State v. Hayden, 98-KA-2768.

• Decision Date: 17 May 2000
• Docket Number: No. 98-KA-2768.,98-KA-2768.
• Parties: STATE of Louisiana v. Jerome J. HAYDEN.
• Court: Court of Appeal of Louisiana — District of US

767 So.2d 732

STATE of Louisiana v. Jerome J. HAYDEN.

No. 98-KA-2768.

Court of Appeal of Louisiana, Fourth Circuit.

May 17, 2000.

Rehearing Denied June 30, 2000.

J. Wilson Rambo, Louisiana Appellate Project, Monroe, LA, Counsel for Defendant.

Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MIRIAM G. WALTZER.

WALTZER, Judge.

Jerome Hayden appeals his conviction and sentence for possession of drugs and his adjudication and sentence as a habitual offender.

STATEMENT OF CASE

On 6 December 1995 Hayden was charged by bill of information with possession of cocaine in the amount of twenty-eight grams, but less than two hundred grams, a violation of LSA-R.S. 40:967. He pled not guilty. A motion hearing began on 2 February 1996 and continued on 15 February 1996. Following the hearing, the trial court found probable cause and denied the defendant's motion to suppress evidence. A twelve-member jury found the defendant guilty as charged on 17 April 1997. On the sentencing date, 30 April 1997, the State filed a bill of information charging the defendant as a multiple offender. The defendant pled not guilty to the bill. Following a hearing on 16 May 1997, the defendant was adjudicated a fourth felony offender and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence.

STATEMENT OF FACTS

On 29 September 1995 and on 5 October 1995, David Millen, a Special Agent with the Bureau of Alcohol, Tobacco and Firearms, received information from a paid confidential informant (C.I.) that the defendant, Jerome Hayden, was engaged in narcotics trafficking. Agent Millen testified that the confidential informant had worked with him for approximately a year and had provided information in the past that led to the seizure of narcotics and to the arrest and conviction of persons for drug violations.

The C.I. stated that the defendant was in possession of a large quantity of crack cocaine and was regularly dealing cocaine from an address on Gallier Street.¹ Although the C.I. did not give the exact address on Gallier Street, he stated that the residence from which the defendant would be selling the drugs was located approximately a block and a half on the river side of St. Claude, near the hospital. The C.I. described the defendant's facial features, i.e., he stated the defendant had a beard, a goatee, and a moustache. The C.I. also described the type of vehicle the defendant drove, i.e., a maroon or burgundy colored Chevrolet Celebrity in excellent shape. Furthermore, the C.I. stated that the defendant was known to be armed when he sold cocaine. Officer Dwayne Scheurmann of the New Orleans Police Department, Agent Millen's partner for this arrest, was not present when the informant initially gave this information to Agent Millen in September. However, he was present when the same information was again given to Agent Millen on 5 October 1995.

Agent Millen obtained a motion printout to verify certain information provided by the C.I. Agent Millen corroborated the following facts: the defendant was a convicted felon; the defendant had several arrests for narcotics; the defendant had carried a weapon in the past; and the defendant had an armed robbery conviction. As a result of the information received from the C.I. and the partial corroboration from the printout, Agent Millen and Officer Scheurmann set up surveillance on Gallier Street on 5 October 1995.

The two officers, in an unmarked, but identifiable, black Ford Taurus, drove to a location near the hospital on Gallier Street and set up surveillance. Shortly after they arrived, a maroon Celebrity, in excellent shape, stopped in the middle of the street about twenty-five feet behind the officers' vehicle. Agent Millen and Officer Scheurmann noticed that the driver of the vehicle, the defendant, matched the exact description given by the C.I. The defendant drove past the officer's vehicle and stopped directly in front of 931 Gallier Street. The defendant exited the vehicle and knocked on the door. As he exited the vehicle, he adjusted something in his waistband. Neither officer could see what was in the defendant's waistband; however, both officers testified that they suspected it was a gun, since the C.I. told them that the defendant was always armed when he distributed narcotics from this location. Furthermore, Agent Millen testified that based on his experience as an officer and the view he had of the defendant, he believed the defendant had a weapon.

