State v. Hebert

• Decision Date: 11 April 2001
• Docket Number: No. 2000-KA-1052.,2000-KA-1052.
• Citation: 787 So.2d 1041
• Parties: STATE of Louisiana v. Neal A. HEBERT.
• Court: Court of Appeal of Louisiana — District of US

787 So.2d 1041

STATE of Louisiana v. Neal A. HEBERT.

No. 2000-KA-1052.

Court of Appeal of Louisiana, Fourth Circuit.

April 11, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Harry F. Connick, District Attorney, Orleans Parish, Val M. Solino, Assistant District Attorney, Orleans Parish, New Orleans, Counsel for Plaintiff/Appellee.

Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Counsel for Defendant/Appellant.

Court composed of Judges JOAN BERNARD ARMSTRONG, CHARLES R. JONES and JAMES F. McKAY, III.

ARMSTRONG, J.

STATEMENT OF THE CASE

On February 26, 1998 the State filed a bill of information charging the defendant and two codefendants¹ with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1). On March 13, 1998 the defendant pleaded not guilty.² After a motions hearing on October 2, 1998 the defense motion to suppress evidence was denied. On August 13, 1999 in writ 99-K-1928 this Court transferred the defendant's motion for speedy trial to the trial court for its consideration within thirty days if the defendant did not go to trial on August 18, 1999. On August 18, 1999 the trial court granted the State a continuance. On September 16, 1999 the court denied the defendant's motion for a speedy trial and granted the State another continuance. On September 20, 1999 trial was held, and the jury found the defendant guilty as charged. After several State continuances a multiple offender hearing was set for February 4, 2000. On that date the trial court sentenced the defendant to fifteen years at hard labor to run concurrently with any other sentence with credit for time served. The defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal, which were denied. The defendant filed a motion to reconsider sentence, which was denied. The trial court granted his motion for appeal. After the multiple offender hearing was held, the trial court found the defendant to be a triple offender and sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence to run concurrently with any other sentence. On appeal, the defendant raises three assignments of error.

STATEMENT OF THE FACTS

At the September 20, 1999 trial, Police Officer William Ceravolo testified that on December 19, 1997 he was involved in a narcotics investigation. Officer Ceravolo testified that Sgt. Mark Mornay had received information several days before (December 15, 1997 he believed). On December 15, 1997 (based on the original information) and December 18, 1997 (based on additional information) the officers conducted surveillance at 2509 St. Ann Street, apartment A. Officer Ceravolo observed two male subjects and a female subject, who appeared to have control of the residence from which the narcotics were being sold. There were three individuals whom he could identify. He watched as an unknown male approached the defendant, who was standing on the porch of apartment A, and the man gave the defendant what appeared to be currency. The defendant went into the apartment, returned moments later with a small object between his front small three fingers, and handed the small object to the other male, who walked away. Officer Ceravolo said that based on his prior observations and other information, he believed that he had witnessed a narcotics transaction. He also observed codefendant, Ojore Lemar, involved in what appeared to be a hand-to-hand narcotics sale on the same porch.

Officer Ceravolo testified that he obtained a search warrant on December 16, 1997. Upon executing the warrant and entering the apartment at around 12:25 a.m. on December 19th, the officer saw six pieces of crack cocaine sitting on the coffee table in the front room. Personally Officer Ceravolo seized a clear plastic bag containing six individually wrapped clear plastic white compressed rock-like substances commonly known as crack cocaine. The return on the warrant listed: a clear plastic bag containing five rock-like substances; six pieces of white rock-like objects in clear plastic; a large Ziploc bag containing white residue; $264.00 in currency ($60.00 belonged to Neal Hebert); one box of Good Sense sandwich bags; 26-9 mm. Luger unspent rounds; one BellSouth bill in the name of Melinda Hebert; one MCI certificate for $1.50 in her name; Melinda's I.D.; one BellSouth calling card; one .380 caliber blue steel Beretta; and one magazine, one magazine spring, and six live .380 caliber rounds.

