State v. Hearold
| Decision Date | 29 June 1992 |
| Docket Number | No. 90-K-2094,90-K-2094 |
| Citation | 603 So.2d 731 |
| Parties | STATE of Louisiana v. Ricky Darren HEAROLD. |
| Court | Louisiana Supreme Court |
Louis G. Scott, Hunter, Scott, Blue, Johnson & Ross, for applicant.
Richard Phillip Ieyoub, Atty. Gen., Jerry L. Jones, Dist. Atty., Marcus R. Clark, Asst. Dist. Atty., for respondent.
The principal issues in this case involve the admission of hearsay evidence and the effect of that admission on the sufficiency of the evidence of intent to distribute methamphetamine.
On October 6, 1988, narcotics officers, acting on a tip from a confidential informer, stopped a car driven by defendant and owned by William Costin, a passenger in the car. Defendant attempted to evade the police, but lost control and the car became mired in the mud on the shoulder of the road.
A search of the men and the car did not produce any drugs or usual drug paraphernalia, but a book, Physicians' Desk Reference, was found in the car. The officers also found a small plastic bag on the ground in the tire track behind and under the rear tire on the driver's side. Since the bag had not been run over in the mud, the officers concluded that the bag had been thrown there after the car was stopped, probably when defendant had diverted their attention by throwing a soft drink bottle into the air as he got out of the car and walked toward the rear. The bag contained three and one-half grams (one-eighth ounce) of methamphetamine.
Defendant and Costin were charged with possession of methamphetamine with intent to distribute and with conspiracy to possess methamphetamine with intent to distribute. The prosecutor subsequently dismissed the charges against Costin.
At defendant's trial, the officers testified over defendant's objections that Costin told them at the scene "he did have a methamphetamine problem but he wasn't the one dealing tonight," that they had "received information that Mr. Costin and Mr. Hearold were involved in narcotics dealings in the eastern part of the parish," and that the informant told them "two persons had a quantity of methamphetamine and had that quantity for sale." Based on this and other hearsay testimony and on the methamphetamine found in the bag, the jury found defendant guilty on both charges.
The court of appeal affirmed the conviction of possession with intent, but reversed the conspiracy conviction because the record contained no evidence whatsoever of an agreement between defendant and Costin to possess methamphetamine with intent to distribute. 567 So.2d 132. The court further noted that the trial judge erred in admitting Costin's statement that "he wasn't the one dealing tonight" as a co-conspirator's statement because the prosecutor failed to establish a prima facie case of conspiracy and because the statement was not made while participating in a conspiracy and in furtherance of the objective of the conspiracy. Nevertheless, the court concluded without discussion that the improper admission of the statement did not prejudice defendant as to the possession with intent conviction. The court found sufficient evidence of intent to distribute in testimony "admitted without objection that law enforcement officials had received information that the defendant was trafficking in drugs," 567 So.2d at 135, along with testimony that an "eight ball" (one-eighth of an ounce) of methamphetamine was too large an amount for personal use.
We granted certiorari primarily to review the evidentiary and sufficiency issues. 577 So.2d 41.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. 1 When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
We accordingly proceed first to determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support the conviction.
The crime of possession of methamphetamine with intent to distribute is defined as follows:
A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II.
La.Rev.Stat. 40:967A(1). (emphasis added). Defendant does not contest the proof that he possessed the drug and that he did so knowingly; he vigorously contests, however, the proof of his intent to distribute the drug in his possession.
Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred. State v. Fuller, 414 So.2d 306 (La.1982); State v. Phillips, 412 So.2d 1061 (La.1982); La.Rev.Stat. 15:445. In State v. House, 325 So.2d 222 (La.1975), this court discussed certain factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant's possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.
The evidence against defendant consisted of Officer Benjamin's testimony that "we had received information [from the informer] that Mr. Costin and Mr. Hearold were involved in narcotics dealings in the eastern part of the parish"; 2 of Officer Benjamin's testimony that Costin told him at the scene "he [Costin] had a methamphetamine problem but he wasn't the one dealing tonight"; 3 of Officer Benjamin's testimony that he encountered defendant in Texas in July of 1988 while investigating another Ouachita Parish person "who is also a methamphetamine dealer" 4 and that while they found no drugs in the car occupied by defendant which was stopped during the Texas investigation, he believed "[w]e stopped them a little bit too early"; 5 of Officer Boney's testimony that he told defendant in April of 1988 he (Boney) had "received so many complaints on him concerning his involvement in drug traffic that there was a possibility he was going to end up in jail"; 6 of Officer Benjamin's testimony that he remembered "we had received several reports about him dealing out of that house"; 7 of methamphetamine in a bag that Officer Boney opined was packaged in bulk for a later breakdown for distribution to others and was too large an amount for personal use only; of Officer Benjamin's testimony that an "eight ball" of methamphetamine could yield "17 or 18 hits"; 8 and a copy of Physicians' Desk Reference, identified without explanation by Officer Benjamin as a "common item" found in association with drug distribution and characterized by the court of appeal as "some limited evidence" of intent to distribute.
In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Greenway, 422 So.2d 1146 (La.1982); State v. Harveston, 389 So.2d 63 (La.1980); State v. Willis, 325 So.2d 227 (La.1975).
In the present case there were no circumstances indicating that defendant intended to distribute the one-eighth ounce of methamphetamine that he possessed at his arrest. The drug was found in one package rather than in a number of smaller packages measured out in single doses. There were no weighing scales, plastic baggies or other paraphernalia normally used for measuring or packaging drugs for distribution. 9 Nor were any weapons or large sums of cash, items commonly seized in drug distribution arrests, found on defendant's person or in the car. While Officer Benjamin stated that a Physicians' Desk Reference is a common item found in drug distribution arrests, he did not explain the use of that book in connection with drug distribution. Certainly the fact that a Physicians' Desk Reference is found in a car, even when drugs are also found in the car,...
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