bill of information filed by the State, the trial court adjudicated the defendant a fourth felony offender, vacated the fifteen-year sentence, and imposed the mandatory life sentence set forth in La.R.S. 15:529.1. Pursuant to the statute, the trial court imposed the sentence without benefit of parole, probation, or suspension of sentence. The defendant appeals. For the following reasons, we affirm.
The State alleged that an undercover sheriff's deputy working with the Vermilion Parish Sheriff's Office located an individual on a street in Abbeville, inquired where he could purchase marijuana, and was taken to a residence. The deputy testified that a subject he identified as the defendant, Derrick L. Harris, walked from the residence and sold him marijuana for $30.
Based on that transaction, the State charged the defendant with distribution of marijuana, a violation of La.R.S. 40:966(A)(1). After the matter proceeded to a bench trial, the defendant was convicted as charged. At sentencing, the trial court sentenced the defendant to fifteen years at hard labor, a mid-range sentence for the conviction of distribution of marijuana.1 The trial court subsequently denied the defendant's motion to reconsider the sentence.
Following the defendant's conviction, the State filed a bill of information, along with amendments, listing a total of six felonies, including the conviction for distribution of marijuana. Following a hearing, the trial court adjudicated the defendant a fourth felony offender. Accordingly, the trial court vacated the fifteen-year sentence imposed for distribution of marijuana and imposed a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.
The defendant appeals, arguing that the sentence of life imprisonment is constitutionally excessive.2 In addition to his counsel-assisted brief, the defendant advances two assignments of error in proper person, asserting that the trial court erred in admitting testimony that violated the Confrontation Clause and, also, that he did not have the benefit of effective assistance of counsel.
Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. We have identified no such errors.
In addressing the underlying conviction for distribution of marijuana, the defendant argues in his brief filed in proper person that the trial court erred in permitting what he contends was impermissible hearsay testimony offered by the State. He argues that the acceptance of the various points of evidence, discussed below, violated the Confrontation Clause. See U.S. Const. amend. VI ; La. Const. art. 1, § 16.
The undercover drug purchase at issue in the distribution of marijuana case involved an undercover officer approaching an individual who, according to testimony, appeared to be a juvenile and who led them to the defendant's location. The defendant questions the State's use of the term “The Juvenile” in the reports of two officers involved in the undercover drug purchase rather than the use of the juvenile's name. The defendant suggests the individual's identity was known to all involved, that everyone was aware that the individual's mother was in a relationship with the defendant, and that the State should have been required to call the individual as a witness so as to permit cross examination. Absent this opportunity, the defendant argues, he could not conduct questioning regarding the video recording of the drug transaction and could not contest the undercover officer's testimony. The defendant also questions the State's failure to call an additional officer as a witness, although the witness was present at trial.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court explained that the Confrontation Clause prohibits the use of testimonial, out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine that witness. However, the defendant's focus in this argument does not address testimonial, out-of-court statements. The State largely presented its evidence through the testimony of the undercover agent who performed the drug transaction with the defendant. A DVD recording of the alleged exchange was admitted as well. Instead, the defendant complains of the contents of a police report, with references to “The Juvenile,” which was not introduced into evidence by the State, and is only contained elsewhere within the record. Similarly, the defendant asserts that he should have had the opportunity to cross-examine another officer who was present at trial but was not called by the State as a witness. The defendant has not connected that desired witness to any testimonial, out-of-court statement. Accordingly, the defendant's argument lacks merit.
The defendant also asserts that the State failed to establish the chain of custody with regard to certain evidence. First, the defendant contends that the underlying offense allegedly occurred on October 2, 2008, yet, the DVD recording of the alleged transaction was dated otherwise. Further, the defendant also questions the fact that the State presented a witness who testified regarding the lab results from the seized marijuana, but that the witness was not the individual who conducted the tests. In support of his argument, the defendant cites Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (). The defendant again contends that the State's presentation of evidence in this regard violated the Confrontation Clause.
With regard to the chain of custody of the marijuana, however, the defendant's trial counsel stipulated to the unbroken chain from the point of recovery from the officer to the courtroom. Accordingly, that issue was waived. Neither do we find merit in the defendant's contention that the State's witness who identified the retrieved substance as marijuana did not perform the testing. Rather, Rachel Wickman of the Acadiana Crime Lab testified that she personally performed testing on the submitted sample. The substance had been resubmitted for testing after the analyst who originally tested the substance became unavailable for trial. Thus, as presented, the State's evidence, as complained of by the defendant, does not violate Bullcoming, ––– U.S. ––––, 131 S.Ct. 2705. Accordingly, this assignment lacks merit.
Additionally, the defendant contends that both his trial and appellate counsel offered ineffective assistance. With regard to his trial counsel, the defendant contends that his attorney failed to adequately conduct pre-trial discovery and investigation. He asserts that such pre-trial investigation would have uncovered additional law enforcement officers involved in the investigation who could have been called as witnesses. Additionally, the defendant notes that a DVD of the alleged drug transaction was played at trial although no audio was available. He argues that other officers could have been called to narrate the DVD and the events captured therein. Finally, and with regard to appellate counsel, the defendant claims that his attorney should have raised the Confrontation Clause argument he raised in proper person, discussed above.
A criminal defendant is guaranteed the effective assistance of counsel pursuant to U.S. Const. amend. VI and La. Const. art. 1, § 13. In pursuit of such a claim of ineffective assistance of counsel, a defendant must establish “(1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.” State v. Leger, 05–0011, p. 44 (La.7/10/06), 936 So.2d 108, 142–43 (), cert. denied,549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). However, a claim of ineffective assistance of counsel is typically more properly resolved by post-conviction proceedings as it allows the trial court to conduct a full evidentiary hearing, if warranted. Id. However, if the appellate record contains sufficient evidence to review the defendant's claim, the matter may be considered on appeal in the interest of judicial economy. Id.
After review, we conclude that resolution of the defendant's claims regarding the adequacy of pre-trial discovery and decisions of representation regarding the calling of witnesses and lodging of arguments may require the testimony of those involved. Accordingly, we do not consider the defendant's assignment and relegate the argument regarding effective assistance of counsel to post-conviction relief.
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