On cross-examination Officer Ceravolo stated that Melinda Hebert lived at 2509 St. Ann Street. She was present when the search warrant was executed. The defendant indicated that his address was 25091k St. Ann Street. The officer stated that he found nothing in apartment A with Neal Hebert's name. He found several documents showing that the apartment belonged to Melinda Hebert. There was nothing to show that the defendant lived in that apartment. During surveillance conducted on the night of December 18, 1997, the officer was in an unmarked car, and he was wearing civilian clothes. He was fifty feet away and was positioned across the street. There were other units in the area. Officer Ceravolo saw the defendant, another man, and a small child on the porch; they went in and out of the japartment during the surveillance. The only lighting came from the porch light. He saw what he believed to be a hand-to-hand drug transaction involving cocaine. Officer Ceravolo admitted that he did not see the cocaine.

Officer Ceravolo testified that the defendant, Melinda Hebert's brother, said that he lived upstairs in the back of the residence. Seventeen officers executed the search warrant. When Officer Ceravolo arrived at the apartment to execute the warrant, the defendant was on the front porch; he was detained there. No contraband was found on the defendant. Another female, who was also on the front porch, was detained, but no contraband was found. The officers all entered through the front door; however, several officers had gone to the side of the house and broken a bathroom window as a diversion. Officer Ceravolo said that the officers had information that there were weapons inside, mostly near the front door for protection reasons. Melinda Hebert's small child was injured (cut requiring stitches) when the officers broke the window. Officer Ceravolo stated that he did not stop any purchasers during the surveillance because of manpower shortages. He had to ask the Eighth District for help in executing the warrant; he used a large number of officers because weapons were involved. The gun was found on the chair right inside the door. Officer Ceravolo stated that the defendant was just standing on the porch when he pulled up to execute the warrant. The officer said that he had already observed the defendant's actions for which he was being stopped and arrested.

On redirect Officer Ceravolo noted that numerous baggies were found inside the apartment. The ends had been cut off; that indicated that the baggies were to be used to package cocaine. That was a common method of packaging. Officer Ceravolo identified a large Ziploc bag with a white powder residue, which had been found in the kitchen near the garbage can. The officer stated that the residue was thought to be cocaine. Officer Ceravolo declared "[a]bsolutely" that the defendant was the person observed to be involved in the hand-to-hand transaction on the porch. On recross-examination Officer Ceravolo said that the defendant had $60.00 in currency, which was seized.

Sgt. Mark Mornay testified that he was involved in the execution of the warrant on December 19, 1997. He encountered the defendant and Gail Knight on the front porch and Melinda Hebert and Ojore Lemar inside. In the first room six pieces of crack cocaine were in plain view on a coffee table. Sgt. Mornay told Lemar that he was under arrest. He asked Lemar to cooperate and asked whether there were weapons in the residence. Lemar first started to the back of the apartment, but then he decided to tell the truth and took the officer to the first room. Under a cushion in the first chair in the apartment the officer found a .380 caliber handgun. He supervised the scene along with Sgt. Glasser.

On cross-examination Sgt. Mornay stated that the defendant lived at 2509 St. Ann Street; he was seen going in and out of the apartment at 2509 St. Ann Street prior to the officers' arrival. The sergeant said that he arrested Lemar and the others (except for Knight who was released) for being convicted felons in possession of a firearm. The officer noted that a diversion was created by breaking a window on the side of the house with a crowbar or other similar tool. A small child suffered lacerations to the hand and arm. Sgt. Mornay did not recall searching the defendant. No contraband was found on anyone. He established that Lemar and Melinda Hebert resided in the apartment, which was searched.

Officer Joseph Lainez, a narcotics detective, stated that he assisted in the entry of the apartment and securing the persons inside. He located what he believed to be cocaine on the mantelpiece in the second room of the residence. On cross-examination he noted that the defendant was outside on the front porch. He did not personally stop the defendant. Officer Lainez thought that the female Hebert lived in the apartment. He did not know exactly who lived there.

It was stipulated that if Officer William Giblin, the narcotics expert, had testified, he would have given the findings in his report, which was admitted into evidence. In the report Officer Giblin analyzed two of the State's exhibits. The six pieces of cocaine, the box of sandwich bags, the Ziploc bag with residue, the gun, and the lab report were admitted into evidence. The search warrant was admitted for the record only.

The defense called Walter Hebert, the defendant's father, who testified that he lived ...