As the officers drove up Gallier Street, they noticed that the defendant furtively looked up and down the street. The defendant knocked on the door and spoke to a woman for a minute.² He then turned around and sat down on the steps. The defendant's position further corroborated what the informant had said concerning the defendant's illegal activities. The officers did not observe anyone approaching as the defendant sat on the porch, nor did the officers observe any narcotics transactions. Nevertheless, Officers Scheurmann and Millen decided to approach the defendant to further investigate the matter. Prior to approaching the defendant, Officer Scheurmann noticed that the defendant appeared to remain vigilant as he scanned the area. When he noticed the officers approaching, he jumped to his feet and started beating on the door. When the defendant's sister, who was standing in the open door, saw the officers exiting the car, she yelled, "Run, Jerome." The defendant bolted into the house and ran towards the rear of the house. Believing him to be armed and worried about evidence being destroyed, Officer Scheurmann ran in after him and Agent Millen went to the rear. Once inside the house, Officer Scheurmann saw the defendant discard a Smith and Wesson revolver as he fled to the rear of the house. The defendant reached his hand from his left pocket into the closet. The officers later discovered several pieces of crack cocaine in the closet.

While Officer Scheurmann was handcuffing the defendant, the defendant yelled to his sister, urging her to "get to the car." Agent Millen took the keys from the defendant. No attempt was made to obtain a search warrant for the vehicle. Agent Millen peered into the driver's window of the defendant's car and saw a drink cup tray on the console with a bag of cocaine sitting in it. At that point, he opened the door to secure the cocaine.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to observe the twenty-four hour delay required between denial of a defense motion for new trial and sentencing of the defendant. LSA-C.Cr.P. article 873 provides:

Art. 873. Delay between conviction and sentence

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In the instant case, the defendant's motion for new trial was made on 16 May 1997, the same day the defendant was adjudicated a fourth felony offender and sentenced to life imprisonment. In State v. Augustine, 555 So.2d 1331, 1335 (La. 1990), the Louisiana Supreme Court held that failure to waive the twenty-four hour delay voided the defendant's sentence, if the defendant attacks his sentence, although the defendant fails to specifically allege this failure as an error on appeal. However, in State v. Seals, 95-0305 (La.11/25/96); 684 So.2d 368, 380, cert. den., Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), the Louisiana Supreme Court found that reversal of a sentence for failure to observe the statutory twenty-four hour delay was not warranted in the absence of prejudice. Noting the mandatory nature of the sentence imposed on the defendant, the court affirmed the sentence. In State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95); 661 So.2d 1078, 1083, writ denied 95-2557 & 95-2475 (La.2/2/96), 666 So.2d 1087, this court held that failure to observe the statutory delay was harmless error where the sentence to be imposed was mandatory.

In the instant case, the defendant was found to be a fourth felony offender. His last conviction was for a drug offense punishable by imprisonment for more than five years. Accordingly, LSA-R.S. 15:529.1 A(1)(C)(ii) mandated that the defendant be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. Because his sentence was mandatory, defendant was not prejudiced by the failure to observe the delay for sentencing.

Additionally, this court has recognized that a defendant may implicitly waive the twenty-four hour waiting period for imposing sentence by announcing his readiness for the sentencing hearing. State v. Jefferson, 97-2949 (La.App. 4 Cir. 4/21/99); 735 So.2d 769, 772.

In the instant case, after finding the defendant to be a fourth felony offender, the trial court asked if the defendant was ready for sentence. Defense counsel responded, "Yes, your Honor. We note an objection to the Court's ruling and note our intention to do whatever is necessary under the code." Only after the court had already imposed sentence did defense counsel request a new trial.

Although the defendant challenges his sentence on grounds of excessiveness, he has failed to show any prejudice from the failure to observe the delay. Defendant was not prejudiced because the sentence imposed was mandatory. Furthermore, by indicating his readiness for sentencing, the defendant implicitly waived the twenty-four hour delay for sentencing.

ASSIGNMENT OF ERROR NUMBER 1

Hayden argues that the...